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2006 DIGILAW 291 (GAU)

Nripen Sarma v. Union of India

2006-03-24

BIPLAB KUMAR SHARMA

body2006
JUDGMENT B.K. Sharma, J. 1. The writ petitioner who was appointed as Sepoy under the respondents is aggrieved by the order of dismissal from service passed against him pursuant to a Summary Court Martial. His petition against the order pursuant to the Summary Court Martial has also been rejected. Hence, this writ petition. 2. Adverting to the facts of the case, the petitioner was appointed as Sepoy under the respondents pursuant to his participation in a recruitment rally organized by the respondents and his selection thereof. After serving as such in different places, he was lastly posted at Dimapur (Nagaland). He was sent for training in 1984 and on successful completion of the same, joined as Sepoy at 309, Field Ambulance at Merut (UP) in 1987. While he was serving as such, a Court of enquiry was initiated against him by an order issued on 23.09.97. 3. The allegations against the petitioner was that he committed rape/attempted to commit rape on one of the indoor patients in the hospital. The Court of Enquiry recorded the following findings: ANNEXURE-I FINDINGS OF THE COURT 1. Miss Sangita Singh daughter of No. 14560784P Hav Rohtash Singh of 12 R&O fit, was admitted in 165 MH on 15 September 1997 for Bronchopneumonia. She was visited by her parents everyday. (Witness Nos. 2 and 5). 2. No. 13960154M Nk/NA Nripen Sarma was called to 165 MH between 2200 and 2330hrs on 22 September 1997 to issue 'baby kit' from the store to the duty nursing offr. Nk/NA Nripen Sarma after handing over the 'baby kit' entered the room where Miss Sangita Singh and Smt. Savotro Devo wife of Ex-Nk Jichu Prasad were admitted, in contravention for the existing orders. As per his claim, he went inside the room to put off the extra lights which were on. He actually put off all the lights in the room. The Exact duration of his stay inside the room could not be ascertained. The NCO, by entering the room, at night without lady attendant, had violated the existing orders on the subject (Witness No. 1, 2, 5 and 6). 3. Miss Sangita Singh is said to have been found lying on her abdomen on her bed with her payjama removed by wife of Ex-Nk Jichu Prasad. The NCO, by entering the room, at night without lady attendant, had violated the existing orders on the subject (Witness No. 1, 2, 5 and 6). 3. Miss Sangita Singh is said to have been found lying on her abdomen on her bed with her payjama removed by wife of Ex-Nk Jichu Prasad. The lady is said to have seen sticky fluid on thighs of Miss Sangita Singh, which was wiped off by her before putting on the payjama. Thereafter the incident was reported by her to MH authorities. (The statement of Smt. Savitri Devi wife of Ex-Nk Jichu Prasad could not be recorded as she was not available at the address given by her to MH. However, her statement recorded by Nb Sub Balbir Singh, The Chief Ward Master of 165 MH, before she was discharged, was produced to the Court by witness No. 8 and is all at exhibit 'E'). (Witness No. 1,2,3,6, 7 and 8). 4. Bed sheet on the bed of Miss Sangita Singh's bed was found stained with a sticky, fishy smelling fluid. The bed sheet was taken into possession by the Adm Offr and was produced to the Court by witness No. 8. This bed sheet and samples of blood and semen of No. 13960154M Nk/NA Nripen Sarma, were sealed in presence of the Court and fwd for forensic examination to the Department of Serological and Chemical Examination, Govt. of India, 3 KYD Street, Calcutta vide our letter No. 47069/ SSK/C of I dt. 07 October 97. (Copy att at exhibit 'A'). (Witness Nos. 1, 2 and 8). 5. No traces of blood or injury were found on medical examination of Miss Sangita Singh's vulval area by Duty nursing officer and DMO. Miss Sangita Singh was found absolutely normal for her age on examination by the Gynecologist. (Witness No. 1, 2 and 4). 6. Miss Sangita Singh was woken up by Smt. Savitri Devi, wife of Ex-Nk Jichu Prasad on 22 September 1997 at around 2300h. The girl does not remember anyone having touched her before that nor is there any eye witness to that effect. (Witness No. 9). However, possibility of a person standing next to the bed and masturbating cannot be ruled out. This will be confirmed on receipt of medical examination report. 