Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 798 (GAU)

Mohan Arya v. Government of India

2015-06-23

B.K.SHARMA

body2015
JUDGEMENT 1. This writ petition was filed way back in 2004 making a grievance against dismissal of the petitioner from service pursuant to a Summary Court Martial. The writ petition was dismissed for default on 06/06/2006. However, later on it was restored. Thereafter the writ petition was again disposed of on merit by order dated 16/05/2007. Such dismissal was on account of failure on the part of the petitioner to challenge the subsequent order of compulsory retirement dated 16/04/2004. Although, the writ petition was filed on 20/07/2004 but the petitioner did not challenge the order of compulsory retirement dated 16/04/2004. The order of dismissal having merged with that of order of compulsory retirement and in absence of any challenge to the same, the writ petition was dismissed. However, on perusal of materials on record, it appears that the writ petition was again restored to file vide order dated 18/09/2014 passed in MC No. 2718/2014 for the reasons stated in the said order. 2. It appears that the petitioner filed an amended writ petition incorporating the order of compulsory retirement. As stated in the writ petition, the petitioner was tried under Summary Court Martial for the offence under Section 56(a) of the Army Act. Section 56 reads as follows :- “56. False accusations. Any person subject to this Act who commits any of the following offences, that is to say,- (a) makes a false accusation against any person subject to this Act, knowing or having reason to believe such accusation to be false; or (b) in making a complaint under section 26 or section 27 makes any statement affecting the character of any person subject to this Act, knowing or having reason to believe such statement to be false or knowingly and wilfully suppresses any material facts; shall, on conviction by court-martial be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.” 3. Pursuant to the SCM, the petitioner was dismissed from service which was later on converted to that of compulsory retirement. According to the petitioner, his superior officer one Major Parminder Singh had allowed him to go on leave on 21/04/2001. The petitioner submitted further application seeking extension of leave which was declined. According to the petitioner, such extension of leave having not been granted, he had to rejoin duty. According to the petitioner, his superior officer one Major Parminder Singh had allowed him to go on leave on 21/04/2001. The petitioner submitted further application seeking extension of leave which was declined. According to the petitioner, such extension of leave having not been granted, he had to rejoin duty. Further statement made in the writ petition is that he was hospitalized for the period from 21/04/2001 to 26/04/2001. According to him, aforesaid Major Parminder Singh, Coy Cdr. i.e. the respondent No. 4 got annoyed because of over-staying leave beyond 21/04/2001 and also for putting up leave application in the office. The petitioner has alleged assault on him by said Major Parminder Singh because of which he had to be hospitalized. The petitioner has also alleged ill treatment to his wife and child by said Major Parminder Singh. 4. The petitioner was served with the charge sheet dated 23/07/2002, which is reproduced below :- “TENTATIVE CHARGES The accused No. 2701512X Rfn/GD Mohan Arya of 27 Assam, Rifles a person subject to the Army Act as a sepoy under Sec 4(1) read with SRO 117 of 28 Mar 60 and SRO No. 318 of 26 Dec 62 is amended by SRO No. 325 of 31 Aug 77 is charged with :- 1. ARMY ACT SEC 56(a) MAKING FALSE ACCUSATION AGAINST A PERSON SUBJECT TO THE ARMY ACT KNOWING SUCH ACCUSATION TO BE FALSE In that he, at field in May 2002, in an application addressed to DGAR has stated that he was beaten by IC-50769N Maj. Parminder Singh, JC-2700201X Nb/Sub (GD) Nandan Singh, No. 2700437X Hav/GD Jibon Gogoi and No. 2701192N Hav/GD K.C. Patni on 23 April 2001, well knowing that the said statement to be false. 2. ARMY ACT SEC-56(A) MAKING FALSE ACCUSATION AGAINST A PERSON SUBJECT TO THE ARMY ACT KNOWING SUCH ACCUSATION TO BE FALSE In that he, at field in May 2002, in an application addressed to DGAR has stated that IC-50769N Maj Parminder Singh JC-2700201X Nb/Sub (GD) Nandan Singh, No. 2700437X Hav/GD Jibon Gogoi and No. 2701192N Hav/GD K.C. Patni broke the hand of his child, well knowing that the said statement to be false. 