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Allahabad High Court · body

2009 DIGILAW 779 (ALL)

MEHAR CHAND v. UNION OF INDIA MINISTRY OF DEFENCE NEW DELHI

2009-03-16

S.U.KHAN

body2009
S. U. KHAN, J. Heard learned Counsel for the parties. 2. Petitioner was a Sepoy in Indian Army. He was recruited in 1979. In the year 1986 petitioner was attached to 104 Engineer Regiment, Allahabad. Petitioner was charged with dereliction of duty on the allegation that he had left the guard duty without order from his superior officers on 8. 5. 1986. Petitioner pleaded not guilty and asserted that he was absent from quarter guard only during the time when he was not doing duty of No. 1 sentry. The time when petitioner was found absent was in between 3. 10 a. m. to 4. 10 a. m. on 8. 5. 1986. Petitioner was charged with the misconduct as described under section 36 (d) of Army Act. A summary Court Martial was held in which petitioner was found guilty and sentenced to suffer rigorous imprisonment for six months in civil prison and he was also dismissed from service. The order was passed on 29. 5. 1986 which is contained in Annexure 2 to the writ petition and has been challenged through this writ petition. Against the said finding/order peti tioner filed appeal under section 164 of Army Act which was rejected in April 1988. Copy of the rejection order is Annexure 4 to the writ petition and the same has also been challenged. 3. One of the main arguments of the learned Counsel for the petitioner was that absolutely no reason was given in the punishment order. It is correct that in the punishment order or in the appellate order no reason has been given. However, detailed reason has been given in para 23 of the counter affidavit. The Supreme Court in the Constitution Bench Authority in S. N. Mukherjee v. Union of India, AIR 1990 SC 1984 (Para 43), has held that in Court Martial it is not necessary to record any reason while recording the finding and sentence except when the Court makes a recommendation to mercy. The said authority has also been referred to in Union of India v. Shivendra Bikaram Singh, AIR 2003 SC 2481 . 4. The other argument of learned Counsel for the petitioner is that at the relevant time (3. 10 am to 4. 10 am on 8. 5. 1986) petitioner was not on actual duty of No. 1 Sentry. The said authority has also been referred to in Union of India v. Shivendra Bikaram Singh, AIR 2003 SC 2481 . 4. The other argument of learned Counsel for the petitioner is that at the relevant time (3. 10 am to 4. 10 am on 8. 5. 1986) petitioner was not on actual duty of No. 1 Sentry. Before the Court Martial several witnesses were examined which has also been mentioned in para 7 of the writ petition. 5. In para 23 of the counter affidavit it has been stated that before the summary Court martial guard duty roster was produced. Relevant portion of para 23 of the counter affidavit is quoted below: "during the course of this duty each NCO and OR, who forms the part of Guard, remains in quarter guard premises only. Arrangement are made in side quarter guard only for stay/including rest of these persons, including provisions toilet facilities. Even meals and breakfast and tea is also served from cook house in quarter guard for which separate individual detailed. For this duration of 24 hours sentries on post are detailed for a duration of 2 hours in relation and a roster is made timewise so that sentry can be re placed for rest. But no one from quarter guard during the course of quarter guard duty is permitted to leave the quarter guard without permission of his superior officer. It is strictly adhered by all "units as units complete arms ammunition and regiment treasury chest is part of quarter guard. " 6. It has further been stated that during time of enemy action or sensing something wrong an alarm is sounded for alerting the guard and complete guard including the Guard Commander comes to stand to at respective assigned places. It has further been stated that such tattoo sounding is also done for sur prise checking and for keeping the guards alert and for judging their alertness. It has also been mentioned that at the relevant time when stand to alarm was given/called the petitioner and one S. K. Rai were found absent. It has further been stated in the same para that actual Sentry duty of the petitioner was from 10. 30 p. m. of 7. 5. 1986 to 00. 30 of 8. 5. 1986 and from 4. 30 a. m. to 06. 30 a. m. of 8. 5. 2006. It has further been stated in the same para that actual Sentry duty of the petitioner was from 10. 30 p. m. of 7. 5. 1986 to 00. 30 of 8. 5. 1986 and from 4. 30 a. m. to 06. 30 a. m. of 8. 5. 2006. However, even though at the relevant time (3. 10 a. m. to 4. 10 a. m.) pe titioner was not on actual sentry duty still he was required to remain present in the quarter guard during roster period (00. 30 to 4. 30 on 8. 5. 1986 ). 7. In my opinion the reasons disclosed in the counter affidavit are quite sufficient for dismissal and award of six months R. I. in Civil prison. Military force is highly disciplined force. Guard duty and that also of the arms and ammunition is one of the most important functions of the Army. Absolutely, no laxity during performance of such duty can be tolerated or condoned. 8. Accordingly, there is no merit in the writ petition hence it is dismissed. Petition Dismissed. .