V. PeriyaKaruppiah, Member Judicial:
1. This is an application filed by the applicant seeking to set aside the Summary Court Martial procedings as illegal and unsustainable in law and to recommend the applicant for promotion to Naib Subedar and to extend the period of service with seniority.
2. The averments made in the application would run as follows :-
The applicant was serving at MT NCO on 30.1.2007. While he was performing his duties, Captain Tushar Chaudhary of 7 Engineer Regiment directed him through Havaldar Alexander to shift a dozer from CETC location âNachna to âDet Engineering Park Jaisalmer on a Tatra Vehicle and Trailor. Accordingly, the applicant along with others moved towards Jaisalmer with Tatra Vehicle attached with a trailor loaded with dozer. On 30.1.2007 at about 2140 hours, while they were travelling on the road 9 Kms short of Jaisalmer, their Tatra Vehicle was stopped by an ASI of Police and he alleged that the Tatra Vehicle had collided with a tractor about 20 kms behind and the driver of the tractor died on the spot. The applicant and the others told the ASI that no accident had occurred with their vehicle. However, the ASI escorted the vehicle with Police to Jaisalmer. The ASI blamed the applicant that he consumed alcohol, which was not true. Without conducting proper medical examination, he obtained a medical certificate from a doctor and obtained a statement from the applicant. When the applicant was taken to the accident spot next day morning, he noticed that the tractor was lying on the left side of the road running from Jodhpur to Jaisalmer. The applicant was kept under escort. During investigation, the applicant narrated his statement and due to the said statement, the case could not be closed by the Commanding Officer. However, the Commanding Officer was under pressure from the Headquarters since the deceased belonged to an influential locality and community. The Commanding Officer of the applicant Colonel Pawan Ramdev threatened him that he would send the applicant home without, any benefit if he did not oblige. The officers of the applicants unit also advised that he would not be heard and it was better to sign wherever they want. The Commanding Officer also convinced him that nothing would happen to him. Therefore, the applicant without understanding the impact or consequences, put signatures in all the forms used for trial before they were filled up. The Summary Court Martial proceedings were completed on those papers and thus the rank of the applicant as Substantive Havaldar was reduced to Sepoy apart from awarding a sentence of two months and 29 days Rigorous Imprisonment. Therefore, the applicant has filed the present application for setting aside the Summary Court Martial proceedings and thereby to revive the rank reduced by way of punishment with seniority. The applicant also asked to be recommended for promotion to Naib Subedar and for his service period to be extended. Accordingly, the applicant sought for allowing of the application.
3. The contentions of the respondents in the Reply Statement would be as follows :-
The applicant was enrolled and got attested as a trained Solider with effect from 27.3.1986. He was posted to 7 Engineer Regiment c/o 56 APO with effect from 1.6.1988 and thereafter, he was posted to 28 Rashtriya Rifle Battalion, c/o 56 APO with effect from 19.8.1994 and to 16 Engineer Regiment with effect from 10.6.1996. He was again posted to 7 Engineer Regiment with effect from 13.3.2000 and served in the unit till he was discharged from service with effect from 1.10.2008 under Rule 13 (3) item III (i) of Army Rules, 1954, on fulfilment of the conditions of his enrolment. While he was serving in the unit, he was performing the duties of Mechanical Transport, Non-Commissioned Officer (MT NCO) and driver of Tatra Vehicles in 7 Engineer Regiment. The applicant was detailed to shift a dozer from Combat Engineering Training Camp (CETC) at location Nachana to Detachment Engineer Park Jaisalmer on 30.1.2007. During transit, the vehicle BA No 03F-017692K TATRA of 7 Engineer Regiment driven by the applicant met with an accident with a civil tractor bearing No. RRQ 6098 at about 2030 hours in a place near Bhagoo K Gaon, 35 Kms short of Jaisalmer and one civilian named Mr. Saided Khan aged about 25 years died on the spot and one civilian Mr. Jetha Ram, aged about 40 years, sustained minor injuries. The Court of Inquiry was ordered by Adhoc Station Headquarters, Jaisalmer, to investigate the circumstances of accident and the death of Mr. Saided Khan vide convening order dated 29.12.2007. After assembling, the Court found that the Tatra Vehicle BA No 03F-017692K driven by the applicant met with an accident with civil tractor No. RRQ 6098 on 30.1.2007. The Court also found that the applicant had consumed alcohol prior to driving which was contrary to the orders on the subject and also recommended disciplinary action against the applicant. The Commander, Jodhpur Sub Area, also recommended to take suitable disciplinary action against the applicant. As per the recommendation of Commander, Jodhpur Sub Area, the applicant was produced before the Commanding Officer 7 Engineer Regiment on 19.5.2007 and a Summary of Evidence and Additional Summary of Evidence were recorded consequent to orders of the Commanding Officer accordingly. The Commanding Officer found that the evidence produced in Summary of Evidence show a prima facie case against