3. 3. ARMY ACT SECTION-56(a) MAKING FALSE ACCUSATION AGAINST A PERSON SUBJECT TO THE ARMY ACT KNOWING SUCH ACCUSATION TO BE FALSE In that he, at field in May 2002 in an application addressed to DGAR has stated that IC-50769N Maj Parminder Singh JC-2700201X Nb/Sub (GD) Nandan Singh, No. 2700437X Hav/GD Jibon Gogoi and No. 2701192N Hav/GD K.C. Patni have threatened and troubled his wife Mrs Khila Arya, well knowing that the said statement to be false. 4. ARMY ACT SECTION-56(a) MAKING FALSE ACCUSATION AGAINST A PERSON SUBJECT TO THE ARMY ACT KNOWING SUCH ACCUSATION TO BE FALSE In that he, at field in May 2002 in an application addressed to DGAR has stated that 27 Assam Rifles personnel have not allowed him to take proper medical treatment, well knowing that the said statement to be false. 5. ARMY ACT SECTION-56(a) MAKING FALSE ACCUSATION AGAINST A PERSON SUBJECT TO THE ARMY ACT KNOWING SUCH ACCUSATION TO BE FALSE In that he, at field in May 2002 in an application addressed to DGAR has stated that Comdt 27 Assam Rifles favoured IC-50769N Maj Parminder Singh being from same community well knowing that the said statement to be false. 6. ARMY ACT SECTION-57(a) IN A CERTIFICATE SIGNED BY HIM KNOWINGLY MAKING A FALSE STATEMENT In that he, at field in May 2002 in an application signed by him, stated that he belongs to Scheduled Caste Category, well knowing the said statement to be false. 7. ARMY ACT SECTION-36(d) LEAVING HIS POST WITHOUT ORDERS FROM HIS SUPERIOR OFFICER In that he, at field (Piphima Post) between 0700 hrs and 0800 hrs on 24 April 2001 while on active service tried to quit his post without orders from his superior officer. 8. ARMY ACT SECTION-63 AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE In that he, at field IN May 2002, forwarded an application directly to HQ, DGAR, Shillong without following the laid down official channel as provided in Para 552 of Defence Services Regulation. 9. ARMY ACT SECTION-63 AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE In that he, at field IN May 2002, forged documents wherein in an application addressed to DGAR, signed on the name of his wife Mrs. Khila Arya. Sd/- (Mandip Grewal) Col. Commandant” Place : Field Dated : 22/23 July 2002 5. 9. ARMY ACT SECTION-63 AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE In that he, at field IN May 2002, forged documents wherein in an application addressed to DGAR, signed on the name of his wife Mrs. Khila Arya. Sd/- (Mandip Grewal) Col. Commandant” Place : Field Dated : 22/23 July 2002 5. In the writ petition, the petitioner has enclosed the copy of the representation (undated) allegedly submitted by his wife before the Director General, Assam Rifles on the subject of manhandling and injuring the petitioner by the senior officer of the Coy. There is nothing to indicate that the petitioner had responded to the charge sheet dated 23/07/2002. There is no averment to that effect in the writ petition. According to him, the offence alleged against him was the product of manipulation and as such the charges levelled against him are all irrational and perverse. 6. As it appears, pursuant to the SCM, the petitioner was initially imposed with the penalty of dismissal from service, which was later on modified to that of compulsory retirement. In the counter affidavit filed by the respondents, the allegation made by the petitioner has all been denied. It has been stated that the Unit of the petitioner i.e. the 5 Assam Rifles at the relevant time was operationally deployed under Army and as such was subjected to Army Act in terms of SRO 318 dated 06/12/1962, as amended by SRO 325 dated 31/08/1977. The petitioner was tried under Army Act by Summary Court Martial on 09/07/2003 by the Commandant, 5 Assam Rifles for charge under Section 56(a) of the Army Act. According to the respondents, the petitioner pleaded guilty to the charge and the Court also found him guilty and accordingly sentenced him to be dismissed from service. The petitioner was apprised of his right in terms of Section 164 of the Army Act. 7. Denying the allegation of atrocities allegedly perpetrated on the petitioner and the family, the respondents in their counter affidavit have stated that Major Parminder Singh was 2nd in Command of the petitioner’s Unit and he never rebuked/humiliated or assaulted the petitioner. In this connection, the respondents have referred to the SCM proceedings and the statement of the witnesses. 