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ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI
O.A. No. 19 OF 2013
FRIDAY, THE 12TH DAY OF DECEMBER, 2014/21ST AGRAHAYANA, 1936
CORAM:
HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J)
HON'BLE VICE ADMIRAL M.P.MURALIDHARAN,AVSM & BAR, NM, MEMBER (A)
APPLICANT: HAV/CLK SUDHEER EX NO.15361526 N,I.P., AGED 42 YEARS, S/O. SREEDHARAN I.P.EDAYATTU CHALIL HOUSE,KAKKUR P.O., VIA. NANMINDAKOZHIKKODE DISTRICT, KERALA – 673 613.
BY THE PARTY IN PERSON.
versus
RESPONDENTS:
1. UNION OF INDIA, REP. BY ITS SECRETARY MINISTRY OF DEFENCE, SOUTH BLOCK,
NEW DELHI – 110 011.
2. THE CHIEF OF THE ARMY STAFF, COAS'S SECRETARIAT, INTEGRATED HEAD QUARTERS, MINISTRY OF DEFENCE, (ARMY) SOUTH BLOCK, NEW DELHI – 110 011.
3. THE COMMANDANT, THE DOGRA REGIMENT CENTRE FAIZABAD (UP) – 224 001.
4. THE COMMANDING OFFICER, RECORDS THE DOGRA REGIMENT
PIN 900 235, C/O. 56 APO.
BY ADV.SRI.K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL
O.A. No. 19 of 2013 : 2 :
ORDER
VAdm.M.P.Muralidharan, Member (A):
1. This Original Application has been filed by Sudheer,
Ex-Havildar Clerk No. 15361526 essentially against the
punishments awarded to him on 18 July 2008 and 21 June
2011. The applicant has sought reinstatement with all
consequential benefits, including promotion.
2. The applicant was enrolled in the Army on 17
January 1988 as Infantry Soldier (Clerk General duty) in
the Corps of Signals. After basic training, he was posted to
1 Signals Training Centre on 01 June 1989 and was
subsequently transferred to the Dogra Regiment on 16 April
1990. In due course he was promoted to the rank of
Havildar and was posted to the Records, Dogra Regiment on
02 October 2006 and served there upto 31 January 2012.
3. On 07 March 2008 the applicant was sent on
temporary duty to Delhi for collection of medals pertaining
O.A. No. 19 of 2013 : 3 :
to the Dogra Regiment and he returned on 15 March 2008
on completion of the said duty. During the said period, on
12 March 2008, a complaint was received at the Records
from the wife of the applicant that, at about 0400 hours
on 12 March 2008 the applicant was in his home town at
Kunnamangalam, Kerala and had stabbed his father-in-law.
Based on the above, an inquiry was initiated, and
subsequently disciplinary action against the applicant was
initiated and he was awarded 'severe reprimand' (Annexure
A7).
4. About three years later when the applicant was on
annual leave from 25 April 2011 to 21 May 2011, a
complaint was received against the applicant from an Upper
Division Clerk of Records Dogra Regiment, Shri Adarsh
Kumar. Based on the complaint, the applicant was re-called
by telegram from leave to report for duty to carry out
investigations. However, he did not re-join duty till
termination of leave. A Court of Inquiry was subsequently
held, in which the applicant was found guilty of misleading
O.A. No. 19 of 2013 : 4 :
the organisation by giving false facts. He was summarily
tried and was awarded 'severe reprimand' on 21 June 2011
(Annexure A16). This punishment made him ineligible for
extension of service of 2 years which had been granted to
him and the applicant was transferred to Pension
Establishment on 31 Jan 2012 on completion of tenure of
his service under Item III(i) of Rule 13(3) of the Army
Rules after rendering 24 years and 14 days of service.
5. Heard the applicant appeared in person and
Shri. K.M. Jamaludheen for the respondents.