the applicant and Charge was framed under Section-69 of the Army Act. Headquarters 475 Engineer Brigade ordered holding a trial by Summary Court Martial against the applicant and the Summary Court Martial found the applicant to be guilty for committing the offence i.e. causing death by an accident which is not amounting to culpable homicide as defined in Section- 304A of Indian Penal Code (I.P.C.) coupled with Army Act Section-69 and imposed a sentence (1) to be reduced to rank, and (2) to suffer Rigorous Imprisonment for two months and 29 days in military custody. The Summary Court Martial was conducted as per the existing rules on the subject and all provisions of the Army Rules and Act were complied with. The Summary Court Martial proceedings are entirely in order and legal. The sentence awarded is just, legal and commensurate with the gravity of the offence for which he stands convicted. The applicant submitted a petition dated 25.5.2011 to the Chief of Army Staff against the findings and sentence of Summary Court Martial, which was submitted by 7 Engineer Regiment to higher authorities through staff channel for consideration by the competent authority. The decision of the competent authority is yet to come as it is still under consideration. Since the rank of the applicant was reduced from Havildar to Sapper as per the order of Summary Court Martial, the discharge order was issued by Records Madras Engineer Group dated 20.7.2008 in that rank only and the applicant was transferred to Pension Department with effect from 1.10.2008. The request of the applicant for being recommended to the promotion of Naib Subedar is not possible. All the retirement benefits admissible under the rules were paid and received by the applicant including service pension at the time of his discharge from service. The present application has been filed at a belated stage with malafide intention. Therefore, the claim of the applicant may be dismissed as not sustainable.
4. On the above pleadings, the following points emerged for consideration in this appeal (application) :-
1) Whether the Summary Court Martial proceedings conducted against the applicant is illegal and unsustainable in law ?
2) Whether the finding regarding conviction and the sentence passed by the Summary Court Martial is sustainable ?
3) If so, whether the sentence passed against the appliant by the Summary Court Martial is proportionate to the offence committed by the applicant ?
4) Whether the reliefs sought for by the applicant to recommend his promotion to Naib Subedar after restoring his rank and seniority and consequent benefits, including extension of period are entitled to him ?
5) To what relief the applicant is entitled for ?
5. Heard M/s. M.K. Sikdar and S. Biju, Learned Counsel for the applicant and Mr.B.Shanthakumar, Learned Senior Panel Counsel assisted by Mr. Capt. Vaibhav Kumar, Learned JAG Officer, appearing for the respondents.
6. The Learned Counsel for the applicant would submit in his argument that the applicant was serving in the army after his enrolment in the year 1986 in different Engineer Regiments and finally, when he was working in 7 (HDR) Engineer Regiment on 30.1.2007, Captain Tushar Chaudhary passed an order through Havildar Alexander to shift a dozer from CETC location Nachana to DEP, Jaisalmer, on a Tatra vehicle and trailor. He would further submit that the applicant obeyed the orders of the Captain and accordingly he took the dozer loaded on the trailor attached to Tatra Vehicle along with three more persons, namely P. Aasai, S. Senthil Kumar and B. Simhadri and started the vehicle by 1440 hours towards Jaisalmer. He would further submit that when the vehicle was about to reach Jaisalmer, short of 9 kms it was stopped by one ASI, alleging that the said Tatra vehicle had collided with one civilian tractor about 20 Kms behind and the driver of the tractor died on the spot. The applicant was wrongly incriminated in the said case and an FIR was also filed and he was taken into custody for no fault of his. He would further submit that the case was taken over from Civil Police by the Army authorities and a Court of Inquiry was convened in which the applicant was made as âa Goat of sacrifice despite the fact that there was no accident nor any negligence on the part of the applicant. Following the Court of Inquiry, Summary of Evidence were recorded and Summary Court Martial was held and which punished the applicant even though there was no sufficient evidence adduced against the applicant. The said punishment was imposed due to vindictiveness of the Commanding Officer against the applicant for the reason that the applicant refused to change his mind regarding the accident in which he was not at all involved. He would further submit that the signatures of the applicant were obtained in the proceedings as if he had pleaded guilty and the Commanding Officer himself endorsed the remarks. He would also submit that the entire evidence produced in Summary Court Martial would not prove the offence said to have been committed by the applicant and, therefore, the entire Summary Court Martial proceedings including the alleged plea of guilty said to have been given by the applicant are also not sustainable. He would further submit that the damages said to have been caused to the tractor by the Tatra vehicle would not be possible, since there was no damage caused or found to the trailor or Tatra vehicle driven by the