7. The girl does not remember anyone having touched her before that nor is there any eye witness to that effect. (Witness No. 9). However, possibility of a person standing next to the bed and masturbating cannot be ruled out. This will be confirmed on receipt of medical examination report. 7. Adequate check of focus before admitting Smt. Savitri Devi to MH was carried out, however, no system exists to establish the authenticity of these documents. (Witness No. 10). 8. Argd. of 1 NCO and 6 ORS is detailed at main gate of 165 MH, In addition, a patrol of stf 1 NCO and 03 ORS cover the area from 12 H&D Fit Qr gd to 5003 ASC Bn gate. All wards are manned by duty nursing assistant/safaiwala. In addition Duty JCO and Duty NCO are present in the hospital in off parade hours to assist DMO to ensure security instructions are being followed by all. (Witness No. 8). 9. The family ward is fenced. The verandah is completely closed with a wife mesh grill on all sides with only one from inside at night. Any patient reporting to the family ward last light has to use the call bell provided at the entrance. The nursing Off/Staff on duty permits the patient inside after checking the gentleness of the case. No males are permitted to enter the family ward except staff on duty, that too when accompanied by female attendants (Within No. 4 and 8). This point has been emphasized in Sainik Sammelan held in March 1996. Presiding Offr - Sd/- (IC-470698 Maj S.S. Khera) HQ 3 Corps Engrs Branch Members - 1. Sd/- (SB- 36342 Cpt Unnikrishanan 2. Jc-226207 Sub G.S. Thapa, 3 Corps Cmp Annexure-II OPINION OF THE COURT The Court is of the opinion that- 1. From the statement of witness and medical examination the offence of rape/attempt to rape has not been committed against Miss Sangita Singh, daughter of No. 14560784P Hav Rohtash Singh of 12 R&D fit. 2. An attempt to molest Miss Sangita Singh may have been made which can be confirmed on receipt of forensic examination report. Also involvement of No. 1396014M Nk/NA Nripen Sarma in the same can be determined from the said report. 3. No. 13960154M Nk/NA Nripen Sarma of 165 MH, entered the room of Miss Sangita Singh and switched off the lights on 22 September 1997 between 2230h and 2300h. Also involvement of No. 1396014M Nk/NA Nripen Sarma in the same can be determined from the said report. 3. No. 13960154M Nk/NA Nripen Sarma of 165 MH, entered the room of Miss Sangita Singh and switched off the lights on 22 September 1997 between 2230h and 2300h. He was not accompanied by any female attendant in contravention to the existing orders. Court is not in a position to establish duration of his stay in the room. Action as deemed fit may be initiated against the NCO for violation of orders. 4. It appears that adequate arrangements exists in 165 MH for the security of patients. However, the point of personal conduct of hospital staff towards patients needs to be emphasized more often. 5. A system to check/establish the authenticity of the documents produced by the patient to prove his/her identity at compromising on the need to provide immediate medical attention to serious cases. Presiding Offr - Sd/- (IC-47069P Maj S.S. Khera) HQ 3 Corps Engrs Branch Members - 1. Sd/- (SB- 36342 Cpt. Op Unnikrishanan 57 Mtn DOU 2. Jc-226207 Sub G.S. Thapa, 3 Corps Cmp Annexure-III FINDINGS OF THE COURT IN LIGHT OF ADDITIONAL EVIDENCE In addition the earlier findings of the Court, the following has come to light.- 1. The sticky staying on the bed sheet taken off from Miss Sangita Singh's bed was caused due to human semen (Exhibit "F"). 2. The semen found on the bed sheet taken off from bed of Miss Sangita Singh belonged to No. 13960154M Nk/NA Nripen Sarma of MH. (Exhibit "G") Presiding Offr - Sd/- (IC-47069P Maj S.S. Khera) HQ 3 Corps Engrs Branch Members - 1. Sd/- (SB- 36342Y Cpt. Op Unnikrishanan 2. Sd/- Jc-226207 Sub G.S. Thapa, 3 Corps Cmp Annexure-IV OPINION OF THE COURT IN LIGHT OF ADDITIONAL EVIDENCE In addition to the opinion expressed by the Court earlier, the Court is of the opinion that- 1 No. 13960154M Nk/NA Nripen Sarma of 165 MH is to be blamed for entering the room of Miss Sangita Singh daughter of No. 14560782 Hav. Rohtash Singh of 12 R&D Fit and ejaculating on the bed she was sleeping. The Court is not in apposition to specify whether the indl has touched the girl or not in the process. 2. The disciplinary action, as deemed fit may be initiated against the NCD. Rohtash Singh of 12 R&D Fit and ejaculating on the bed she was sleeping. The Court is not in apposition to specify whether the indl has touched the girl or not in the process. 