Gauhati High Court
Sri Mohan Arya vs The Union Of India And Ors on 23 June, 2015
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No. 5061/2004
Sri Mohan Arya, aged about 38 years,
Son of Shri Kunjar Ram,
No. 2701512, Rifleman, Gen duty,
27 Assam Rifles,
C/o. 99 APO.
...........Petitioner
-Versus-
1. The Government of India,
The secretary, Ministry of Home affairs,
New Delhi.
2. The Colnol Commandar,
5 Assam Rifles, C/o. 99 APO.
3. The Director General of Assam Rifles, Shillong.
4. Major Parminder Singh, IC No. 50769, N 27
Assam Rfiles, C/o. 99 APO.
..........Respondents
For the Appellant : Mr. G.D. Joshi, Adv.
For the Respondents : Mr. G. Pegu, CGC.
WP(C) No. 5061/2004-CAV Page 1 of 14
BCEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
Date of hearing : 23/04/2015
Date of Judgement : 23/06/2015
JUDGEMENT AND ORDER (CAV)
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 WP(C) No. 5061/2004-CAV Page 2 of 14 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 w ho com m its any of the follow ing offences, that is to say,-
(a) m akes a false accusation against any person subject to this Act, know ing or having reason to believe such accusation to be false; or
(b) in m aking a com plaint under section 26 or section 27 m akes any statem ent affecting the character of any person subject to this Act, know ing or having reason to believe such statem ent to be false or know ingly and w ilfully suppresses any m aterial facts; shall, on conviction by court- m artial be liable to suffer im prisonm ent for a term w hich m ay ex tend to five years or such less punishm ent as is in this Act m entioned ."
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. Further statement made in the writ petition is that he was hospitalized for the period from 21/04/2001 to WP(C) No. 5061/2004-CAV Page 3 of 14 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 :-
"TENTATI VE CHAR GES The accused No. 2701512X R fn/ GD M ohan Arya of 27 Assam , R ifles a person subject to the Arm y Act as a sepoy under Sec 4(1) read w ith SRO 117 of 28 M ar 60 and SR O N o. 318 of 26 Dec 62 is am ended by SR O No. 325 of 31 Aug 77 is charged w ith :-
1 AR M Y ACT SEC M AK I NG FALSE ACCUSATI ON 56(a) AGAI NST A P ER SON SUBJECT TO THE AR M Y ACT K NOW I NG SUCH ACCUSATI ON TO BE FALSE I n that he, at field in M ay 2002, in an application addressed to DGAR has stated that he w as beaten by I C-
50769N M aj. P arm inder Singh, JC-2700201X Nb/ Sub (GD) Nandan Singh, N o. 2700437X Hav/ GD Jibon Gogoi and No. 2701192N Hav/ GD K .C. P atni on 23 April 2001, w ell know ing that the said statem ent to be false.
WP(C) No. 5061/2004-CAV Page 4 of 142. AR M Y ACT SEC- M AK I NG FALSE ACCUSATI ON 56(A) AGAI NST A P ER SON SUBJECT TO THE AR M Y ACT K NOW I NG SUCH ACCUSATI ON TO BE FALSE I n that he, at field in M ay 2002, in an application addressed to DGAR has stated that I C-50769N M aj P arm inder Singh JC-2700201X Nb/ Sub (GD) Nandan Singh, N o. 2700437X Hav/ GD Jibon Gogoi and No. 2701192N Hav/ GD K .C. P atni broke the hand of his child, w ell know ing that the said statem ent to be false.
3. AR M Y ACT M AK I NG FALSE ACCUSATI ON SECTI ON-56(a) AGAI NST A P ER SON SUBJECT TO THE AR M Y ACT K NOW I NG SUCH ACCUSATI ON TO BE FALSE I n that he, at field in M ay 2002 in an application addressed to DGAR has stated that I C-
50769N M aj P arm inder Singh JC-
2700201X Nb/ Sub (GD) Nandan Singh, No. 2700437X Hav/ GD Jibon Gogoi and No. 2701192N Hav/ GD K .C. P atni have threatened and troubled his w ife M rs K hila Arya, w ell know ing that the said statem ent to be false.
WP(C) No. 5061/2004-CAV Page 5 of 144. AR M Y ACT M AK I NG FALSE ACCUSATI ON SECTI ON-56(a) AGAI NST A P ER SON SUBJECT TO THE AR M Y ACT K NOW I NG SUCH ACCUSATI ON TO BE FALSE I n that he, at field in M ay 2002 in an application addressed to DGAR has stated that 27 Assam R ifles personnel have not allow ed him to take proper m edical treatm ent, w ell know ing that the said statem ent to be false.
5. AR M Y ACT M AK I NG FALSE ACCUSATI ON SECTI ON-56(a) AGAI NST A P ER SON SUBJECT TO THE AR M Y ACT K NOW I NG SUCH ACCUSATI ON TO BE FALSE I n that he, at field in M ay 2002 in an application addressed to DGAR has stated that Com dt 27 Assam R ifles favoured I C-
50769N M aj P arm inder Singh being from sam e com m unity w ell know ing that the said statem ent to be false.