applicant at the time of the alleged accident. He would further submit that the damages were caused to the tractor on its left side which can be seen from the photographs, which could not have been caused by the Tatra vehicle driven by the applicant and had any accident been caused with the Tatra vehicle, the tractor engine would have been damaged on its right side. He would also submit that the Medical Certificate produced was not supported by blood and urine test so as to decide the consumption of alcohol before driving or intoxication. He would also submit that the tractor driver, who is stated to have died in the accident was not subjected to autopsy, which is essential to find out the cause of his death. He would also submit that the Court of Inquiry conducted did not also find the cause of accident nor the Summary of Evidence was considered by the Summary Court Martial so as to reach a decision that the accident happened only due to rash and negligence on the part of the tractor driver, who died in the accident. He would also submit that the pleading of guilty by the applicant on compulsion would not in any way change the evidence and the evidence would go to show that the applicant was not guilty. He would also submit that the Summary Court Martial should have come to the conclusion that the applicant was not responsible for the accident and to release him from the charge. He would further submit that even otherwise, the punishments imposed against the applicant are grave and harsh and there should not be two punishments for a single offence (i.e.) rigorous imprisonment as well as punishment of reduction in rank. Therefore, he would request us to set aside the Summary Court Martial proceedings and to grant the benefits of promotion to Naib Subedar by considering the original seniority of the applicant and the consequent benefits including extension of service period.
7. The Learned Senior Panel Counsel would submit in his argument that the applicant having pleaded guilty is not entitled for challenging the Summary Court Martial proceedings. He would submit that the pleading of guilty by the applicant was in the presence of the Commanding Officer, who also signed the said proceedings. He would also submit that the applicant had filed a petition before the Chief of Army Staff after his retirement challenging the conviction and punishment imposed on him by the Summary Court Martial and the said petition is yet to be finalised. He would also submit that the Court of Inquiry proceedings and the recording of Summary of Evidence and the Court Martial proceedings were conducted in the accordance with rules and procedures governing the Courts of Inquiry, recording of Summary Evidence and conduct of Summary Court Martial proceedings and, therefore, the applicant cannot challenge the findings of the Summary Court Martial since it was not challenged earlier by the applicant. He would also submit that the applicant has elected to challenge the Summary Court Martial proceedings only in the year 2011, wherein he was discharged from service on completion of his period of engagement under Rule-13 (3) item III (i) of Army Rules, 1954, much earlier i.e. in 2008. Having kept quiet for three years, the applicant cannot challenge the Summary Court Martial which was confirmed. He would also submit that the evidence recorded during Summary of Evidence were properly considered by the Summary Court Martial and the accused was found guilty and, therefore, there is no infirmity in the conviction. He would also submit that the pleading of guilty by the applicant with the support of evidence, would point the accused guilty and, therefore, the conviction and sentence passed by the Summary Court Martial was properly done and, therefore, it is not liable to be set aside as illegal. He would also submit that the punishment imposed against the applicant was fairly proportionate to the gravity of the offence and the applicant was ordered to be kept in military custody during the serving of sentence by the applicant. In view of the petition pending before the Chief of Army Staff against the Summary Court Martial proceedings, the applicant cannot maintain this application before this Tribunal and on that aspect also, the application is liable to be dismissed. He would, therefore, request us to dismiss the application.
8. We have given anxious thoughts to the arguments advanced on either side. The entire copies of Court of Inquiry, Summary of Evidence and Summary Court Martial proceedings along with Civil Court documents were produced by the respondents for our perusal. We have also perused those documents.
9. The challenge put forth by the applicant is against the Summary Court Martial proceedings conducted against the applicant on the following charge:-
| âArmy Act Section 69 | COMMITING A CIVIL OFFENCE THAT IS TO SAY, CAUSING DEATH BY NOT TAKING DUE PRECAUTION, AN ACT NOT AMOUNTING TO CULPABLE HOMICIDE, CONTRARY TO SECTION 304A OF INDIAN PENAL CODEin that he, at about 35 kms from Jaisalmer towards Jodhpur on NH-15 on 30 Jan 2007 by not taking due precaution while driving vehicle BA No 03E 017692K, M/T, TATRA, 6/6 caused the death of Mr Saidad Khan S/o Allbakh Khan on 30 Jan 2007.â |
â1. I hereby state that I was informed by Commanding Officer, 7 Engineer Regiment that I am at liberty to make any statement and call witness in my defence for the offence committed by me. However, I do not want to call any witness.