2. The disciplinary action, as deemed fit may be initiated against the NCD. Presiding Offr - Sd/- (IC-47069P Maj S.S. Khera) HQ 3 Corps Engrs Branch Members - 1. Sd/- (SB- 36342Y Cpt. Op Unnikrishanan 2. Sd/- Jc-226207 Sub G.S. Thapa, 3 Corps Cmp 4. After the aforesaid Court of Enquiry findings and opinion, the petitioner was intimated by his Commanding Officer that he would be tried by the Summary Court Martial (SCM) for the offence committed under Army Act, 1950 (Section 46A). Copies of the summary of evidence and additional summary of evidence along with the charge sheet were also enclosed. The charge sheet reads as follows: CHARGE SHEET The accused No. 13960154M NAIK/NURSING ASSISTANT NRIPEN SARMA of 165 Military Hospital is charged with: Army Act Sec. 46A "DISGRACEFUL CONDUCT OF AN INDECENT KIND" In that he, As filed, on 22 Sept. 97, while performing the duties of ward master of family ward, ejaculated on the bed of Miss Sangita Singh daughter of No. 14560784 Hav. Rohtash Singh of 12 (Independent) Race and Observation Flight, who was admitted as in patient in the family ward of 165 Military Hospital. Sd/- (Ved Rattan) Colonel Commanding officer 5. After the aforesaid developments the Summary Court Martial was held and according to the petitioner the respondents No. 3, 4, 5 and 6 who have been arrayed as party respondents by name requested the petitioner to plead guilty of the charge framed against him with the assurance that upon such pleading of guilty minimum amount of punishment would be awarded. It is the case of the petitioner that neither the summary of evidence nor the allegations of the charge sheet were read over to him. On the other, he was forced to sign on some documents in the proceeding. According to the petitioner he was unaware of the procedure adopted towards finalisation of the proceeding. Be it stated here that the proceeding commenced on 31.01.98 and on the same date the petitioner was awarded with the penalty of R.I. for six months and dismissal from service. According to the petitioner he was unaware of the procedure adopted towards finalisation of the proceeding. Be it stated here that the proceeding commenced on 31.01.98 and on the same date the petitioner was awarded with the penalty of R.I. for six months and dismissal from service. It appears that the petitioner by his representation dated 31.01.98 requested the Commanding Officer to provide him the complete set of Summary Court Martial proceedings. 6. In the impugned order dated 31.01.98 it has been recorded that the petitioner pleaded guilty of the charge and it was on that basis the petitioner was awarded with the aforesaid penalties. 7. Being aggrieved by the order of penalty, the petitioner made an application Under Section 164 of the Army Act, 1950 to the General Officer, Commanding-in-Chief specifically taking the ground that SCM was convened irregularly and he was forced to plead guilty with the assurance that upon signing the documents before the SCM he would be made free of the charge. Another plea raised was that the charge Under Section 46(A) of the Army Act was not read over to him and that the same was fabricated and false. Thereafter by the impugned communication dated 28.11.98, the petitioner was furnished with the order passed by the General Officer, Commanding-in-Chief holding that the points raised by the petitioner lacked merit as the crime committed by the petitioner was of very indecent nature. It was also indicated that the punishment awarded was just and legal. Thus, the application submitted by the petitioner stood rejected. 8. The respondents have filed their counter affidavit denying the contentions raised by the petitioner. They have denied that the petitioner was forced to plead guilty and/or to sign the documents. According to them the petitioner voluntarily pleaded guilty and the general effect of such plea of guilty was explained to him in accordance with Rule 115(2) of the Army Rules. They have also denied the allegations made by the petitioner that the charge was not read over to him. According to them the sample of semen taken from the bed sheet and the semen subsequently furnished by the petitioner voluntarily tallied with each other and accordingly the offence committed by the petitioner was established. They have further stated that the petitioner was provided with all reasonable opportunities in the SCM including the assistance of the defence counsel. 