6. The applicant brought out that the applicant's
relationship with his wife had been strained from the year
2006 and she had even filed a petition against him in the
Family Court for maintenance and false criminal cases were
filed against him by his in-laws. He further contended that
his wife was in the habit of making frivolous complaints and
allegations to the Army Authorities, which, in turn, affected
the working conditions of the applicant in the Army. In
O.A. No. 19 of 2013 : 5 :
March 2008, the applicant had been deputed from the
Records Dogra Regiment at Faizabad for collection of
medals at the Ministry of Defence, New Delhi. The
applicant reached Delhi on 08 March 2008, but as it was a
holiday, being a Saturday and next day being Sunday, the
applicant reported to the concerned section on 10th and 11
March 2008, but was told to come on 13 March 2008 for
collection of medals. So he remained in the Unit lines of
Army Headquarters. When he returned to Unit on 15 March
2008 from Delhi his bags and other luggage were checked,
which was when he was informed that they had a message
from his wife about his attempt to stab his father-in-law.
While the applicant explained that he was in Delhi, he was
forced to make some statements and was treated like a
criminal and a Court of Inquiry was initiated. After his
release the applicant put up his grievances to the
Commanding Officer. Since no action was taken he
submitted a further ROG to the Commandant of Dogra
Regiment.
7. The applicant was subsequently charge sheeted
O.A. No. 19 of 2013 : 6 :
under Sections 63 and 39 of the Army Act and tried by the
Commanding Officer. Even though he pleaded not guilty
and produced all material evidence he was awarded 'severe
reprimand' (Annexure A7). The applicant stated that the
trial was prejudiced. A criminal case was filed against the
applicant in his home town to falsely implicate him as an
accused. The applicant brought out that eventually he was
totally acquitted in the criminal case. A copy of the
judgment is placed as Annexure A9.
8. While the applicant had filed a statutory complaint
to the Chief of the Army Staff, it was not accepted by the
Unit authorities and the applicant forwarded the same by
registered post. However, there has been no reply to the
statutory complaint to date.
9. The applicant next contended that he was granted
27 days annual leave from 25 March 2011 to 21 May 2011
and had taken this leave to attend to the court cases
pending against him at his home town, viz. the criminal
O.A. No. 19 of 2013 : 7 :
case and the Family Court case and the Unit authorities
were aware of this. On 08 May 2011 a telegram dated 27
March 2011 was found on the veranda of his mother's
house, indicating that his leave has been cancelled for
conducting an investigation. As per the applicant, though
the telegram had been sent from Faizabad on 27 April
2011, and was received at Calicut on 28 April 2011, it was
delivered only on 08 May 2011 (Annexure A13) due to
lapses on the part of the BSNL. This was mainly due to
incorrect address in the telegram.
10. The applicant replied to his Unit by telegram
stating that since the Court cases against him would come
up for hearing on 10 May 2011 and non-availability of rail
reservation and the distance of his home town from
Faizabad, he be permitted to report to unit after
completion of his planned leave. Since there was no
response from the Unit, he started from his home town on
the earliest availability of reservation and reached Faizabad
on 15 May 2011. On reaching Faizabad, the applicant
O.A. No. 19 of 2013 : 8 :
learnt that the UDC had filed a complaint against him in the
Civil Court and the case was coming up on 16 May 2011.
The complaint was dismissed by the Court as there was no
truth in the case. Accordingly the applicant reported to his
Unit on 22 May 2011 after completing his leave. However,
the Unit authorities initiated action against him and a Court
of Inquiry was convened. The applicant brought out that
without considering any of his contentions, he was tried
and even though he pleaded not guilty, he was awarded
'severe reprimand'.
11. The applicant further contended that the said
punishment tainted his Military service and adversely
affected his further promotion and extension of service.
The applicant also contended that the BSNL authorities
when contacted regarding the telegram had clearly
indicated that the telegram had been delivered late by them
due to incorrect address and lack of suitable telegraph
office near the village of the applicant. (Annexures A17 and
A18).
O.A. No. 19 of 2013 : 9 :
12. It was further brought out that the applicant,
who had been granted two years of extension from 31 Jan
2012 to 31 Jan 2014, was served with a show cause notice
on 25 July 2011 (Annexure A19), wherein only one day was
granted to file reply to the show cause notice, which was
against all norms of natural justice. The applicant submitted
a statutory complaint (Annexure A20) on 17 August 2011
and as there was no response, he submitted a reminder on
02 Jan 2012 since he was due for discharge on 31 Jan
2012. However, the applicant was discharged from service
without considering his statutory complaint, reply to which
he received after six months of his retirement (Annexure
A22 and A23).
13. As per the applicant, he had an unblemished
service till 2008 and the first ever punishment was given to
him on 18 July 2008 and the second punishment was given
on 21 June 2011. Both these in his view were unwarranted.
