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2014 DIGILAW 207 (JK)

Kalam Din v. Union Of India

2014-05-12

Hasnain Massodi

body2014
1. Petitioner was enrolled in J&K Light Infantry in 1996. He applied for seven days casual leave prefixed by holidays on 08th and 9th January, 2001. Leave applied for was sanctioned in his favour on 07.01.2000 and he proceeded on leave on the same day in afternoon. According to the petitioner, he on 08.01.2000 proceeded to his home town, Rajouri to see his ailing mother admitted in Primary Health Centre, Kandi, Kotranka on 06.01.2000. However, on reaching the hospital he was told that his Mother had breathed her last at 11.30 PM. He participated in her last rites on 10.01.2000, whereafter he was taken ill and admitted in local hospital on 12.01.2000. 2. Petitioner states to have developed depression and to have remained under constant medical treatment till 05.05.2000. Once he was found by the Doctor to be fit to resume his duty, he reported at JAKLI (RC) Srinagar on 07.05.2000 A.N. He on his reporting to his regiment alleges to have been put under detention and produced before Summary Court Martial (SMC) presided over by Commandant JAKLI (RC). The Court Martial proceedings led to his dismissal from service. 3. He preferred an appeal/petition against the punishment awarded. It did not meet any success and was rejected on 04.06.2001. 4. Petitioner questions the Summary Court Martial proceedings and the punishment imposed as also the order dated 04.06.2001 whereby proceedings and punishment imposed were upheld and his petition rejected, on the grounds that the proceedings were not conducted in accordance with Rules; that he was not afforded opportunity to defend him, contemplated under Rules; that the charges levelled him are factually incorrect and without substance. 5. Respondents oppose the writ petition on the ground that the procedure laid down under rules was strictly adhered to and the petitioner not only given an opportunity to participate in the proceedings but also allowed to cross examine the witness and put forth his defence. The petitioner in token of his participation in the proceedings is said to have put his signatures on the papers connected into the proceedings. The SCM proceedings are said to have been gone through by the Judge, Advocate General of Headquarter 15 Corps and counter signed by Chief of Staff, HQ 15 Corps. The petitioner in token of his participation in the proceedings is said to have put his signatures on the papers connected into the proceedings. The SCM proceedings are said to have been gone through by the Judge, Advocate General of Headquarter 15 Corps and counter signed by Chief of Staff, HQ 15 Corps. It is insisted that the petitioner in its capacity as Clerk being well versed with the rules, ought to have availed the opportunity given to him to produce his defence in opposition to the allegations leveled and the evidence recorded during CoE and SCM proceedings. 6. Petitioner in his rejoinder filed on 16.01.2009 has reiterated stand taken in his reply to the writ petition. He denies that he was associated with the SCM proceedings and has disputed his signatures on the documents connected with the proceedings. Petitioner denies that he had give to see his sister at Batmaloo, Srinagar or that he was not prevented by his mother's untimely death and thereafter his prolonged ailment from reporting to his unit. 7. I have gone through the pleadings as also record made available by learned counsel for the respondents. I have heard learned counsel for the parties. 8. Petitioner as evident from a resume of the pleadings reproduced above, assails the SCM proceedings and the punishment imposed on the ground that the proceedings have been conducted otherwise than in accordance with law and that he has not been given sufficient opportunity to discredit testimony of witnesses examined as also to put forth his defence. 9. The record made available by learned counsel for respondents would reveal that proceedings against the petitioner have been conducted in accordance with Rules. The charge leveled against the petitioner was that he overstayed leave without sufficient cause. It was alleged that the petitioner after availing the casual leave granted in his favour, failed to report to his battalion at RC (Regimental Centre) on 10.01.2000 and instead reported at RC after unauthorized absence spreading over 122 days and that too without any sufficient cause, justifying his unauthorized absence. 10. The respondents while proceeding against the petitioner associated him with the proceedings and complied with mandate of Rule 22 (I) Army Rules as also Section 39 (b) Indian Army Act. 10. The respondents while proceeding against the petitioner associated him with the proceedings and complied with mandate of Rule 22 (I) Army Rules as also Section 39 (b) Indian Army Act. The fact that petitioner was associated with the enquiry at every stage is borne out from the signatures affixed by the petitioner on all essential documents connected with the proceedings. To illustrate, petitioner put his signatures on the document dated 12.05.2000 as token of acknowledgement that charges against him were read over and explained to him and that statutory requirements in terms of AR 22 (I) were dispensed with, as AR 180 stood complied with at the CoE level. The petitioner is recorded to have declined to cross examine witnesses. 