2. However, I want to state that the police in their report has blamed me for consumption of alcohol without conducting any laboratory test, but merely on the basis of a civilian doctor smelling by breath. I reiterate that I had not consumed anyalcohol on 30 Jan 2007.â
10. The Summary Court Martial proceedings were presided by Colonel Pawan Raman Dev, Commanding the 7 Engineer Regiment. At the commencement of proceedings, questions were put on arraignment on 29.4.2008, to which the applicant had pleaded guilty. However, the second question regarding pleading of guilty was not recorded. On the basis of the pleading of guilty by the applicant, the proceedings of Summary Court Martial began and the answer of the accused was also recorded. Finally, the punishment was given under the caption âSentence by the Court on 29.4.2008 itself. It runs as follows :-
âSENTENCE BY THE COURT
Taking all these matters into consideration, I now sentence the accused Number 1383073 X Havildar/DPMT MC Reddy of the 7 Engineer Regiment:-
To be reduced to ranks and suffer rigorous imprisonment for two months and 29 days. I direct that the sentence of rigorous imprisonment to be carried out by confinement in military custody.â
11. Challenging the said sentence and the proceedings as illegal and unsustainable, the present application has been filed by the applicant. It is an admitted fact that the applicant has presented a petition before the Chief of Army Staff challenging the Summary Court Martial proceedings which is not disposed of and it is still pending. The pendency of the said petition before the Chief of Army staff is now sub-judice to the present application. Therefore, the pendency will not in any way affect this proceedings, before us.
12. On the basis of the investigation done by the Court of Inquiry and its finding and the Summary of Evidence was recorded in respect of the charge against the applicant. Whether the decision reached by the Summary Court Martial was in order and in accordance with procedure, is the point to be considered Pleading of guilty by the applicant has been challenged by the applicant that he was compelled to subscribe his signatures in unfilled forms to plead guilty in the presence of the Commanding Officer and, therefore, he had put his signatures despite he had been denying the accident throughout.
13. Now it has become necessary for us to go through the proceedings of Court of Inquiry and thereafter, the Summary of Evidence recorded in order to adjudicate on the pleadings of the applicant. The Court of Inquiry was no doubt conducted on 9th March, 2007, and witnesses 1 to 7 were examined and their statements were recorded. On the appraisal of the statements, the Court of Inquiry, we find that the tractor driver could not judge the position of the Tatra vehicle attached to a 20 ton trailor carrying a dozer and collided with the trailor and it was also not possible to ascertain whether the tractor driver was intoxicated since the deceased tractor driver Shri Saidad Khan was not taken for post mortem.
14. However, in the Summary of Evidence recorded, 10 witnesses were examined in the presence of the accused (applicant) and the applicant had elected to cross-examine, appropriate witnesses. Those witnesses were also recalled and their Additional Summary of Evidence was also recorded. The gist of those witnesses are necessary for better appreciation of this case.
PW1, namely Shri Jetha Ram Chaudhary, who was travelling in a civil tractor and an injured witness, who went along with the deceased driver Shri Saidad Khan would depose that on the fateful day when they crossed the Tatra vehicle from opposite side, the trailor of the Tatra vehicle collided with their tractor and he became unconscious and after he regained consciousness he found the driver Shri Saidad Khan was lying on the road dead. In his cross-examination, he would say that he could see the military vehicle before the accident. In his Additional Summary of Evidence, he deposed that the tractor with driver was moving from Jaisalmer towards Jodhpur direction and the Army vehicle was moving in the opposite direction. There was adequate road width, but it was a miscalculation by the tractor driver (deceased) and the tractor collided with the trailor. He had also spoken that he informed few relatives through his mobile phone and some relatives came with vehicles and evacuated the body.
PW2 was Dr. G.K. Parmar, SJ Hospital, Jaisalmer, who would depose that he had examined the applicant for the consumption of alcohol. He fairly admitted in his cross-examinaton that no blood and urine samples were taken and examined for ascertaining the consumption of alcohol by the applicant.