More so, in the second case where his only mistake was
O.A. No. 19 of 2013 : 10 :
incorrectly stating the distance from his home station to the
duty station. The applicant further contended that the
statutory complaint was not considered based on the
grounds raised by him, but was looked at in a mechanical
manner. He therefore prayed that the punishment awarded
to him be set aside and he be reinstated in service with all
consequential benefits.
14. Mr. K.M. Jamaludheen, learned counsel for the
respondents, brought out that the applicant while on his
temporary duty to Delhi in March 2008 had without
approval, proceeded to his home town and attacked his
father-in-law, the input of which is received from the
applicant's wife. A copy of the First Information Report
lodged by the applicant's father-in-law at Kunnamangalam
Police Station, Kerala had been received by the unit on 14
March 2008 via Fax. Since the applicant was alleged to have
committed a serious offence, that is, attempt to commit
murder of a civilian, the applicant was placed under open
O.A. No. 19 of 2013 : 11 :
arrest from 15th March to 19th March 2008 and close arrest
from 20 March to 15 May 2008.
15. A staff Court of Inquiry and its proceedings were
submitted to Headquarters of MP and C & A Sub Area,
Allahabad on 12 May 2008. The arrest was properly
reported to the competent authority as required by the
Army Act, Sections 102 and 103. The learned counsel
brought out that based on the Court of Inquiry disciplinary
action was initiated against the applicant for being absent
without leave from 10 March 2008 to 13 March 2008 under
Section 39(a) of the Army Act and for an act prejudicial to
good order and military discipline for violating the directions
contained in movement order under Army Act Section 63.
He was awarded 'Severe Reprimand'. The learned counsel
contended that the punishment was not at all linked to or
influenced by the FIR lodged at Kerala on 14 March 2008
and subsequently charge sheeted under Sections 452, 324
O.A. No. 19 of 2013 : 12 :
and 506(ii) of Indian Penal Code in the Court of Judicial
First Class Magistrate, Kunnamangalam, Kozhikode, Kerala.
The learned counsel brought out that in that case, the
applicant was acquitted on 7 December 2011 vide the
court's judgment (Annexure A9) due to hostile prosecution
witnesses and not due to merits of the case.
16. In the second instance, the applicant whilst at his
home town on 27 days' part of annual leave with effect
from 25 April 2011 to 21 May 2011, a complaint against
him was received from Shri Adarsh Kumar, UDC of Records,
the Dogra Regiment stating that his daughter was missing
from the house and the applicant was possibly involved in
the same. Based on the complaint, recall telegram was
sent to the applicant on 27 April 2011 to investigate the
case. However the applicant replied through a telegram
dated 09 May 2011 (Annexure R16) that his criminal case is
under progress and he cannot rejoin the unit before
termination of the leave. Another telegram was sent to the
applicant (Annexure R17) for rejoining duty immediately
O.A. No. 19 of 2013 : 13 :
and to intimate hearing dates promulgated by the Hon'ble
Court. Subsequently a Court of Inquiry was held and the
applicant was blamed for misleading the organisation by
giving false facts in his telegram. As the applicant had
committed an offence under Army Act Section 63, he was
summarily tried and awarded punishment of 'severe
reprimand' on 21 June 2011.
17. The learned counsel further brought out that
the applicant was due for promotion as per seniority in
February 2010 but could not be promoted as he had not
qualified in the Non Commissioned Officer Clerk Course. He
qualified the same in his third and last chance on 15 Jan
2011 and so became eligible for promotion only with effect
from 15 January 2011, which was subject to meeting
Annual Confidential Report and discipline criteria. However
he was found lacking in both these aspects. In the ACRs for
promotion to the rank of Naib Subedar in the last 5 reports
in the rank of Havildar at least three reports should have
been above average and two could be high average.
O.A. No. 19 of 2013 : 14 :
However the applicant had only two 'above average
reports'. Further, in accordance with Army Order 20/1981
an individual should not be involved in disciplinary case in
the Court of Law and since the applicant was involved in a
criminal court case with the First Class Judicial Magistrate
Court, Kozhikode, he was ineligible for further promotion.