7. Denying the allegation of atrocities allegedly perpetrated on the petitioner and the family, the respondents in their counter affidavit have stated that Major Parminder Singh was 2nd in Command of the petitioner’s Unit and he never rebuked/humiliated or assaulted the petitioner. In this connection, the respondents have referred to the SCM proceedings and the statement of the witnesses. According to the respondents, the petitioner made false and baseless allegations and accordingly he had committed an offence under Section 56 of the Army Act and charge sheet was issued to him for SCM proceedings. 8. As regards the alleged hospitalization of the petitioner because of the atrocities perpetrated by Major Parminder Singh, the respondents have referred to the evidence on record showing that the petitioner was admitted in the Unit hospital with complaint of pain and giddiness. He was also admitted earlier in the Unit Hospital from 22/12/2000 to 30/12/2000 for Chronic Ear Problem. He was treated symptomatically and no extra injuries could be detected at the time of examination. In paragraph 12, 15 and 16 of the counter affidavit, the respondents have stated thus :- “12. That in reply to the averments made in paragraph 10 of the writ petition, it is respectfully submitted that a staff inquiry was held to investigate into the allegations levelled by the petitioner. The inquiry confirmed that the allegations were false. It is further submitted that in term with the Army Act Section 122, period of limitation for a trial is three years. Hence his trial is legal and tenable in law. It is further submitted that the offence pertains to may 2002 and the petitioner was served with the charge sheet and other documents connected with the trial on 19.4.2003. Moreover, the records of SCM proceedings would reveal that his trial of the petitioner concluded on 9.7.2003 and the letter being referred to by the petitioner (Appendix–A of the writ petition) has also been issued on 9.7.2003. The same was issued to appraise the petitioner of his right of filing a petition against the SCM award in terms with Army Act Section 164, if he considered himself aggrieved by the sentence of the SCM. It is further submitted that on conclusion of the impugned Summary Court Martial, the sentence was duly promulgated in terms of Regulation for the Army, 1987 Para 473 read with Army Rule 131. 15. It is further submitted that on conclusion of the impugned Summary Court Martial, the sentence was duly promulgated in terms of Regulation for the Army, 1987 Para 473 read with Army Rule 131. 15. That in reply to the averments made in paragraph 13 of the writ petition, it is respectfully submitted that the petitioner’s conduct has been consistently defiant and insubordinate, he has refused to receive the copies of court of inquiry as well as Summary of Evidence. In this regard answer to Q-29 given by the accused is quoted below [Page E-2 of the annexure-2 refers]: “I am a soldier and whenever I am called I will come. Why must I take the charge sheet and summary of evidence. When the witnesses are not signing why must I sign.” It is further submitted that the petitioner has participated throughout the Summary Court Martial proceedings, cross-examined prosecution witnesses, made a statement and also examined witnesses in defence. 16. That the averments made in paragraphs 14 and 15 of the writ petition are false, misleading, malafide and hereby denied. It is submitted that the petition of the petitioner was duly considered by the DGAR and after due application of mind, the Director General, Assam Rifles, vide order dated I.12015/181/2001/DV-3/ dated 16 Apr 2004 ordered the following. “Rifleman/GD Mohan Arya was tried by Summary Court Martial under Army Act section 56(a) for Making False Accusation against a person subject to the Army Act knowing such accusation to be false. He was found “guilty” by the Summary court martial and was sentenced “to be dismissed from service” by the Court. During the trial, the petitioner was afforded full opportunity to defend himself. The punishment awarded to the petitioner is though legal but harsh. Therefore, considering the nature of offence, 10 years unblemished record of service of the individual and on humanitarian grounds, I direct the dismissal from the service in respect of petitioner be commuted to compulsory retirement from the service. ” 9. I have heard