Jammu & Kashmir High Court
Sub Subash Chander No. Jc 579272 vs Union Of India Through Secretary To on 14 March, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
...
SWP No. 867/2007
Reserved on: 07.03.2024
Pronounced on: 14.03.2024
Sub Subash Chander No. JC 579272
S/o Shri Devi Ditta R/O Village Chani
Kartholi Tehsil Samba District Jammu,
Aged 47 years. ......Petitioner(s)
Through: Mr. Ajay Abrol, Advocate with
Ms. Manik Bhardwaj and Damini
Chauhan, Advocates.
Vs.
1. Union of India through Secretary to
Govt. Ministry of Defence, New Delhi.
2. The Chief of Army Staff, New Delhi.
3. Commanding Officer, 10 JAK RIF C/O 56 APO.
4. Commandant, 28 Inf. Division C/O 56 APO.
.....Respondent(s)
Through: Mr. Vishal Sharma, DSGI.
CORAM: HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
JUDGEMENT
1. The petitioner is aggrieved of and has called in question order dated 9th September, 2004 passed by the respondents under Section 63 of the Army Act, 1950 [„ the Act‟], whereby the petitioner has been awarded punishment of „severe reprimand‟. The petitioner also seeks a direction to the respondents to refund a sum of Rs. 12000/- forcibly recovered by the respondents. 2 SWP No. 867/2007
2. Briefly stated, the facts leading to filing of this petition are that, the petitioner who was enrolled as Sepoy in Indian Army on 31-03-1979, rose to the position of Subedar in the year 2003. As per the claim made by the petitioner, he earned all the promotions right from L/Nk to Subedar on the basis of his merit. The petitioner had a clean record of service throughout till one Captain P. K. Verma took over as Company Commander of the Company in which the petitioner was serving. It is alleged that Company Commander Capt. Verma indulged in various irregularities and illegalities in the Company which were objected by the petitioner being a senior most JCO in the Company. The raising of voice by the petitioner against Captain Verma ultimately became the basis for holding proceedings against the petitioner, leading to imposition of punishment of „severe reprimand‟ on the petitioner.
3. It is contended by the petitioner that on 14-08-2004, Sepoy Riaz Wahi, who was on sentry duty in a guard post, was found absent for some time. He, however, came back and rejoined his duty after some time. There was some exchange of hot words between the Guard Commander and sentry. The Sentry went to the Company Commander and lodged a complaint against the Guard Commander for having used abusive language against him. The petitioner was summoned by the Company Commander and was asked to put the Sentry on charge sheet. On 15-08-2004, when the petitioner requested the Company Commander to give him permission to resolve the issue amicably, the petitioner was abused by the Company Commander. The petitioner was also put in prison along with the Sentry on 17-08-2004. It is alleged that petitioner was called by Dr. D. K. Nanda, Commanding Officer, 160 Bn, 16 Inf. Bn. Territorial Army (JAKRIF) in his office and was told that there were some complaints against him for misappropriation of Ration. The petitioner claims that he tried his best to 3 SWP No. 867/2007 clear his position that he was innocent but nobody listened to him and instead he was forced to pay Rs. 12000/- on account of loss of some Ration.
4. The petitioner was formally put on charge under Section 63 of the Act and on the same day awarded „severe reprimand‟ by the Commanding Officer Dr. D. K. Nanda. The petitioner also alleges that he was made to sign some papers under pressure and undue influence. He made non-statutory and statutory petitions/representations but with no result. It is this order of the Commanding officer dated 09-09-2004 which is called in question in this petition.
5. The impugned order is assailed primarily on the ground that the punishment of „severe reprimand‟ was inflicted upon the petitioner on the basis of some ex-parte reports and without holding any enquiry in accordance with the procedure prescribed by the Act and the Rules framed there under.
