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2007 DIGILAW 1208 (DEL)

UMED SINGH BHIST v. UOI

2007-05-31

S.N.AGGARWAL, T.S.THAKUR

body2007
T. S. THAKUR, J. ( 1 ) IN this petition for a writ of certiorari, the petitioner calls in question an order passed by the Summary Court Martial holding the petitioner guilty of an offence punishable under Section 54 (b) of the Army Act and sentencing him to undergo rigorous imprisonment for a period of one year besides dismissal from service. A mandamus directing the respondents to reinstate the petitioner in service with full backwages and other service benefits has also been prayed for. ( 2 ) THE petitioner was posted to 7 Kumaon Regiment during the relevant period. On 16th September, 1990, he was, together with Sepoy Padam Singh, Sepoy sadar Singh and Havildar Kundan Singh deployed for duty as Magazine Guards. Each one of the members of the team collected their personal weapons from the B coy armoury (kote) and reported for duty at the Magazine. Since the petitioner was not detailed as the first sentry by the Guard Commander, he appears to have kept his rifle in the rack, provided for the purpose and proceeded to the company lines. He returned to the Magazine later to relieve Sepoy Padam Singh from sentry duties but did not collect his personal weapon from the rack for doing so. In stead he took sepoy Padam Singh's rifle for that purpose which was against the existing instructions on the subject. After completing his duty hours the petitioner appears to have handed over the rifle of Sepoy Padam Singh to Sepoy Sadar Singh and left for the company lines without checking his personal weapon and/or reporting the loss thereof. The weapon issued to the petitioner was found missing from the Magazine Guard about which loss the petitioner could offer no explanation. A staff Court of enquiry was convened to enquire into the circumstances leading to the loss of the weapon in which the petitioner appears to have made a statement to the effect that he had sold his weapon to some civilian for Rs. 15,000/- and had illegal intercourse with a girl during the deal. In the Summary of evidence, however, that version was retracted by him. The petitioner was eventually tried for an offence punishable under Section 54 (b) of the Army Act for having lost by neglect the 7. 62 mm Self loading Rifle issued to him for official use. 15,000/- and had illegal intercourse with a girl during the deal. In the Summary of evidence, however, that version was retracted by him. The petitioner was eventually tried for an offence punishable under Section 54 (b) of the Army Act for having lost by neglect the 7. 62 mm Self loading Rifle issued to him for official use. Havildar Kundan Singh, Sepoy padam Singh and Sepoy Sadar Singh were also tried for commission of an offence punishable under Section 63 of the Army Act in as much as their actions were prejudicial to good order and military discipline. The Court Martial found the petitioner guilty and awarded him rigorous imprisonment for a period of one year besides dismissal from service. The missing rifle was subsequently recovered by the civil police at Almora from Sepoy Dhan Singh of Kumaon Regiment who was on annual leave during that time. A second Court of enquiry came to the conclusion that loss of rifle had primarily occurred due to gross negligence of the magazine Guard who did not carry out their duty as laid down in the Batallion standing Orders while guarding the Magazine Guards. Sepoy Dhan Singh was court martialled and dismissed from service w. e. f. 11th May, 1996. ( 3 ) AGGRIEVED by the conviction and sentence awarded to him, the petitioner filed C. W. 408/1995 in this court, which petition was eventually disposed of in terms of an order dated 6th December, 1996 extracted below: "pursuant to our order dated 4. 9. 1996, learned counsel for the respondent states that he had gone through the record, which suggest that disciplinary cases of the Magazine Guards, who had earlier been punished for the loss of weapon, were not reviewed de novo. "in view of what is stated in our order dated 4. 9. 1996 and in view of the statement of learned counsel for the respondent, no other or further direction deserves to be issued in the cases except by directing the respondent to act in accordance with the direction contained in clause (e) of para 2 of the order dated 15. 1. 1983 passed by the Lt. General Jameel Mehmood, General Officer commanding-in-Chief, Eastern Command by reviewing the case of the petitioner de novo and take appropriate action on merits thereon. The entire formalities will be duly completed within a period of three months from today. Ordered accordingly. 1. 1983 passed by the Lt. General Jameel Mehmood, General Officer commanding-in-Chief, Eastern Command by reviewing the case of the petitioner de novo and take appropriate action on merits thereon. The entire formalities will be duly completed within a period of three months from today. Ordered accordingly. Needless to add that it will be open for the petitioner, in case he would still feel aggrieved in case any order adverse is passed against him, to resort to appropriate remedy in accordance with law. Writ petition stands disposed of. Dast. " ( 4 ) THE petitioner"s grievance now is that the respondents have not, despite the above directions, reviewed his case de novo. It was argued by Mr. Virender Kumar, counsel for the petitioner that a de novo review of the proceedings was necessary not only in terms of the order dated 15th January, 1999 passed by General Officer Commanding-in-Chief, Eastern Command but also in terms of the direction issued by this court in the earlier petition filed by the petitioner. He urged that if the respondents had, in compliance with the said directions, reviewed the proceedings they would have set aside the punishment imposed upon the petitioner having regard to the fact that the missing weapon findings recorded against Sepoy Dhan Singh. On behalf of the respondents, it was on the other hand, contended that a review of the proceedings in compliance with the directions issued by the Commanding-in-Chief, Eastern Command and this court had indeed been made and the conviction and punishment of the petitioner