PW3 is ASI Hukma Ram, Jaisalmer Police Station. He would speak to the effect that he got information about an accident at about 35 kms from Jaisalmer in which an army Tatra Vehicle BA No 03F-017692K and civil tractor No. RRQ 6098 involved. In the said accident, Sri Saidad Khan, S/o. Sri Allbakh Khan, expired and Sri Jetha Ram Chaudhary was injured. He would also speak that since the relatives wanted the dead body of Sri Saidad Khan without post mortem, he handed over the dead body to those family members. In his Additional Summary of Evidence, he would speak that the body was given to relatives as per High Courts Order in Exhibit 1. In his Additional Summary of Evidence, he would admit that the physical examination of applicant was done by smelling alcohol only and he was not found intoxicated.
PW4, Shri Allabakh Khan, the father of the deceased tractor driver deposed that he had not visited the scene of occurrence and he was handed over with the body of his son Saidad Khan, without autopsy.
PW5, namely, Shri Latif Khan, who was residing at Bhagoo ka gaon, would depose that he was returning from Bhojka village on 30.1.2007 on his motor cycle at about 20.00 hours and he saw a tractor had met with an accident. He recognised the driver of the tractor as Shri Saidad Khan, found dead on the spot and the co-driver Shri Jetha Ram (PW1) was shouting that the army vehicle driver had hit the tractor. Therefore, he followed the army vehicle for about half a kilometer and noted its number. Thereafter, he informed the Jaisalmer Police about the accident by and calling ASI, Hukma Ram (PW2) in his mobile phone and informed him about the accident. In his Additional Summary of Evidence, he would speak that he was the first person to reach the site and Yarukh Khan had reached the accident site after him.
PW6 is Captain Tushar Chaudhary, 7 Engineer Regiment, who would speak that he had issued orders to the applicant to move the dozer by loading it on a trailor from CETC location Nachna to GE Engineering Park, Jaisalmer. He would also speak to the effect that he had directed the applicant and others to move the dozer towards Nasirabad covering a maximum distance before last light. He was not recalled for Additional Summary of Evidence.
PW7, Havildar S. Senthil Kumar, 7 Engineer Regiment, who accompanied the applicant in Tatra vehicle for executing the orders of PW6, spoke about the orders passed by Captain Tushar Chaudhary to load a dozer on a trailor for being towed by the Tatra vehicle to Jaisalmer. He would also depose that at about 21.40 hours, 09 kms short of Jaisalmer, one Sub Inspector, two constables and a civilian travelling in gypsy van stopped their vehicle and told them that the Tatra vehicle had collided with a tractor and the driver of the tractor died on the spot. He said that he was not aware of the accident and immediately the said Inspector arrested the vehicle and the applicant and others were taken to police lines, Jaisalmer, and the applicant was taken to Police custody and others stayed back with Tatra and dozer.
PW8 is one Havildar K.V. Alexander, who had communicated the orders of the Captain Tushar Chaudhary, to move the dozer from Nachna to Jaisalmer, to the applicant.
PW9, namely one Naik P. Aasai, who also accompanied the applicant in the Tatra vehicle, corroborated the evidence of PW7 Senthil Kumar.
PW10 is namely Spr B. Simhadri. He also corroborated the evidence of PW7, PW8 and PW9.
15. Considering the Summary of Evidence and Additonal Summary of Evidence recorded, the Summary Court Martial after considering the pleading guilty by the applicant had come to the finding that the applicant was guilty and the punishment was imposed on two counts. Whether the finding reached by the Summary Court Martial, is in accordance with law, has to be answered.
16. No doubt, it is true that the applicant was directed by PW9 Captain Tushan Chaudhary through Havildar Alexander to transport a dozer placed on a trailor to be towed by a Tatra vehicle from Nachna to Jaisalmer on 30.1.2007. Along with the applicant, PWs 7 to 9 were travelling in the Tatra vehicle. the evidence of PWs 7 to 9 and the case put forth by the applicant before the Court of Inquiry proceedings and Summary of Evidence are one and the same. Accordingly, the applicant and PWs 7 to 9 were travelling in the Tatra vehicle bearing BA No 03F-017692K from Nachna at 1440 hours to Jaisalmer on 30.1.2007. They were travelling in the Tatra vehicle towing the trailor carrying the dozer with a speed at 25-30 kms per hour and when they were about to reach Jaisalmer 09 kms short of Jaisalmer, they were stopped by ASI from Jaisalmer, who came in a gypsy van with Police constables and stopped the vehicle. The said ASI told them that the Tatra vehicle collided with one civil tractor bearing No. RRQ 6098, 25 kms behind the said place and the tractor driver died on the spot and one person also injured. When the applicant and PWs 7 to 9 denied the accident by the Tatra vehicle with the tractor, the ASI did not heed to it, but took them to police lines and the applicant was arrested and the other PWs 7 to 9 were left in the arrested Tatra vehicle and they were waiting in the Tatra vehicle. This would go to show that the Tatra vehicle was taken by the applicant and other co-driver and during the time of stoppage of the vehicle by the ASI of Jaisalmer, the vehicle was driven by the applicant. The applicant or PWs 7 to 9 were not aware of any accident at that time.