18. The learned counsel further brought out that
based on a Screening Board held on 28 February 2010, the
applicant had been granted two year's extension in service
from 17 January 2012 to 16 January 2014. However since
the applicant was subsequently awarded severe reprimand
under Army Act Section 63 on 21 June 2011, he became
ineligible for extension in service. Accordingly his
extension of service was cancelled and discharge order
was issued on completion of terms of engagement for the
rank held by the applicant ie 24 years of service.
19. The learned counsel further pointed out that the
statutory complaint submitted by the applicant for setting
O.A. No. 19 of 2013 : 15 :
aside the punishment awarded to him on 21 June 2011 was
processed in accordance with the rules and forwarded to
the Chief of the Army Staff. But the same was rejected by
the Chief of the Army vide order dated 23 April 2012
(Annexure A23).
20. The learned counsel further brought out that while
the respondents were not aware of the relationship of the
applicant with his wife, the lady had filed a case in the
Family Court at Calicut to grant maintenance allowance to
herself and her children in which she had charged the
applicant for not maintaining his family or providing any
maintenance allowance to them. The petition was allowed
by the Family Court. It was also brought out that the
applicant's petitions for dissolution of marriage and custody
of the first child was rejected by the Family Court. The
learned counsel also brought out that the complaint
regarding the applicant attacking his father-in-law had
been received from his wife and the FIR in the Court in
Kerala had also been filed by the applicant's father-in-law.
O.A. No. 19 of 2013 : 16 :
21. The learned counsel further brought out that
despite all this, the applicant was granted Modified Assured
Career Progression (MACP) with effect from 18 July 2009
and arrears of pay and allowances were credited to his
account. He has also been granted service pension in the
rank of Naib Subedar (MACP) with effect from 01 February
2012 for life. The learned counsel further brought out that
all actions taken against the applicant were fair and justified
and all procedures had been followed. The punishments
awarded to the applicant were in accordance with the laid
down rules and regulations.
22. Heard rival submissions and perused the records.
23. The learned counsel for the respondents had at
the outset, contended that the Tribunal has no jurisdiction
in the matter of summary disposal and trials unless the
punishment of dismissal had been awarded. According to
learned counsel for respondents, the punishment of 'severe
O.A. No. 19 of 2013 : 17 :
reprimand' was a minor punishment so the same could not
be brought within the service matters as defined in Section
3(O) of the Armed Forces Tribunal Act, 2007 and hence the
instant Original Application was not maintainable.
24. The issue is no more res integra as we have
examined the issue in detail in OA.No.215/2013 decided on
21 November 2014 and held that the Armed Forces Tribunal
has jurisdiction to decide an Original Application in which
the punishment of 'severe reprimand' is challenged. The
relevant paragraphs of the order is re-produced below:
“16. In order to consider the aforesaid submission, we have
to examine the relevant provisions of the Act. Section 3(o) of
the Act, which defines 'service matters', is reproduced as
follows:
“3(o) “service matters”, in relation to the persons
subject to the Army Act, 1950 (46 of 1950), the Navy
Act, 1957 (62 of 1957) and the Air Force Act, 1950
(45 of 1950), mean all matters relating to the
conditions of their service and shall include –
(i) remuneration (including allowances), pension and
other retirement benefits;
O.A. No. 19 of 2013 : 18 :
(ii) tenure, including commission, appointment, enrolment,
probation, confirmation, seniority, training, promotion,
reversion, premature retirement, superannuation,
termination of service and penal deductions;
(iii) Summary disposal and trials where the punishment of
dismissal is awarded;
(iv) “any other matter, whatsoever,” but shall not include
matters relating to--
(i)orders issued under section 18 of the Army Act, 1950 (46
of 1950), sub-section (1) of section 15 of the Navy Act,
1957 (62 of 1957) and section 18 of the Air Force Act, 1950
(45 of 1950); and
(ii) transfers and postings including the change of place or
unit on posting whether individually or as a part of unit,
formation or ship in relation to the persons subject to the
Army Act, 1950 (46 of 1950), the Navy Act 1957 (62 of
1957) and Air Force Act 1950 (45 of 1950)
(iii) Leave of any kind;
(iv) Summary Court Martial except where the punishment
is of dismissal or imprisonment for more than three months;”
17. The definition of “service matters” as excerpted
above has virtually three parts. The first part, being the main
definition clause, defines the “service matters” to mean all
matters relating to the conditions of service of the persons
subject to the Army Act, the Navy Act and the Air Force Act. The
O.A. No. 19 of 2013 : 19 :
expression “all matters relating to the conditions of service” is
very comprehensive, which by itself includes every matter
whatsoever relating to the conditions of service unless expressly
excluded. What could not be brought in any way within the
domain of 'the conditions of service' on interpretation, could be
brought within the domain of 'service matters' only by addition
of an 'inclusive clause' to the main definition. It appears that
the Legislature with that intention enacted the second part of the
definition clause in Section 3(o) of the Act in the form of
inclusive clause, which provides for inclusion of the matters
specified in sub clauses (i), (ii), (iii) and (iv) of Section 3(o) also
within the definition of 'service matters'. Obviously the definition
of 'service matters' by addition of the inclusive clause in the
aforesaid manner was an expansion of the definition to include
other matters not technically falling within the category of
conditions of service as defined in the first part of the
definition. Even clause (iv) of Section 3(o), which includes 'any
other matter whatsoever' has made the definition of 'service
matters' more comprehensive. The third part of the definition
being in the form of “exclusion clause” provides for exclusion
of the following matters from the purview of the “service
matters.”