9. According to them the sample of semen taken from the bed sheet and the semen subsequently furnished by the petitioner voluntarily tallied with each other and accordingly the offence committed by the petitioner was established. They have further stated that the petitioner was provided with all reasonable opportunities in the SCM including the assistance of the defence counsel. 9. The petitioner has submitted his rejoinder affidavit denying the contentions raised in the counter affidavit and reiterating and reaffirming the contentions raised in the writ petition. 10. I have heard Mr. P. Katakey, learned Counsel for the petitioner and Mr. H. Rahman, Addl. Solicitor General appearing for the respondents. 11. The conviction and sentence of the petitioner with the resultant dismissal from service is solely on the basis of the purported admission of guilt by the petitioner. As noticed above, the SCM was preceded by the Court of enquiry. The finding and opinion have been noted above. It was the specific opinion of the Court that the petitioner did not commit the offence of rape/attempt to rape and that an attempt to molest the girl might have been made which could be confirmed on receipt of the forensic examination report. As per the said opinion the involvement of the petitioner could only be determined from the report. Be that as it may, the Court of enquiry recommended for disciplinary action against the petitioner. 12. Learned Counsel for the petitioner submitted that in view of the recommendations for disciplinary action, the Army authorities could not have resorted to SCM. The charge against the petitioner has been quoted above. The petitioner was furnished with the charge sheet dated 29.01.98 and the SCM was held on 31.01.98 with the resultant order of penalty passed on the same date. The petitioner has annexed photocopies of the proceeding sheets dated 31.01.98 as Annexure-VII. 13. The Annexure-VII contains as many as 10 sheets from page No. 34 to 43 in the writ petition (internal page A to J). It is only at page B (running page 35) the signature of the petitioner appears and in other pages his signatures are not to be found which in the normal circumstances ought to have been there so as to conclusively establish that the petitioner accepted the proceeding and as a token of such acceptance put his signature in each page. It is only at page B (running page 35) the signature of the petitioner appears and in other pages his signatures are not to be found which in the normal circumstances ought to have been there so as to conclusively establish that the petitioner accepted the proceeding and as a token of such acceptance put his signature in each page. It is at page B, the petitioner by his answer to the question as to whether he was guilty or not of the charge framed against him, allegedly pleaded guilty. For a ready reference the contents of page No. B of the proceeding sheets are quoted below: The charge sheet is read (translated) and explained to the accused signed by the Court and attached to the proceedings. Instructions: The sanction of superior authority for trial by Summary Court Martial should be entered with the date and signature of the Officer as the foot of the charge sheet, when sanction is necessary (Sec. AA Sec. 120(2)) ARRAIGNMENT Question to the accused: By the Court— How say you 13960154-M Naik/Nur Asst. Nripen Sarma are you guilty or not guilty of the said charge preferred against you. Answer: Guilty Question: Are you guilty or not guilty of the Court charge? Answer If the accused pleads guilty to any charge the provisions of Army Rule 115(2) must be complied with and the fact that has been done recorded. The accused having pleaded guilty to said charge, the provision of Army Rule 115(2) are here complied with. Sd- Nk/NA/ Nripen Sarma No. 13960154M Before recording the plea of guilty offered by the accused the Court explained to the accused the meaning of the charge to which he had pleaded guilty and ascertained that the accused had understood the nature of the charge to which he pleaded guilty. The Court also informed the accused the general effect of the plea and the difference in procedure, which will be followed consequent to the said plea. The Court having ascertained/satisfied itself that the accused understood the charge and the effect of his plea of guilty accept and record the same. The provision of Section 115(2) or thus complied with. 14. As per the aforesaid proceeding, the charge