17. However, in the evidence of PW1, a co-driver of the deceased driver of the tractor, the tractor had collided with the Tatra vehicle. He had also spoken to the effect that the Tatra vehicle was approaching from the opposite side at the time of accident and the tractor had collided with the trailor of the Tatra vehicle and immediately, he sustained minor injuries and became unconscious and on getting consciousness, he witnessed that the driver of the tractor, namely Saidad Khan, found dead due to injuries. The other persons, namely one Latif Khan and Yarukh Khan, who were stated to have witnessed the accident were not seen at the scene of occurrence. Therefore, we could see that the evidence of those persons cannot be trustworthy. The only reliable evidence to speak about the accident is the injured witness PW1. According to him, the tractor was attached with a borewell machine which collided with the trailor of the Tatra vehicle and it was damaged. On a careful scrutiny of the evidence of PW7 to 9 and the statement of the applicant, we could understand that the collission of the tractor on the trailor was not heard or felt by them when they were proceeding to Jaisalmer. In the said circumstances, whether the accident of the tractor could have been caused by any other vehicle is the prime question to be solved. The evidence of PW1 is certain that the army vehicle had approached and collided with the tractor in which he was travelling as a co-driver. For the purpose of ascertaining the credibility of his evidence, we have to see the photographs and the rough plan of the scene of occurrence. The photographs produced by the applicant in Annexure A7 and A8 would go to show that the tractors left side engine was severely damaged. The sketch showing the place of occurrence produced in Annexure A14 would show that the tractor is approaching towards Tatra vehicle on its right side. If at all there was a collision, the right side of the engine should have been badly damaged whereas the photograph shown in Annexure A8 would depict the damaged portion on the left side of the tractor. In the papers of the Civil Court proceedings, we can see the âproperty search and seizure would reflect that the Tatra vehicle belonging to the Army and the tractor bearing No.RRQ 6098 were involved in the accident. There was no motor vehicles Inspectors report produced regarding the damages caused to the vehicles involved in the accident. If it is produced, we could understand whether any damage was caused to the Army vehicle in the collision. However, in the Court of Inquiry proceedings, we could see the photoprahs of the Tatra vehicle and the trailor. No original photographs of the copies or Ex.M were produced for our perusal. In the said photo copies of the colour photographs, we could see the paint marks of the tractor in red at the edge of the trailor which carried the dozer. Therefore, we could see that the collision of the tractor should have been caused at the back end of the trailor of Tatra vehicle, after the Tatra vehicle crossed the tractor and the tractor should have collided with the trailor of the Tatra vehicle. It is very much understood that the dozer loaded in the trailor would be very heavy. It is the evidence of PWs 7 to 9 and the statement of the applicant that they could not hear any sound or noise due to any accident since the movement of the trailor with dozer had emanated huge noise. Coupled with these circumstances, when we approach the evidence of PW1 in the Additional Summary of Evidence, he deposed in the Chief examination as follows :-
âThere was adequate road width but it was a miscalculation by the tractor driver (deceased) and the tractor collided with the trailor.â
Therefore, it is quite clear from the evidence of PW1 that the Tatra vehicle crossed the tractor and due to the miscalculation of the tractor driver (died in the accident), the tractor collided with the trailor of the Tatra vehicle despite there was adequate road width on their left side. This aspect of evidence was not considered by the Summary Court Martial, but it was entirely carried away by the pleading guilty of the applicant, which is now under challenge by the applicant. The evidence produced in Summary of  Evidence is quite clear that the tractor driver was the main cause for the collision of the tractor with the trailor of the Tatra vehicle. However, the applicant, who was the driver of Tatra vehicle at the time of accident, should have felt the collision and stopped the vehicle. His explanation was that even the noise or jerk due to collision could not be felt while driving could, some time, be true. For the said reason, it cannot be said that the applicant, who was driving the Tatra vehicle at the time of accident cannot be held liable. These evidence would go to show that there was a composite negligence on the part of the applicant and the tractor driver, who drove the tractor and caused collission of the tractor against the trailor of Tatra vehicle. How would be the ratio of negligence calculated, depends on the evidence and circumstances of the accident.