(i)orders issued under section 18 of the Army Act, 1950 (46
of 1950), sub-section (1) of section 15 of the Navy Act,
1957 (62 of 1957) and section 18 of the Air Force Act, 1950
(45 of 1950); and
(ii) transfers and postings including the change of place or
unit on posting whether individually or as a part of unit,
formation or ship in relation to the persons subject to the
O.A. No. 19 of 2013 : 20 :
Army Act, 1950 (46 of 1950), the Navy Act 1957 (62 of
1957) and Air Force Act 1950 (45 of 1950)
(iii) Leave of any kind;
(iv) Summary Court Martial except where the punishment
is of dismissal or imprisonment for more than three months;”
18. What is, therefore, apparent is that the matters
which are not expressly excluded by the aforesaid “exclusion
clause” shall be deemed to have been brought within the
domain of “service matters” as defined in Section 3(o). The
punishment of admonition imposed in any summary trial and
disposal, which has not been expressly excluded from the
definition of ”service matters”, can be brought within the
domain of the definition with the aid of the comprehensive sub-
clause (iv) of section 3(o), which provides for inclusion of any
other matter whatsoever. It is true that summary disposal and
trials, where the punishment of dismissal is awarded, has also
been brought within the meaning of ”service matters”, by virtue
of sub clause (iii) of Section 3(o). But this specific provision
cannot be taken as a ground to hold that other punishments
awarded in any summary disposal and trial have been excluded,
especially when the third part of the definition i.e. the exclusion
clause is silent on this point. In absence of any such express
exclusion clause, there cannot be any presumption of
exclusion, only on the basis of the aforesaid provision of sub-
clause (iii) of Section 3(o). So the punishments, other than
dismissal, awarded in any summary disposal and trial,
apparently fall within the domain of “any other matters
whatsoever” contained in sub-clause (iv) of Section 3(o).
O.A. No. 19 of 2013 : 21 :
19. In the matter of 'severe reprimand', which is almost
equal to the punishment of 'admonition', the Hon'ble High Court
of Judicature at Allahabad, Lucknow Bench, had occasion to
consider the question of jurisdiction of the Armed Forces Tribunal
while deciding Writ Petition No. 8051 of 1989, Major
Kunwar Ambreshwar Singh v. The Union of India, which
was decided on 20th February, 2014. The Division Bench held
that the punishment of 'severe reprimand' falls within the
category of 'service matters' as defined by Section 3(o) of the
Act. This proposition was laid down on the ground that the
aforesaid penalty would fall within the expression “any other
matters whatsoever” occurring in sub clause (iv) of Section (o)
of the Act. It was argued on behalf of the respondents before
the Allahabad High Court that the punishment of 'admonition'
had not been included in any of the categories specified in sub
clauses (i), (ii) and (iii) of Section 3(o) of the Act, so such
punishment would fall within the category of “any other matters
whatsoever” as defined in sub clause (iv) of the said Section
3(o). The Division Bench of Allahabad High Court, while
interpreting the meaning of the expression “any other matters
whatsoever” held that the punishment of 'severe reprimand' also
come within the category of “any other matters whatsoever”.