6. Respondents have contested the petition and have also filed reply affidavit duly sworn in by one Major T. S. Bajwa, Major/Adjutant, 160 Infantary Battalion (TA). It is submitted by the respondents that, while the petitioner was posted in C-Coy as senior most JCO and was officiating as Company Commander, it came to the notice of the Commanding Officer that some misappropriation of Ration had taken place. Captain P. K. Verma was sent as Company Commander of C-Coy on 04-08-2004. Captain P. K. Verma carried out the inspection of the Company stores and found deficiency in the company saving rations. The Company Commander immediately brought the deficiency to the notice of the Commanding Officer. The matter was investigated by the Commanding Officer and it was revealed that the petitioner had failed to exercise proper supervision over the CQMH, who was negligent in performing his duties and had failed to properly account for the Ration held under his charge. The petitioner was awarded „severe reprimand‟ in terms of the impugned 4 SWP No. 867/2007 order under Section 85 of the Act for commission of offence under Section 63 of the Act.
7. Feeling aggrieved, the petitioner submitted an application for review of the punishment and the petitioner was interviewed by the Commanding Officer. During his interview, the petitioner requested for interview by the GOC. The matter was taken up with Records, JAK RIF vide letter dated 11-04-2005 for review of the punishment, however, the petitioner opted out of the interview with the GOC. The matter was accordingly referred to the superior authority for reducing the punishment but the same was truned down on the ground that there were no valid reasons for reducing the punishment.
8. The respondents have explained the manner in which the proceedings were conducted against the petitioner and have submitted that relevant provisions of the Act and the Rules framed there under were scrupulously followed. The summary proceedings were initiated and concluded on the same day, having regard to the fact that offence had been committed by the petitioner in field and urgent action was required.
9. Having heard the learned counsel for the parties and perused the record, I am of the view that the proceedings conducted by the respondents, leading to imposition of „severe reprimand‟ on the petitioner, are not only in violation of principles of natural justice but are also seemingly unfair, for the fair trial rights of the petitioner to defend his case are violated in the instant case.
10. The charge against the petitioner, that he had failed to exercise his control over the CQMH Surinder Kumar, who was unable to properly account for the Ration held under his charge, is, as per the respondents, traceable to Section 63 of the Act. Section 63 reads thus:
5SWP No. 867/2007
"63. Violation of good order and discipline.
Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned."
11. From reading of Section 63, it clearly transpires that, any person subject to the Act, who is found guilty of any act or omission, prejudicial to good order and military discipline, even if such act or omission is not specified in the Act, shall, by conviction by the Court Martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in the Act mentioned. Amongst various punishments enumerated in Section 71 of the Act, the punishment of „severe reprimand‟ in case of officers, junior commissioned officers, warrant officers and non-commissioned officers, is enlisted as one of the punishments that can be inflicted on conviction by Courts-martial. However, in terms of Section 85 of the Act, the Commanding Officer or such other Officer as is, with the consent of Central Government, specified by the Chief of the Army Staff, may proceed against a junior commissioned officer, who is charged with an offence under the Act and award either (a) severe reprimand or reprimand; and (b) stoppage of pay and allowances until any proved loss or damage occasioned by the offence, of which he is convicted, is made good, provided that the punishment of severe reprimand or reprimand shall not be awarded if the Commanding Officer or such Officer is below the rank of Colonal.
12. From the record produced by the respondents it transpires that upon receipt of information with regard to the commission of act or omission by the 6 SWP No. 867/2007 petitioner, tentative charge was prepared and read out to the petitioner in the orderly room in presence of two independent witnesses and the petitioner was heard on the charge in terms of Rule 22 of the Army Rules, 1954 [„ the Rules‟]. The petitioner was given liberty to cross examine the two witnesses recorded in support of the charge, namely, Rashpal Chand and Hari Krishan Gurung, but the petitioner declined to cross examine the witnesses. On conclusion of hearing of the charge in terms of sub-Rule (1) of Rule 22 of the Rules and the charge having been prima facie established, the Commanding Officer proceeded under sub-Rule (3) and recorded his opinion that, „summary of evidence‟ will be recorded. This happened on 9th September, 2004. Obviously, as is provided under Clause (c) of sub-rule (3) of Rule 22 of the Rules, the case was not adjourned but the Commanding Officer proceeded to record the summary of evidence under Rule 23 of the Rules on the same day. The Commanding Officer recorded the summary of evidence in terms of Rule 23 and decided to proceed under Rule 24. Upon consideration of the summary of evidence recorded under Rule 23, the Commanding Officer remanded the petitioner for disposal of the charge against him under Section 85 of the Act. Before we proceed further, it is deemed appropriate to set out Section 85 herein below:-
85. 85. Punishment of junior commissioned officers.