18. The applicant drove the Tatra vehicle attached with the trailor carrying the dozer and was plying 25-30 kms per hour and crossed the tractor whereas the tractor driven by the deceased Saided Khan collided against the trailor of Tatra vehicle due to his miscalculation. In the said circumstances, we have to see the state of the applicant, who drove the Tatra vehicle at that time. He was opined to have consumed alcohol prior to the driving, but was not found intoxicated. The evidence of the Doctor, who was examined as PW2, would disclose in his Additional Summary of Evidence that he did not conduct any blood or urine test for the applicant in order to conclude that he consumed alcohol. He said that he smelt alcohol from the mouth of the applicant. It is a settled law that the blood and urine test alone would decide consumption of alcohol and intoxication. The mere smelling of alcohol from the mouth of the applicant may be due to the consumption of any tonic or any other similar drugs containing alcohol, taken by the applicant. It is for the prosecution to prove conclusively that the applicant had drunk alcohol during the time of driving the vehicle. Therefore, the accusation against the applicant that he consumed alcohol during the time of driving the Tatra vehicle has no legs to stand. In the said circumstances, the Summary Court Martial should not have entirely relied upon the pleading of guilty by the applicant and pronounced the verdict. It ought to have gone into the evidence produced before it and appreciate the evidence to come to a correct conclusion. In the background of these facts when we assess the ratio of negligence, we could see that the tractor driver was at a negligence of 90% and the applicant had the negligence of 10% for the collision of the Tatra vehicle trailor and the civil tractor taken place on 30.1.2007 at N.H. Road towards Jaisalmer. Therefore, the offence said to have been committed by the applicant under Section-69 of the Army Act coupled with Section- 304A of Indian Penal Code should have been considered as proved to that extent.
19. No doubt, the applicants charter in the course of his service was to do transportation of the dozer from Nachna to Jaisalmer when the accident took place and, therefore, the proceedings before the Court of Inquiry, recording of Summary of Evidence and the conduct of Summary Court Martial are within jurisdiction of his Army, since the Civil Court has no jurisdiction to try the case. In the said circumstances, the constitution of Court of Inquiry, Summary Court Martial and the proceedings before the Court of Inquiry, recording of Summary of Evidence and Summary Court Martial proceedings are perfectly in order. However, the decision reached by the Summary Court Martial is not fully correct. Even though 10% of negligence was found on the part of the applicant, he ought have been convicted, with proportionate sentence. The punishment imposed upon the applicant to undergo rigorous imprisonment for two months and 29 days along with the reduction of rank cannot be considered as proportionate, in view of the provisions of Section-69 of Army Act, 1950, and Section-304A of Indian Penal Code. Section-69 runs thus :-
âCivil offences.- Subject to the provisions of section 70, any person subject to this Act who at any place in or beyond India, commits any civil offence, shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say.-
(a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.â
According to Section-69 (b), the punishment should be a punishment for the offence by law in force in India (i.e.) as per Section-304A Indian Penal Code, or an imprisonment for a term which may extend to seven years or such less punishment as is mentioned in this Act. Therefore, the Summary Court Martial can impose the punishment as given under Section-304A or a punishment of imprisonment for a term which may extend to seven years or such a lesser punishment as mentioned in this Act. Therefore, punishment can be imposed by the Summary Court Martial as per Section-69 of the Act, if the applicant is found guilty. According to the verdict of the Summary Court Martial, the punishment given to the applicant is âto be reduced to rankâ and âsuffer Rigorous Imprisonment for two months and 29 days in military custodyâ.
20. Section-304A of Indian Penal Code runs as follows :-
â304A. Causing death by negligence.â Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.â
21. If the Summary Court Martial wants to punish the applicant as per the punishment assigned for the offence by law (i.e.) I.P.C., the applicant ought to have been punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Therefore, the applicant should have been imposed with the punishment of imprisonment with fine or fine alone as per I.P.C. If the Summary Court Martial elects to impose sentence as per next provision, it may impose a punishment of imprisonment which may extend to seven years. Similarly, if the Summary Court Martial has elected to impose lesser punishment as mentioned in this Act, it should have imposed a lesser punishment than the punishments referred under Section-69 of the Army Act.