was read out and explained to the petitioner and the petitioner pleaded guilty to the question as to whether he was guilty or not guilty of the charge framed against him. The provision of Section 115(2) or thus complied with. 14. As per the aforesaid proceeding, the charge was read out and explained to the petitioner and the petitioner pleaded guilty to the question as to whether he was guilty or not guilty of the charge framed against him. However, there was no answer to the second question--"Are you guilty or not guilty of Court Charge?" The requirements of Rule 111 of the Army Rules 1954 is that apart from the initial charge, the accused shall be arraigned on the charge or charges against him after observing the formalities. Thereafter the charge/charges on which the accused is arraigned shall be read and, if necessary, translated to him, and he shall be required to plead separately to each charge. 15. From the proceeding at page B of the SCM, although it appears that the translated charge signed by the Court was read over and explained to the accused, there was no answer in respect of the question put to him as to whether he was guilty or not guilty of the Court's charge. This is precisely the reason as to why the column "answer" to the second question is blank. However, in the answer to the first question pertaining to the charge as was initially framed, the word "guilty" appears. It is on that basis the petitioner was convicted and dismissed from service. The authorities who held the SCM in their wisdom thought it prudent to obtain the signature of the petitioner only at page B and not in other pages, although the entire proceeding was recorded in 10 pages and in none of these pages, except the page No. B the signature of the petitioner appears. The question thus, necessarily arises as to whether such a proceeding can be said to be a valid proceeding regarding the plea of guilty of the petitioner. 16. As per the requirement of Rule 115 of the Army Rules, 1954 the plea of guilty or not guilty shall be recorded in each charge. The question thus, necessarily arises as to whether such a proceeding can be said to be a valid proceeding regarding the plea of guilty of the petitioner. 16. As per the requirement of Rule 115 of the Army Rules, 1954 the plea of guilty or not guilty shall be recorded in each charge. Sub-rule 2 of Rule 115 mandates that if an accused person pleads guilty, that plea shall be recorded as the finding of the Court; but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary of evidence (if any) or otherwise that the accused ought to plead not guilty. 17. Thus, from the above it will be seen that the procedure regarding recording the plea of guilty is somewhat akin to the procedure to be followed while recording confessional statement Under Section 164 of the Code of Criminal Procedure. In the instant case, such procedure as envisaged under Rule 115(2) of the Rules of 1954 was not followed. Apart from the fact that there was no answer to the second question, there is also nothing on record to show that the SCM ascertained that the petitioner understood the nature of the charge and that he was informed of the general effect of the plea of guilty and also that he was apprised of the different procedure to be followed in case of the plea’ of guilty. There is also nothing on record to show that the petitioner was advised to withdraw the plea of guilty. The SCM was conducted and the proceedings thereof were recorded in printed forms and the relevant columns were only filled up without following the procedure laid down in Rule 115(2) of the Rules of 1954. 18. The respondents, in reference to Sub-rule 2 A of Rule 115, which has been quoted in verbatim in the proceeding sheet at page B, have contended that the procedure envisaged under Rule 115(2) of the Rules had been followed. 18. The respondents, in reference to Sub-rule 2 A of Rule 115, which has been quoted in verbatim in the proceeding sheet at page B, have contended that the procedure envisaged under Rule 115(2) of the Rules had been followed. Sub-rule 2A of Rule 115 is the format in which the factum of following the procedure as envisaged under Sub-rule (2) is to be recorded. It is this format which was inserted in the proceeding. In fact, the entire proceeding was recorded in the format prepared beforehand. However, merely because the format prescribed in Sub-rule 2A was incorporated in the proceeding, same by itself cannot be said to be the proof of following the procedure envisaged under Sub-rule 2. The fact that the signature of the petitioner was not obtained in each page of the proceeding sheets; that there was no answer to the second question and that Sub-rule 2A was quoted in verbatim would go to show that the procedure envisaged in Sub-rule 2 was not followed. There ought to have been a mention that the ingredients of recording the plea of guilty were duly observed and as a token of the same the matter of recording the same as per requirement of Sub-rule 2A was followed. 