20. The learned counsel for the respondents referred to
the order dated 1st December, 2010, rendered by the Jaipur
Bench of the Armed Forces Tribunal, in O.A.No. 164 of 2010,
S.S. Rathore v. Union of India & others and contended
that the Jaipur Bench held that summary disposal and trial
matters could fall within the category of service matters if
punishment of dismissal was awarded. In our view, after the
decision of the Division Bench of the Allahabad High Court in
O.A. No. 19 of 2013 : 22 :
the aforesaid matter, the order of the Jaipur Bench is of no help
to the respondents, especially when the Division Bench of the
Allahabad High Court had proceeded to decide the question of
jurisdiction in that matter due to the reason that the Principal
Bench of the Armed Forces Tribunal, New Delhi had passed the
order that the Tribunal had no jurisdiction, which was questioned
before the High Court. The Division Bench quashed the order of
the Tribunal and held as aforesaid. We, therefore, hold that the
Armed Forces Tribunal has jurisdiction to decide the instant
Original Application.”
25. It is not disputed that the applicant had an
uneventful military career despite the fact that he had been
facing problems in his married life from 2006. However
the punishments awarded to him in July 2008 and June
2011 affected his military career and they have been
challenged. Therefore we proceed to examine both these
issues which form the crux of this Original Application.
26. In the incident of July 2008, it is not disputed
that the applicant was deputed on temporary duty to New
Delhi from Faizabad for collection of medals on behalf of
the Regiment on 07 March 2008 and he returned to Unit on
completion of the temporary duty on 15 March 2008. The
O.A. No. 19 of 2013 : 23 :
reported presence of the applicant at the residence of his
father-in-law at Kunnamangalam, Kerala on 12 March
2008 where he was not supposed to be in accordance with
the orders given to him by the Unit is what resulted in his
trial in July 2008.
27. The applicant in the O.A as well as in the course
of arguments had denied his presence in Kerala during the
said period stating that he was at New Delhi and the whole
case was fabricated by his wife and in-laws. It is however
observed from the Court of Inquiry report convened to
investigate the incident that while the applicant had
reached Delhi on 08 March 2008, along with Sepoy Ajay
Dhrangal who was deputed with him, he did not report to
the Unit of the Regiment he was supposed to report to and
there were conflicting statements between the two of their
place of stay. Ext.22 of the COI is a statement of the
applicant, in which he had indicated that he had taken
evening flight to Bangalore on 10 March 2008 and had
O.A. No. 19 of 2013 : 24 :
reached his home town on 11 March 2008 and had taken a
lodge. The statement also indicates that the applicant
returned to Bangalore on the evening of 12 March 2008 and
took a morning flight on 13 March from Bangalore to New
Delhi. It is pertinent that the statement also brings out
that the stabbing case against him was a false case made
by his father-in-law and highlights the marital problems
of the applicant. The findings of the inquiry reveal that this
statement was made to the CRO by the applicant after he
had confessed the same to him. The report also indicates
that the initial statement had been made by the applicant
in the presence of Captain Yuvraj Singh and Sub Maj KS
Dhiman. These facts were testified by Captain Yuvraj Singh
to the COI and the applicant who was given a chance to
cross examine in accordance with Army Rule 180 declined
to do so. It is also noteworthy that during the COI the
applicant made an additional statement. The statement
being relevant is re-produced below:
“ I have sufficient proof of my stay in Delhi. On 15
March evening I gave Lt Col M. Rajendran the
statement that you have read out as it may help
O.A. No. 19 of 2013 : 25 :
me get my divorce from Smt MA Anusree. I have
full faith in myself and my proof of stay in Delhi.
No one can convict me on just my statement that I
gave in the evening of 15 Mar 08 in the office of the
Adm offr in which I accepted that I had gone to
Kerala using a flight to threaten Shri M Appu. My
correct statement is that what I gave the Adm offr
in the morning of 15 March 08”
28. The COI was able to establish that the applicant
had drawn a sum of Rs.20,000/- at Delhi and found that
circumstantial evidence independent of the statement,
pointed to the applicant having gone to Kerala. Claims of
the applicant regarding his presence at the Medal Collection
Centre on 11 March 2008 and duration of stay at Aramgah
at Delhi have been disputed by the units (Annexures R8 and
R10). It is evident that the applicant in view of the
criminal case against him was trying to establish proof that
he stayed in Delhi but had confessed the truth of his having
gone to Kerala to his Commanding Officer. It is pertinent to
note that the criminal case against the applicant was set
aside not on merits but as the prosecution witnesses had
turned hostile (Annexure A9).
