Delhi High Court
Harnarayan Singh vs Union Of India & Ors. on 17 February, 1999
Equivalent citations: 1999IIAD(DELHI)122, 78(1999)DLT226, [1999(82)FLR243], (1999)IILLJ679DEL
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
ORDER K. Ramamoorthy, J.
1. The petitioner has challenged the order of dismissal by the court martial. The petitioner was enrolled in the Indian Army as Sepoy and he was working as domestic orderly. Action was taken against him on the ground that he committed theft of steel almirah. In the chargesheet it is not stated from where the petitioner committed the theft of steel almirah. What is stated is 'committing theft of property belonging to the Government'.
2. The main point urged by the learned counsel for the petitioner Mr. Bishram Singh was that Rule 22 of the Army Rules, 1954 had not been followed and that is a mandatory provision as laid down by the Supreme Court in Lt. Col. Prithi Pal Singh Bedi vs Union of India and others, . That position is not disputed by the respondents but what is asserted is that Rule 22 was followed.
3. There is nothing on record to show that Rule 22 was followed by the respondents in this case. What was relied on by the respondents was the statement alleged to have been given by the petitioner at the time of hearing of the charge under Rule 22. The learned counsel Mr. Bishram Singh submitted that no such statement was given to the petitioner and no statement was recorded. The respondents have not been able to show that a copy of the statement was given to the petitioner. I asked the learned counsel for the respondents when the petitioner is alleged to have committed the theft of steel almirah where was the steel almirah was kept, who had a custody of the steel almirah at the time of the alleged theft. I also asked him what is the name of the place where the steel almirah was kept at the time of the offence. I also asked him who were all the persons incharge of the place at the time when the alleged offence was committed, what was the time when the offence was committed, whether it was night or day time. The learned counsel for the respondents could not answer these questions and there is absolutely nothing on record to show these facts. There has been total non application of mind by the respondents. The steel almirah cannot be removed by a single individual just like that. Specially, when the steel almirah was in the custody of the army personnel, person like the petitioner who was only a domestic orderly cannot touch the steel almirah. It is inherently impossible to allege that the petitioner had stolen the steel almirah. The respondents have made up the whole affair by recording summary of evidence and convening court martial.
4. The learned counsel for the petitioner Mr. Bishrma Singh submitted that the petitioner removed the steel almirah with great difficulty at the instance of his superior authority and it was placed at the place of the superior authority. This explanation is quite acceptable having regard to the facts and circumstances. The learned counsel for the respondents submitted that the petitioner had admitted the guilt but the record of the proceedings would not conclusively show that there was any admission on the part of the petitioner.
5. There is absolutely no evidence on record and the theory propounded by the respondents is wholly imaginary. I do not find any hesitation to hold that whole thing is perverse and the order of dismissal cannot at all be sustained.
6. Accordingly, the writ petition stands allowed. The petitioner shall be reinstated in service with all back wages and consequential benefits. There shall be no order as to costs.