19. As per Rule 116 of the Army Rules, 1954, the SCM will proceed on the charge on which a plea of "guilty" has been entered. The specific plea of the petitioner in paragraph 14 of the writ petition that the provisions of Rule 115(2) and Rule 116 of the Rules were not followed, has been dealt in a cryptic manner by the respondents in their counter affidavit. It is significant to note that at page C of the proceeding sheets, the following question and answer have been recorded: PROCEEDING ON A PLEA OF GUILTY The accused No. 1396054M Naik/Nur Asst. Nripen Sarma of the 105 Military Hospital (is found guilty of the charge (all the charges) is found guilty of the charge and is found not guilty of the charge). The summary of evidence is read (translated), explained, marked Exhibit 'K' signed by the Court attached to the proceedings. Question to the accused: Do you wish to make any statement in reference to the charge in mitigation of punishment? Answer: The accused says: I do not want to make any statement in reference to the charge. The summary of evidence is read (translated), explained, marked Exhibit 'K' signed by the Court attached to the proceedings. Question to the accused: Do you wish to make any statement in reference to the charge in mitigation of punishment? Answer: The accused says: I do not want to make any statement in reference to the charge. I will abide by any punishment awarded to me. At this stage the Court ascertained from the accused whether he wants to change his plea of guilty or whether he wants to change his statement, the accused declined to do so. Question: Do you wish to a call any witnesses as to character? Answer: No. 20. There is no signature of the petitioner as a mark of acceptance of the aforesaid answer allegedly given by him. As noticed above, it is only at page B of the entire proceeding sheets where the alleged plea of guilty of the petitioner was recorded, the signature of the petitioner appears. Thus, such unsigned statement/answer of the petitioner could not have been made use of so as to return the conviction and sentence with consequential dismissal from service. 21. According to the respondents, the SCM was conducted after it was confirmed by the central forensic science laboratory that the stain in the bed sheet and the semen of the petitioner had matched. It appears that the forensic laboratory report was made use of and for the purpose of acceptance of the same, additional summary of evidence by way of witness No. 7 in the Court of enquiry was relied upon. The respondents in their counter affidavit have annexed the statement of the witness No. 7. The statements pertain to the fact of taking samples to the forensic science laboratory etc. and as per the statement, the report concluded that both the substance, i.e. the substance in the bed sheet and the semen of the petitioner, were consistent. It is to be noted that both the report along with the statement of the witness No. 7 was relied upon, but the author of the report was not examined to prove the report. 22. It is to be noted that both the report along with the statement of the witness No. 7 was relied upon, but the author of the report was not examined to prove the report. 22. Rule 182 of the Army Rules 1954 provides that the proceeding of Court of enquiry, or any confession, the statements or answer to a question made or given at a Court of inquiry, shall not be admissible in evidence against a person subject to the Act, nor shall any evidence respecting the proceedings of the Court be given against any such person except upon the trial of such person. The proviso to the said rule further provides that the proceeding may be used by the prosecution or the defence for the purpose of cross-examining any witness. Thus, except only for the purpose of cross-examining any witnesses, the same cannot be relied upon so as to return the finding of guilt. The statement of witness No. 7 was a previous statement made during the course of enquiry and as per the provision of Rule 182, same was admissible only to the extent of cross-examining the witness at the time of SCM and not to the extent of making use of the same towards returning the finding of guilt. 