O.A. No. 19 of 2013 : 26 :
29. It is observed that the applicant was summarily
tried by the Commanding Officer on two charges, the first
under Army Act Section 39 (a) for absenting himself
without leave and the second under Army Act section 63
for an act prejudicial to good order and military discipline.
While the applicant pleaded not guilty the Commanding
Officer found him guilty of both charges and awarded the
punishment of 'severe reprimand'. The charges were based
on improper absence and in our view COI was able to
establish the same. It is also observed that the COI and
subsequent summary trial was conducted in accordance
with provisions of Army Act and rules and regulations. We
do not find any reason to set aside the punishment
awarded.
30. While the applicant had stated that he had
submitted a statutory appeal against his punishment in
the year 2008 (Annexure A10), the respondents have
denied receiving any such appeal. We do not find any
reason for the respondents to deny the same if they had
O.A. No. 19 of 2013 : 27 :
actually received it or for not considering his statutory
appeal. This is especially so in view of the fact that the
statutory appeal filed by the applicant after the second
incident was examined by the Chief of the Army Staff.
Further, no appeal has been made by the applicant in the
statutory appeal of 2011, for setting aside his punishment
of 2008 or of his earlier statutory appeal not being
responded to. It would have been logical for him to do so
then, if he had actually preferred an appeal, but cannot
raise the same at this stage, in our view. It is apparent
that he is raising the issue now only as the criminal case
against him has been closed, but as observed it was not on
merits of the case.
31. As seen from records, the applicant did not have
any issues in the Unit till he failed to respond to a recall
telegram sent to him in April 2011. A Court of Inquiry
investigated the circumstances under which the applicant
had failed to report for duty despite a recall telegram
being sent to him. The Court in its findings came to the
O.A. No. 19 of 2013 : 28 :
conclusion that the applicant overstayed his leave wilfully.
32. It is observed that the procedures of convening of
the Court of Inquiry and subsequent conduct of summary
trial per se have been in accordance with the provisions of
Army Act, rules and regulations. We would however like
to examine the charge on which the applicant was found
guilty. The applicant was charged under Army Act Section
63 for an act prejudicial to good order and military
discipline and summarily tried. The charge being relevant is
re-produced below:
“ Army Act Section 63 an act prejudicial to good
order and military discipline, in that he, at
Kakkur, native place of the indl. On 09 May 2011,
initiated a telegram to the Commanding Officer,
Records, the Dogra Regiment in response to
latter's telegram dated 27 Apr 2011 giving
incorrect facts such as date of receipt of
telegram as 08 May 2011 instead of 28 Apr
2011, distance from duty station as 4000 Kms
instead of 2890 Kms and asking for further
orders without giving the changed
address/contact number etc. in order to mislead
the organisation.”
O.A. No. 19 of 2013 : 29 :
33. The applicant had been charged with performing
an act prejudicial to good order and military discipline, in
that he gave incorrect facts such as date of receipt of
telegram, the distance of duty station from his home town
and also for not giving changed address/contact number to
mislead the organisation. It is observed that the applicant
based on the tentative charge sheet given to him had
requested that the detail be sought from the telegraph
office as to the exact date of delivery and to whom it had
been handed over. He has further stated that the distance
from his house had been put as approximate and not as
exact.
34. As regards the date of delivery of the telegram,
the applicant has placed at Annexure A18 the response he
received from the BSNL on 08 July 2011 regarding his
telegram. The office of the Divisional Engineer, Telecom,
Calicut has indicated that the telegram was received at the
office on 28 April 2011 and was dispatched on the same
date. It is further stated that since there was no
O.A. No. 19 of 2013 : 30 :
messenger service such telegrams are dispatched by
ordinary post through postal service and since the address
was not clear and only the name of the applicant and
village was there, it was difficult to deliver and hence
delivery of the telegram might have delayed. The
respondents, on the other hand, have submitted that the
clarification from BSNL Department does not indicate the
date of delivery and the address furnished by the applicant
while going on leave had been given in the telegram.