6. AR M Y ACT I N A CER TI FI CATE SI GNED BY SECTI ON-57(a) HI M K NOW I NGLY M AK I NG A FALSE STATEM ENT I n that he, at field in M ay 2002 in an application signed by WP(C) No. 5061/2004-CAV Page 6 of 14 him , stated that he belongs to Scheduled Caste Category, w ell know ing the said statem ent to be false.
7. AR M Y ACT LEAVI NG HI S P OST W I THOUT SECTI ON-36(d) OR DER S FR OM HI S SUP ER I OR OFFI CER I n that he, at field (P iphim a P ost) betw een 0700 hrs and 0800 hrs on 24 April 2001 w hile on active service tried to quit his post w ithout orders from his superior officer.
8. AR M Y ACT AN ACT P R EJUDI CI AL TO GOOD SECTI ON-63 OR DER AND M I LI TAR Y DI SCI P LI NE I n that he, at field I N M ay 2002, forw arded an application directly to HQ, DGAR , Shillong w ithout follow ing the laid dow n official channel as provided in P ara 552 of Defence Services R egulation.
9. AR M Y ACT AN ACT P R EJUDI CI AL TO GOOD SECTI ON-63 OR DER AND M I LI TAR Y DI SCI P LI NE I n that he, at field I N M ay WP(C) No. 5061/2004-CAV Page 7 of 14 2002, forged documents w herein in an application addressed to DGAR , signed on the nam e of his w ife M rs. K hila Arya.
Sd/ -
P lace : Field (M andip Grew al)
Dated : 22/ 23 July 2002 Col.
Com m andant"
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 WP(C) No. 5061/2004-CAV Page 8 of 14 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. 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 averm ents m ade in paragraph 10 of the w rit petition, it is respectfully subm itted that a staff inquiry w as held to WP(C) No. 5061/2004-CAV Page 9 of 14 investigate into the allegations levelled by the petitioner. The inquiry confirm ed that the allegations w ere false. I t is further subm itted that in term w ith the Arm y Act Section 122, period of lim itation for a trial is three years. Hence his trial is legal and tenable in law . I t is further subm itted that the offence pertains to m ay 2002 and the petitioner w as served w ith the charge sheet and other docum ents connected w ith the trial on 19.4.2003. M oreover, the records of SCM proceedings w ould 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 w rit petition) has also been issued on 9.7.2003. The sam e w as issued to appraise the petitioner of his right of filing a petition against the SCM aw ard in term s w ith Arm y Act Section 164, if he considered him self aggrieved by the sentence of the SCM . I t is further subm itted that on conclusion of the im pugned Sum m ary Court M artial, the sentence w as duly prom ulgated in term s of R egulation for the Arm y, 1987 P ara 473 read w ith Arm y R ule 131.
15. That in reply to the averm ents m ade in paragraph 13 of the w rit petition, it is respectfully subm itted that the petitioner's conduct has been consistently defiant and insubordinate, he has refused to receive the copies of court of inquiry as w ell as Sum m ary of Evidence. I n this regard answ er WP(C) No. 5061/2004-CAV Page 10 of 14 to Q-29 given by the accused is quoted below [P age E-2 of the annexure-2 refers]:
"I am a soldier and w henever I am called I w ill com e. W hy m ust I take the charge sheet and sum m ary of evidence. W hen the w itnesses are not signing w hy m ust I sign."
I t is further subm itted that the petitioner has participated throughout the Sum m ary Court M artial proceedings, cross-exam ined prosecution w itnesses, m ade a statem ent and also exam ined w itnesses in defence.
16. That the averm ents m ade in paragraphs 14 and 15 of the w rit petition are false, m isleading, m alafide and hereby denied. I t is subm itted that the petition of the petitioner w as duly considered by the DGAR and after due application of m ind, the Director General, Assam R ifles, vide order dated I .12015/ 181/ 2001/ DV-3/ dated 16 Apr 2004 ordered the follow ing.
"R iflem an/ GD M ohan Arya w as tried by
Sum m ary Court M artial under Arm y Act
section 56(a) for M aking False Accusation against a person subject to the Arm y Act know ing such accusation to be false. He w as found "guilty" by the Sum m ary court m artial and w as sentenced "to be dism issed from service" by the Court. During the trial, the WP(C) No. 5061/2004-CAV Page 11 of 14 petitioner w as afforded full opportunity to defend him self. The punishm ent aw arded to the petitioner is though legal but harsh. Therefore, considering the nature of offence, 10 years unblem ished record of service of the individual and on hum anitarian grounds, I direct the dism issal from the service in respect of petitioner be com m uted to com pulsory retirem ent 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. 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 WP(C) No. 5061/2004-CAV Page 12 of 14 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 w henever I am called I w ill com e. W hy m ust I take the charge sheet and sum m ary of evidence. W hen the w itnesses are not signing w hy m ust 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 WP(C) No. 5061/2004-CAV Page 13 of 14 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.
JUDGE Sukham ay WP(C) No. 5061/2004-CAV Page 14 of 14