A commanding officer or such other officer as is, with the consent of the Central Government, specified by 2[the Chief of the Army Staff] may, in the prescribed manner, proceed against a junior commissioned officer who is charged with an offence under this Act 2[and award one or more of the following punishments, that is to say,--
(i) Severe reprimand or reprimand;
(ii) Stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good;
7SWP No. 867/2007 Provided that the punishment specified in clause (i) shall not be awarded if the commanding officer or such other officer is below the rank of Colonel."
13. As is mandated by Rule 26, laying down the procedure for summary disposal of charge under Sections 83, 84 and 85, the delinquent officer is required to be delivered the summary of charge along with the copy of the charge free of cost so as to prepare his defense. The copy of the charge and summary of evidence recorded under Rule 23 of the Rules is required to be served not less than 24 hours before the disposal of the case. With a view to better understand the issue, it would be important to reproduce Rule 26 herein below:-
"26. Summary disposal of charges against officer, Junior Commissioned Officer or Warrant Officer.--(1) Where an officer, a Junior Commissioned Officer or a Warrant Officer is remanded for the disposal of a charge against him by an authority empowered under section 83, 84 or 85 to deal summarily with that charge, the summary of evidence shall be delivered to him, free of charge, with a copy of the charge as soon as practicable after its preparation and in any case not less than-twenty four hours before the disposal. (2) Where the authority empowered under section 83, 84 or 85, decides to deal summarily with a charge against an officer, junior commissioned officer or warrant officer, he shall unless he dismisses the charge, or unless the accused has consented in writing to dispense with the attendance of the witnesses, hear the evidence in the presence with the accused. The accused shall have full liberty to cross-
examine any witness against him, and to call any witness and make a statement in his defence.
(3) The proceedings shall be recorded as far as practicable in accordance with the form in Appendix IV and in every case 8 SWP No. 867/2007 in which punishment is awarded, the proceedings together with the conduct sheet, summary of evidence and written consent to dispense with the attendance of witnesses (if any) of the accused, shall be forwarded through the proper channel to the superior military authority as defined in section 88."
14. From perusal of Rule 26 (1), it is evident that the obligation to deliver the copy of the charge along with summary of evidence recorded under Rule 23 to the Junior Commissioned Officer/Warrant Officer, whose case has to be disposed of by the authority empowered under Section 83, 84 and 85, is with a view to giving an adequate opportunity to the officer charged to reflect with cool mind as to what defence, if any, he would like to take in the proceedings. It is because of this reason the Rule making authority has used the expression „shall‟ to lay down a mandatory time limit of not less than 24 for service of summary of evidence and the copy of the charge before the summary disposal of case.
15. It is, thus, held that Rule 26(1) of the Army Rules 1954 is mandatory and requirement of serving charge along with summary of evidence recorded under Rule 23 is indispensable. Any infraction of this mandatory requirement would be in breach of principles of natural justice and infract seriously the fair trial rights of delinquent. The non-compliance of this mandatory requirement cannot be justified on the ground that since the charged officer pleaded guilty to charge and, therefore, there was no prejudice caused to him. The object of prescribing the mandatory requirement envisaged under Rule 26(1) is to provide reasonable opportunity to the charged officer to reflect with cool mind, weigh calmly the pros and cons of pleading guilty or defending the charge, as the case may. Conducting the summary proceedings hurriedly without adhering to the mandatory requirement envisaged under Rule 26(1) is itself an act prejudicial to 9 SWP No. 867/2007 the charged officer facing the proceedings and deprives him of making a conscious and informed choice and adequately prepare his defence should be decide to contest the charge.