Further they have contended that the letter from BSNL has
been produced by the applicant and not by the
Organisation. The Unit, if they so desired, could have got
details as to the exact delivery of the telegram but there is
nothing on record to show so.
35. In our view, since no specific date of delivery has
been indicated by the Telegraph Department and they have
also indicated that it is sent by ordinary post since there
was no telegraph office nearby, there is nothing on record
to disbelieve the statement of the applicant that he received
O.A. No. 19 of 2013 : 31 :
the telegram only on 08 May, 2011. The benefit of doubt
in this case should go to the applicant. Further, in our view,
a person may not know the exact distance from his home
town to the duty station especially when it is virtually
stretched across the length of the country. Therefore, in
our view, benefit of doubt is due to the applicant even in
this regard. As regards not giving correct address whilst on
leave, it is observed from the leave certificate at Annexure
A12 that only village, post office and telegraph office have
been recorded in the leave address other than the district
and State. There are no details of the house or the street
on which the applicant is staying. Therefore delays in
delivery as also indicated by the BSNL at Annexure A18
was possible. In our view, it was equally incumbent on his
Unit to have more specifics recorded in the leave address
of the applicant prior to his being sent on leave.
36. The Court of Inquiry has established that the
applicant reached Faziabad well before his due date of
reporting and has opined he willfully stayed away from the
O.A. No. 19 of 2013 : 32 :
Unit. The charge against the applicant is however not in
this regard. As brought out, the applicant has been
essentially charged for giving wrong facts regarding date of
receipt of telegram, distance between home and duty
station and giving incorrect contact details. As analysed by
us earlier, in all these issues the charges have not been
proved beyond reasonable doubt and therefore benefit
should go to the applicant. While we certainly do not
appreciate the response/behaviour of the applicant of not
reporting to his Unit despite being at Faizabad and therefore
wilfully staying away, he has not been charged so.
Therefore the punishment of 'severe reprimand' awarded to
the applicant by the Commanding Officer on 21 June 2011
is quashed.
37. As regards the applicant's claim for reinstatement
and promotion, since we do not have all records we would
not like to give our views on the issue and it is upto
respondents to examine the same de novo taking into
consideration that the punishment awarded to the
O.A. No. 19 of 2013 : 33 :
applicant on 21 June 2011 has been set aside.
38. The contention of the applicant that reasonable
time was not given to reply to the show cause notice issued
to him (Annexure A19) has much merit as only 24 hours
were given. Such urgency was unwarranted as the
applicant's existing tenure was completing only on 31
January 2012 and the reason why he became ineligible for
extension was the punishment awarded to him on 21 June
2011. However we would also like to add that the
applicant did not raise this issue in the statutory appeal he
submitted to the Chief of the Army Staff and therefore
agitating the same at this late stage is frivolous, in our
view.
39. In view of the above, the Original Application is
partly allowed and the punishment awarded to the applicant
on 21 June 2011 (Annexure A16) is quashed. The
respondents are directed to reconsider the case of the
applicant for promotion in accordance with rules and
O.A. No. 19 of 2013 : 34 :
regulations without taking into consideration the
punishment of 2011. If meriting selection, the applicant is
to be given notional seniority from the date he would have
been due for promotion and reinstated to serve till
superannuation/tenure permissible as per that rank.
However he will not be entitled for backwages on the
principle of 'no work no pay' as held by the Hon'ble Apex
Court in Union of India vs. B.M.Jha, (2007) 11 SCC
632. The pension and other retiral benefits of the applicant
be revised accordingly. The respondents are further directed
to carry out the exercise and issue suitable speaking order
to the applicant within a period of four months from the
date of receipt of a copy of this order.
40. There will be no order as to costs.
41. Issue free copy of this order to both sides.
Sd/- Sd/-
VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J) (pto)
O.A. No. 19 of 2013 : 35 :
42. Mr.K.M.Jamaludheen appearing for the
respondents prays for leave to appeal to the Supreme
Court. We have already granted a leave in another matter
with regard to the jurisdiction of the Tribunal, therefore, we
do not consider it proper to frame the same issue and
grant leave.
43. No other point of law of general public
importance is involved in the matter, therefore leave prayed
for is refused.
Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI,
MEMBER (A) MEMBER (J)an.
(true copy)
Prl.Pvt.Secretary