re-affirmed. It was submitted that Sepoy Umed Singh had been found guilty of not doing his duty with the personal weapon issued to him for the purpose. He had, while performing his duty taken the weapon of Sepoy Padam Singh which was contrary to the standing instructions on the subject. It was further contended that the petitioner had pretended as if he had no knowledge of the whereabouts of his weapon which was missing from the magazine and that he had not reported the loss to anyone. It was only the other members of the guard who had detected and reported about the missing weapon issued to the petitioner. He had also been found guilty of not carrying out any physical check about the weapon while taking over the sentry duties and left the place of duty more than once. It was only the other members of the guard who had detected and reported about the missing weapon issued to the petitioner. He had also been found guilty of not carrying out any physical check about the weapon while taking over the sentry duties and left the place of duty more than once. He had not, thus, performed his duty diligently which led to the loss of the weapon issued to him. It was also contended that the eventual recovery of the missing weapon from Sepoy Dhan Singh, who was on annual leave during the relevant period, did not absolve the petitioner of his responsibilities or prove that he was innocent. It was contended that in the course of the de novo review of the proceedings, the authorities had come to the conclusion that the punishment awarded to the petitioner was just and fair and did not merit any clemency. ( 5 ) WE have given our anxious consideration to the submission made at the bar and perused the record. The challenge to the conviction and punishment of the petitioner for the charge of losing by neglect the weapon issued to him, was assailed in C. W. 408/1995 filed by the petitioner. That petition, as already noticed above, was disposed of with the direction that the case of the petitioner shall be reviewed de novo keeping in view the order passed by the general Officer Commanding-in-Chief, Eastern Command. The Court did not interfere with the order of conviction or the quantum of punishment imposed upon the petitioner. The short question that now falls for consideration of this court is whether the petitioner"s case was indeed reviewed de novo as directed by the General Officer Commanding-in-Chief, Eastern Command and as directed by this court in terms of its letter dated 6th December, 1996. The official record disclosing the review of the petitioner"s case has been produced before us in which we found an order dated 27th May, 1997 signed by Ravi Eipe, Lt. Gen. General Officer Commanding-in-Chief, Eastern Command. That order may be extracted in extensor for ready reference: "1. I agree with the recommendations of officiating General Officer commanding 4 Corps. 2. The official record disclosing the review of the petitioner"s case has been produced before us in which we found an order dated 27th May, 1997 signed by Ravi Eipe, Lt. Gen. General Officer Commanding-in-Chief, Eastern Command. That order may be extracted in extensor for ready reference: "1. I agree with the recommendations of officiating General Officer commanding 4 Corps. 2. In keeping with the directions of the then General Officer commanding-in-Chief, Eastern Command issued vide Case No 201340/103/a1 (1) dated 15 Jan 93, the case in respect of No 4182215w Sepoy Umed Singh of 7 KUMAON has been reconsidered de-novo. 3. In view of the act of dereliction of duty on the part of above individual, I am of the opinion that the punishment awarded by the Summary Court martial is just and fair and does not merit any clemency. I, therefore, direct that finding and sentence of Summary Court Martial in respect of the above individual not be interfered with. Station:calcutta-21 (Ravi Eipe) (Lieutenant General) dated:27 May 97 General Officer Commanding-in Chief" ( 6 ) A reading of the above would show that the General Officer Commanding- in-Chief, Eastern Command has, pursuant to the directions of his predecessor and the order passed by this Court, considered de novo the case of the petitioner and found that in view of the act of dereliction of duty on the part of the petitioner, punishment awarded to him by the Summary Court Martial was just and fair and did not merit any clemency. In the light of the above order, it is no longer possible for the petitioner to contend that his case was not reviewed de novo as directed by the General Officer Commanding-in-Chief, Eastern Command or this Court. Even otherwise the circumstances which the petitioner proposed to bring forth for consideration in the course of review was the fact that the missing weapon had been eventually recovered from Sepoy Dhan Singh. That recovery and the punishment imposed upon Sepoy Dhan Singh would not make any material difference so long as the petitioner was unable to take care of the weapon resulting in its theft either by Dhan Singh or by someone else who then passed the same on to Dhan Singh. That precisely was the charge against the petitioner. That recovery and the punishment imposed upon Sepoy Dhan Singh would not make any material difference so long as the petitioner was unable to take care of the weapon resulting in its theft either by Dhan Singh or by someone else who then passed the same on to Dhan Singh. That precisely was the charge against the petitioner. Neglect in the performance of the duty and in taking care of the weapon issued to the petitioner leading to the loss of the weapon itself is what was alleged and proved against the petitioner in the course of his Summary Court martial. The mere recovery of the weapon from a person other than the petitioner would not show that the petitioner was not negligent in taking care of the weapon or that the weapon was never lost. The respondents were, therefore, perfectly justified in holding that the recovery of the missing weapon from Sepoy Dhan Singh did not, in any way, mitigate the offence committed by the petitioner, so as to call for any interference with the sentence imposed upon him. ( 7 ) IN the result, this petition fails and is hereby dismissed but in the circumstances without any order as to costs.