22. However, the provisions of Section-73 of the Act would entitle the Summary Court Martial to impose additional punishment in appropriate cases. As far as this case is concerned, the Summary Court Martial had imposed two punishments against the applicant. One is reduction in rank and another is rigorous imprisonment for two months 29 days in military custody.
23. We may refer to the decision of Honble Apex Court in M.P. Gangadharan and Anr. v. State of Kerala and Ors. (2006) 6 SCC 162, where it was declared that the question of reasonableness and fairness on the part of the statutory shall have to be considered in the context of the factual matrix obtaining in each case and that it cannot be put in a straitjacket formula. The following passage is in this regard apposite:
â34. The constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix obtaining in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the court must be satisfied that a case has been made out for exercise of power of judicial review. We are not unmindful of the development of the law that from the doctrine of Wednesbury unreasonableness, the court is leaning towards the doctrine of proportionalityâ¦â¦â¦..â
24. In Ranjit Thakur v. union of India and Ors. (1987) 4 SCC 611, the Honble Apex Court was dealing with a case where the petitioner had made a representation about the maltreatment given to him directly to the higher officers. He was sentenced to rigorous imprisonment for one year for that offence. While serving the sentence imposed upon him he declined to eat food. The summary court martial assembled the next day sentenced him to undergo imprisonment for one more year and dismissal from service. The Honble Apex Court held that the punishment imposed upon the delinquent was totally disproportionate to the gravity of the offence committed by him.
25. So also in Ex-Naik Sardar Singh v. Union of India and Ors. (1991) 3 SCC 213 instead of one bottle of brandy that was authorized, the delinquent was found carrying four bottles of brandy while going home on leave. He was sentenced to three months rigorous imprisonment and dismissal from service which was found by the Honble Supreme Court to be disproportionate to the gravity of the offence proved against him.
26. In Bhagat Ram v. State of Himachal Pradesh (1983) 2 SCC 442 the Honble Supreme Court held that if the penalty imposed is disproportionate to the gravity of the misconduct, it would be violative of Article 14 of the Constitution.
27. In the light of the principles laid down in the aforesaid Judgements, when we approach the factual matrix of the present case, it is quite clear that the applicant served the sentence of rigorous imprisonment of two months 29 days and the rank of the applicant was also reduced. These two punishments are not appropriate in accordance with Section-69 coupled with Section-73 of Army Act. Considering the facts and circumstances of the case, any one of the punishments should have been imposed on the applicant in consideration of the lesser magnitude of the offence committed by him. The imprisonment already undergone and served by the applicant cannot be withdrawn since it was already suffered and served by the applicant. Therefore, it is jusifiable to set aside the punishment imposed against the applicant regarding reduction of rank. If the punishment imposed against him by the Summary Court Martial towards the reduction of rank is set aside, that can be made good by placing him in the same rank from the date of implementation of reduction of rank and he could also be given the same seniority and on the basis of the said seniority, he could also be given promotion, if the applicant is entitled. Therefore, we are of the considered view that the punishment imposed by the Summary Court Martial in respect of reduction of rank is not correct nor proportionate to the magnitude of the offence and the said punishment is, therefore, set aside. For the foregoing discussions, we are of the considered view that Points 1 to 4 are decided in favour of the applicant in respect of setting aside the punishment of reduction in rank, only.
28. Point No.5: In view of our discussions held in Points 1 to 4, the Summary Court Martial proceedings held against the applicant was found illegal in respect of imposing punishment of reduction in rank and accordingly it is set aside. The Summary Court Martial proceedings in other respects are maintained good and the punishment imposed on the applicant regarding reduction of rank alone is set aside and consequently the applicant is found entitled to be placed in the same rank on and from the date of implementation of the reduction of rank; be restored with the seniority and in case the applicant is found entitled to promotion before the completion of his engagement or discharge, he shall be promoted, post-retirement and be given with all the benefits payable to the applicant.
29. In fine, the application is allowed to that extent as indicated above. The respondents are directed to pass suitable orders for placing the applicant in the same rank on and from the date of implementation of reduction of his rank and to give him the same seniority and if the applicant is found eligible, to consider his promotion, at appropriate time, along with his batch mates and if so promoted, to give him the difference of benefits till the date of his retirement in respect of his pay and allowances and also to give the retirement benefits proportionately as per rules within a period of three months from this date. In default, the respondents are liable to pay interest at 9% p.a. on the arrears of pay and allowances and on the arrears of retirement benefits payable to the applicant, from today till the date of payment. However, there is no order as to costs.