16. In the view I have taken with regard to the mandatory nature of Rule 26(1) of the Rules, which provides for serving summary of evidence and charge sheet on the delinquent officer 24 hours before the summary disposal of the case under Section 85 of the Act, I am supported by a judgment of Hon‟ble the Supreme Court rendered in the case of Union of India and ors v. A. K. Pandey, (2009) 10 SCC 552, wherein Hon‟ble the Supreme Court was confronted with similar provision contained in Rule 34 of the Army Rules, 1954. Rule 34(1) also provides that the accused, who has to be tried by a Court Martial, is required to be informed of every charge for which he is to be tried. On his giving the names of the witnesses or whom he desires to call in his defence, reasonable steps are required to be taken to procure their attendance. The Rule clearly provides that the interval of such person being informed and his arraignment to meet the charge shall not be less than 96 hours or where the accused person is on active service, less than 24 hours. This Rule fell for interpretation of the Hon‟ble Supreme Court in the aforesaid case and after threadbare discussion, the Supreme Court came to the conclusion that expression, „shall not be less than ninety-six hours‟ makes the provision mandatory and violation thereof shall vitiate the trial. Paragraph 22 of the judgment lays down the position of law in respect of Rule 34, which, for purpose of reference, is reproduced hereunder:-
"22. The principle seems to be fairly well settled that prohibitive or negative words are ordinarily indicative of mandatory nature of the provision; although not conclusive. The Court has to examine carefully the purpose of such provision and the consequences that may follow from non- observance thereof. If the context does not show nor demands otherwise, the text of a statutory provision couched in a 10 SWP No. 867/2007 negative form ordinarily has to be read in the form of command. When the word "shall" is followed by prohibitive or negative words, the legislative intention of making the provision absolute, peremptory and imperative becomes loud and clear and ordinarily has to be inferred as such. There being nothing in the context otherwise, in our judgment, there has to be clear ninety-six hours interval between the accused being charged for which he is to be tried and his arraignment and interval time in Rule 34 must be read absolute. There is a purpose behind this provision: that purpose is that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety-six hours. A trial before General Court Martial entails grave consequences. The accused may be sentenced to suffer imprisonment. He may be dismissed from service. The consequences that may follow from non-observance of the time interval provided in Rule 34 being grave and severe, we hold, as it must be, that the said provision is absolute and mandatory. If the interval period provided in Rule 34 is held to be directory and its strict observance is not insisted upon, in a given case, an accused may be called upon for trial before General Court Martial no sooner charge/charges for which he is to be tried are served. Surely, that is not the intention; the timeframe provided in Rule 34 has definite purpose and object and must be strictly observed. Its non- observance vitiates the entire proceedings."
17. What is said about Rule 34 by Hon‟ble the Supreme Court would squarely apply in respect of Rule 26(1). Both the provisions aim at providing the accused a fair opportunity to reflect with cool mind and prepare his defence effectively, if he so desires. If the accused is not given such time and the summary proceedings or the trial, as the case may be, are carried hurriedly and concluded within no time, it is a foregone conclusion that the proceedings or the trial, as the case may be, has been held in clear breach of principles of natural justice and the fair trial rights of the accused have been violated.
18. In the instant case, no such fair opportunity was admittedly provided to the petitioner. Immediately on completion of summary of evidence, a copy of the 11 SWP No. 867/2007 charge and summary evidence was delivered to the petitioner and the proceedings conducted then and there. There was hardly any time given to the petitioner to reflect with cool mind and decide as to whether he should defend the charge or plead guilty. In these circumstances I am inclined to accept the allegation of the petitioner that he was put under pressure to sign few papers which included the plea of guilt purportedly made by the petitioner.
19. It is not that on the basis of the evidence that appeared against the petitioner during summary disposal of the charge that petitioner was awarded „severe reprimand but it was primarily on the ground that petitioner had admitted his guilt. If we go through to the records produced before me by the respondents carefully, it seems that there is ritual compliance of various provisions of the Act and the Rules framed there under, however, it cannot be ignored that all this happened on a single day. The charge, in terms of Rule 22 was heard on 09-09- 2004, the decision was taken by the Commanding Officer to record the summary of evidence on the same day without adjourning the case for the purpose, as mandated by Rule 22, and the summary of evidence was also taken down on the same day under Rule 23. The decision to proceed against the petitioner summarily by the Commanding Officer himself, who was empowered under Section 85 of the Act to deal summarily with the charge, was also taken in terms of Rule 24 on 09-09-2004. Sub-Rule (1) of Rule 26 of the Rules was breached in its compliance, in that, the petitioner was summarily tried immediately after serving upon him the summary of evidence along with copy of the charge. The mandatory period of 24 hours provided under Rule 26 (1) of the Rules was not afforded to the petitioner as a result whereof the petitioner had no time to reflect on the consequences of his pleading guilty or defending the charge. Under this 12 SWP No. 867/2007 surcharged atmosphere and, obviously, under pressure and undue influence of the Commanding officer, the petitioner was made to plead guilty.