23. Apart from the above, the entire proceeding adopted towards obtaining the forensic science laboratory report was behind the back of the petitioner and he was never associated with the process. The specific plea of the petitioner is that even the assistance of the friend was not forthcoming. It is the specific case of the petitioner that none of the respondents including the friend who have been made party respondents by name with the specific allegations of flouting the procedure to be followed have not been specifically dealt with by the respondents in their counter affidavit. In fact, hone of the respondents (respondents No. 3 to 6) who have been made party by name has filed any individual affidavit denying the allegations made by the petitioner against him, the Apex Court in the case of N.K. Singh v. Union of India as reported in (1995) I LLJ 854 SC, observed the following: 20. We may observe that we do not approve of the manner in which the Tribunal proceeded to decide the case. We may observe that we do not approve of the manner in which the Tribunal proceeded to decide the case. Allegations of mala fides having been made by the appellant on affidavit, it is difficult to fathom how the Tribunal rejected them without even requiring a counter-affidavit to rebut them. The Tribunal's perception that the allegations made on affidavit by the appellant even without any rebuttal do not constitute the plea of mala fide, is obviously incorrect. The Tribunal also did not appreciate the true extent of scrutiny into such a matter and the grounds on which a transfer is judicially reviewable. The conclusion we have reached in the present case is for the reasons given by us and not those which impelled the Tribunal to reject the appellant's claim. 24. The petitioner being aggrieved by the order of conviction, sentence and dismissal from service made an application Under Section 164 of the Army Act, 1950 dealing with the grounds for interference with the same. However, the Army authority simply rejected the same on grounds that the points raised by the petitioner lacked merit as the crime committed by the petitioner was a very indecent nature. It is not the question as to whether the purported offence committed by the petitioner was an indecent one or not. The question was as to whether the petitioner was guilty of the offence and the procedure envisaged towards establishing the guilt was duly followed or not. 25. On a total reading of the materials on record, it leads to irresistible conclusion that the respondents and for that matter the officers involved in the proceeding were with certain frame of mind to somehow return the guilt against the petitioner and in the process they hastily conducted the SCM recording the purported plea of guilty on the part of the petitioner, unmindful of the procedure to be followed and/or the true import and purport of such procedure. This is precisely the reason as to why the things moved in quick succession. The charge sheet was issued on 29.01.98, the SCM was held on 31.01.98 and the order of conviction, sentence and dismissal from service was also passed on the same date. 26. This is precisely the reason as to why the things moved in quick succession. The charge sheet was issued on 29.01.98, the SCM was held on 31.01.98 and the order of conviction, sentence and dismissal from service was also passed on the same date. 26. In view of the above, I am of the considered opinion that the impugned order dated 31.01.98 convicting, sentencing and dismissing the petitioner from service and also the order dated 28.11.98 including the communication dated 25.11.98 by which the said order was conveyed are not sustainable in law and accordingly, they are all set aside and quashed. As a natural consequence the petitioner should be reinstated in service by issuing formal order and the petitioner shall be deemed to be in service all throughout. However, it is made clear that the petitioner shall not be entitled to any back wages for the period of absence, but his pay shall be fixed notionally upon reinstatement in service. Writ petition is allowed. However, there shall be no order as to costs. Petition allowed.