11. Petitioner pleaded guilty to the charge. Before recording the plea, the SCM explained to the petitioner meaning of the charge to which he pleaded guilty to ascertain that the petitioner understands the nature of charge to which he pleaded guilty. SCM also informed the petitioner the general effect of the plea and the difference in the procedure to be followed consequent upon such plea. SCM adhered to the provisions of AR 115(II), before acting on the plea. The certificate appended to the proceedings in this regard bears petitioner's signature, reinforcing the respondents' claim that the petitioner was associated with the SCM proceedings and that the plea was voluntary and free from any element of coercion, misrepresentation or deceit. 12. Petitioner as the record would reveal, was afforded an opportunity to make any statement in reference to the charge or in mitigation of punishment. He did not make any statement in his defence except that he was not interested to continue in service because of some domestic problems at his home. Petitioner again put his signature while responding to the question asked in this behalf. The record would further reveal that the petitioner was given opportunity to cross examine the witnesses; that he declined to avail the opportunity and put his signature at the foot of the statements recorded to affirm that such an opportunity was given to him. It is only after the verdict of SCM was pronounced and punishment/sentence "dismissed from service awarded". That the petitioner came up with the plea that procedure prescribed under law was not followed. 13. It is only after the verdict of SCM was pronounced and punishment/sentence "dismissed from service awarded". That the petitioner came up with the plea that procedure prescribed under law was not followed. 13. The grounds set up in the petition as regards the petitioner's indisposition and medical treatment, are clearly an afterthought and in any case not to be looked into by this Court while exercising writ jurisdiction. 14. For the reasons discussed, the grounds taken in the petition to question SCM proceedings and the sentence /punishment imposed are bereft of any merit. Petition against the SCM proceedings and the sentence/punishment imposed in terms of Section 164 (I) Army Act, 1950 was rightly rejected vide order dated 04.06.2001 as SCM record did not indicate violation of any of the Rules or the statutory safeguards available to the Petitioner. 15. It is well settled law that this Court while exercising writ jurisdiction or embarking on "judicial review", of the proceedings before a tribunal and the order recorded is not act as an Appellate Court and re-appreciate the evidence. Reappraisal of evidence recorded or relied upon by SCM is not part of the writ jurisdiction under Article 226 of the Constitution. This Court is not to interfere with the quantum of sentence unless or until it is so disproportionate that it shocks the conscience. Dismissal from service has been held to be punishment not warranting interference in case of unauthorized absence from duty by an Armed Forces Personnel. Reference in this regard may be made to State of U.P. and ors. v. Ashok Kumar Singh and anr. AIR 1996 SC 736 , The State of Punjab & ors. v. Bakhshish Singh, 1997 (4) SLR 590, Union of India and ors. v. Bipan Lal & anr. 2006 (2) JKJ 618 [HC], and Union of India & ors. v. Dinesh Prasad 2013 (2) JKJ 80 [SC]. 16. It would be also advantageous to seek guidance from the following observations of Hon'ble the Supreme Court in Rameshwar Prasad and others (VI) v. Union of India and others in (2006) 2 SCC 1 : "242. The Wednesbury principle is often misunderstood to mean that any administrative decision which is regarded by the Court to be unreasonable must be struck down. The Wednesbury principle is often misunderstood to mean that any administrative decision which is regarded by the Court to be unreasonable must be struck down. The correct understanding of the Wednesbury principle is that a decision will be said to be unreasonable in the Wednesbury sense if (i) is based on wholly irrelevant material or wholly irrelevant consideration, (ii) it has ignored a very relevant material which it should have taken into consideration, or (iii) it is so absurd that no sensible person could ever have reached it. 243. As observed by Lord Diplock in CCSU case a decision will be said to suffer from Wednesbury unreasonableness if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." and Om Parkash v. Union of India (2001) 2 SCC 386 : "By `proportionality', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of person keeping in mind the purpose which they were intended to serve". The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by Proportionality". 17. In the circumstances, I don't find any merit in the petition. The writ petition is accordingly, dismissed. 18. Record be returned.