20. Viewed thus, I have no hesitation in holding that the entire proceedings were conducted by the Commanding Officer in breach of principles of natural justice and in clear violation of the mandate of providing reasonable opportunity to the delinquent officer envisaged under Rule 26(1) of the Rules. That apart, it is on record that immediately on being inflicted with the „severe reprimand‟ and after collecting the requisite documents the petitioner mustered courage and made non-statutory and statutory petitions to the higher authorities. He even sought review of the punishment awarded to him by the superior authority but unfortunately his case was not put before the authority on the basis of some opinion rendered by some legal authority that the case was not fit for review. At this stage, I deem it appropriate to reproduce Section 87 of the Act, which reads thus:-
"87. Review of proceedings.
If any punishment awarded under any of the sections 83, 84 and 85 appears to a superior military authority as defined in section 88 to be illegal, unjust or excessive, such authority may cancel, vary or remit the punishment and make such other direction as may be appropriate in the circumstances of the case."
21. From reading of Section 87 of the Act, it clearly transpires that if any punishment is awarded under any of the Sections 83, 84 and 85 (Section 85 in the instant case), the entire record is required to be transmitted through proper channel to the superior military authority. This is so provided under Rule 26 (3) of the Rules. The superior military authority, to whom such record of the proceedings is forwarded, is under obligation to apply its mind to find out whether the punishment awarded is not illegal, unjust or excessive. If such 13 SWP No. 867/2007 authority, upon its examination which would obviously call for application of mind, comes to the conclusion that punishment imposed is illegal, unjust and excessive, it may cancel, vary or remit the punishment and make such other direction as may be appropriate in the circumstances of the case. It is thus trite that the jurisdiction to review under Section 87 of the Act is required to be exercised by the superior authority and in the exercise of such jurisdiction, it may be assisted by the legal section of the Army but the ultimate decision must rest with such military authority.
22. In the instant case, the material/record of the proceedings leading to imposition of punishment of „severe reprimand‟ on the petitioner, was never placed before the superior military authority to take a decision as to whether the decision of imposing the punishment of severe reprimand on the petitioner was illegal, unjust or excessive. In this way even Section 87 of the Act too was breached with impunity.
23. Viewed from any angle, the entire proceedings conducted by the Commanding Officer against the petitioner on 09-09-2004 clearly violate the fair trial rights of the petitioner. He has not been given adequate opportunity to defend himself, was rather forced to admit the guilt in the proceedings which were conducted with utmost hurry and concluded in a day. I have also explained in detail the violations committed by the Commanding Officer from time to time during the proceedings. Otherwise also the charge against the petitioner was only that of lack of supervision on his subordinate but nothing has been brought on record as to how the subordinate, who was actually guilty for not accounting for the Ration, was dealt with. The proceedings initiated against the petitioner, which culminated into awarding him the punishment of „severe reprimand‟, are apparently conducted to satisfy the ego of an officer.
14SWP No. 867/2007
24. So far as the allegation of the petitioner, that he was forced to pay a sum of Rs. 12000/-, is not substantiated from record. The respondents are on affidavit to state that no recovery was made from the petitioner.
25. For the foregoing reasons and the discussion, I am of the considered opinion that the impugned order of inflicting „severe reprimand‟ on the petitioner was totally illegal, arbitrary and in breach of the Army Act and the Rules framed there under. I, therefore, find merit in this petition. The same is, accordingly, allowed. The impugned order dated 09-09-2004 is quashed. The respondents shall grant the petitioner all the consequential benefits to which he is found entitled to, pursuant to the quashing of the punishment.
(Sanjeev Kumar) Judge JAMMU:
14 .03.2024 Anil Raina, Addl. Registrar/Secy Whether the order is reportable: Yes