Mr. G.D. Joshi, learned counsel for the petitioner and have also heard Mr. G. Pegu, learned CGC. I have also considered the entire materials on record. Mr. Joshi, learned counsel for the petitioner submitted that the petitioner being an Assam Rifle personnel, could not have been tried under the Army Act. On the other hand, Mr. I have heard Mr. G.D. Joshi, learned counsel for the petitioner and have also heard Mr. G. Pegu, learned CGC. I have also considered the entire materials on record. Mr. Joshi, learned counsel for the petitioner submitted that the petitioner being an Assam Rifle personnel, could not have been tried under the Army Act. On the other hand, Mr. Pegu, learned CGC referring to the stand of the respondents in their counter affidavit, submitted that since the petitioner was deployed under Army along with his Unit, he was subject to Army Act in terms of the provisions referred to in the counter affidavit. 10. As stated in the counter affidavit, the petitioner’s Unit was operationally deployed under Army Act and as such he was subjected to Army Act in terms of SRO 318 dated 06/12/1962 as amended by SRO 325 dated 31/08/1977. Accordingly, he was tried under Army Act by SCM. He also pleaded guilty to the charge. This specific plea of the respondents in their counter affidavit filed on 23/08/2005 has not been denied by the petitioner. Even in the amended writ petition, such plea of the respondents has not been dealt with. The offence alleged against the petitioner pertains to May, 2002 and the petitioner was served with the charge sheet and other documents. The records of the SCM proceedings would reveal that his trial was concluded on 09/07/2003 and he was apprised of his right of filing petition against the SCM award in terms of Section 164 of the Army Act. On conclusion of the SCM, the sentence was duly promulgated in terms of Regulation for the Army, 1987 read with Army Rule 131. In paragraph 15 quoted above, it is the specific plea of the respondents that the petitioner’s conduct had been consistently defiant. He even refused to receive the copy of the Court of enquiry as well as summary of evidence. As quoted above, reply to the question No. 29, the petitioner stated thus :- “I am a soldier and whenever I am called I will come. Why must I take the charge sheet and summary of evidence. When the witnesses are not signing why must I sign.” 11. Irrespective of the aforesaid stand of the petitioner, he participated throughout the SCM proceedings; cross examined the prosecution witnesses; made a statement and also examined defence witnesses. Why must I take the charge sheet and summary of evidence. When the witnesses are not signing why must I sign.” 11. Irrespective of the aforesaid stand of the petitioner, he participated throughout the SCM proceedings; cross examined the prosecution witnesses; made a statement and also examined defence witnesses. The appellate authority duly considered his petition and having regard to the fact that he had 10 (ten) years of service, converted the penalty of dismissal from service to that of compulsory retirement on humanitarian ground. On perusal of the materials on record, it is found that the petitioner was tried by SCM under Section 56(a) of the Army Act for making falls accusation against a person, subject to Army Act, knowing such accusation to be false. He was found guilty by the SCM and was sentenced to be dismissed from service by the Court. During trial, he was afforded full opportunity to defend himself. 12. The law is well settled that findings arrived at in an enquiry proceeding including SCM cannot be lightly interfered with unless perversity to the finding is alleged and proved. It is not a case of no evidence to sustain the charge against the petitioner. 13. As discussed above, throughout the SCM proceeding, the petitioner was given all reasonable opportunity to defend his case. He admittedly participated in the SCM proceeding without any objection and also examined defence witnesses. It was only thereafter the order of penalty of dismissal from service was imposed on him. However, the appellate authority taking a lenient view of the matter substituted the said penalty with that of compulsory retirement entitling him to service benefits. I see no reason to interfere with the same. 14. For all the aforesaid reasons, there is no merit in the writ petition and accordingly it is dismissed, without, however, any order as to costs.