Padmanabhan Nair, Member (J).
1. Petitioner who was dismissed from military service on 19th October, 2007 as per order passed by Summary Court Martial has filed this application as a Writ Petition before the Honourable High Court of Karnataka challenging the order of Court Martial dismissing him from service and in the alternative for deletion of the remark âunfit for DSC and Civil Servicesâ and for other reliefs. The Writ Petition was transferred to this Tribunal consequent to its formation.
2. The petitioner enrolled in the Indian Army in the Regiment of Artillery as a Gunner Operator â Sepoy on 27.9.2002. After completion of training, he was posted as sepoy on 29.9.2003. On 1.11.2003 he was posted to 174 Field Regiment which was situated at Ferozpur in Punjab. On 1.7.2004 the Regiment of the petitioner moved to Assam From 7.12.2005 onwards, petitioner absented himself from duty. On 28.6.2007, he was arrested by the local police based on an apprehension warrant issued by the military authorities. On 30.6.2007 he was handed over to the local military unit. The petitioner was under military custody for 112 days. He was tried by the Summary Court Martial on 19.7.2007. Petitioner pleaded guilty to the charges and did not adduce any defence evidence. The Summary Court Martial awarded the punishment of dismissal from service. No imprisonment was awarded. But in the discharge certificate it is recorded that the petitioner is unfit for DSC and Civil services. The petitioner filed a petition under Section 164(2) of the Army Act and the same was dismissed on 29.7.2008. He submitted another petition on 16.9.2008 and also issued a notice to the respondents. Thereafter he filed this application as a Writ Petition.
3. The case of the petitioner is that his mother was staying alone. On 29.11.2005 he received information that his mother fell ill and admitted in the hospital. He made several requests to his Unit Commander to grant him leave to attend his hospitalised mother, which was refused. So, on 7.12.2005 he absented from duty on account of the mental stress, agony, anxiety and duress. He went home and attended his mother. He informed the details of the illness of the mother to the Commander and was in constant touch with the unit. It is also averred that he made several enquiries about the progress of his request for discharge. While so, on 28.6.2007 he was arrested and handed over to military custody and subsequently the Summary Court Martial was held and he was dismissed from service. The charge sheet was signed by Adjutant Captain Arvind Vannur whereas the Summary Court Martial was held by Col.R.Ravikumar. That itself was illegal. It is also alleged that Commander was determined to dismiss the petitioner from service. So, he was forced to sign confession under threat and duress. It is alleged that no warning as contemplated under Army Rule 34 was given and no Court of Inquiry was held. It is alleged that there is violation of Army Rule 180, 181, 183 and 184. He was not given opportunity to adduce defence evidence. It is also alleged that the punishment imposed is very harsh and excessive. In addition to the order of dismissal an entry is made in his discharge book that petitioner is 'unfit for DSC and for Civil Service' and this amounts to dual punishment. It is alleged that even if the entire case of the respondents is accepted, the offence committed by the petitioner would come only under Section 39 of Army Act, whereas the charge framed is for the offence under Section 38(1) of the Army Act, which is illegal. It is also averred that Captain Pradeep Dhiman was detailed as friend of the accused. Captain Pradeep Dhiman belong to the same unit and as such he did not gave any effective assistance to the petitioner. The order passed by the competent authority under Section 164(2) is also challenged as illegal.
4. The respondents have filed a statement of objection. It is contended that the proceedings initiated against the petitioner is strictly in accordance with the Act and Rules. It is averred that petitioner remained unauthorisedly absent from duty for more than one year and eight months, before he was apprehended by the police. The averment that the petitioner was unable to report for duty from 7.12.2005 till June 2006 on account of the illness of his mother is false and denied. Petitioner never applied for leave and hence there is no question of any refusal of leave. On 6.12.2005 petitioner informed his Battery Commander that he is disinterested in serving the Army and he may be discharged from service. The Battery Commander informed the petitioner that his request for discharge will be forwarded to the Commanding Officer in accordance with the rules. But the petitioner without submitting any proper application for discharge and waiting for orders deserted from the field area on 7.12.2005 when the unit was deployed in the counter insurgency area. It is also contended that on 7.12.2005 the petitioner reported that he was suffering from illness and wanted to consult a civil doctor. He went out of the field area on that pretext and left the place. It is also averred that the allegation that the charge sheet was signed by a person other than the Commanding Officer is also not true. The charge sheet as well as the proceedings was signed by Col.R.Ravikumar, who was his Commander. It is also averred that the request of the petitioner filed under Section 164(2) of Army Act was to convert the order of dismissal into discharge.
5. The following points arise for consideration in this case.
(1)Whether the case of the petitioner that order of dismissal by the Summary Court Martial proceedings is liable to be set aside?
(2)Whether the petitioner is entitled to re-instatement?
(3)Whether the request of the petitioner that the entry in his discharge book to the effect that 'unfit for DSC and Civil Services' is to be expunged is allowable?
6. For the sake of convenience, all these points can be considered together. The records produced in this case shows that petitioner enrolled in the Indian Army on 27.9.2002. He was posted to 174 Field Regiment (Sehjra) at Firozpur in Punjab which was later on converted into Medium Regiment. The regiment moved to Assam in the counter insurgency area of Dinjan on 15.2.2004. Even though the petitioner has got a case that on 29.11.2005 he received information that his mother was admitted in the hospital and he made several requests for leave and the same was refused, there is absolutely nothing in the record to substantiate the contention. There is nothing on record to substantiate the contention that petitioner reported the condition of his mother to his Commanding Officer. The case of the petitioner that he surrendered before the police is also not supported by any evidence. The definite case of the respondents is that on 6.12.2005, petitioner informed his Battery Commander that he is disinterested in serving the Army and that he may be discharged from service. The Battery Commander intimated the petitioner that he need some time to report the matter to his superiors to get appropriate orders, but without waiting for any formalities, on the next day itself, i.e. on 7.12.2005 petitioner left his unit on the pretext he was feeling unwell and he should consult a civil doctor and then he left the field area and he never reported for duty thereafter. The records also show that petitioner was declared as a deserter on 15th February, 2006. He was arrested by the local police and handed over to military custody on 30.6.2007. So, the case of the petitioner he left the camp on 7.12.2005 and he could not rejoin the camp till 30.62007 because of the illness of his mother is not substantiated. On the other hand, there is material to show that after leaving the Army, petitioner applied for job in the State Government and he was working as a First Division Assistant in Coastal Security Police, Udupi District, Karnataka State from 18.12.2006 to 30.6.2007. So, the contention of the petitioner that because of his emotional stress and strain on account of the factum of illness of mother he was compelled to leave the unit is not correct.
7. According to the petitioner, the charge sheet was not signed by the Commander but by Captain Arvind Vannur. Annexure B1 which relied on by the petitioner is not the charge. It is only an intimation from the unit to the mother of the petitioner to the effect that petitioner was dismissed from service. Petitioner himself has produced the charge and the records pertaining to the entire court martial proceedings. It is signed by Col.R.Ravikumar. The contention of the petitioner that he was not given warning under Rule 34 of Army Rule is not true. The warning for trial was given on 5.10.2007. Petitioner gave a reply only on 16.10.2007. When he was produced before the Summary Court Martial, petitioner pleaded guilty. The court explained to the accused the meaning of the charge to which he has pleaded guilty and ascertained whether he understood the nature of the charge to which he has pleaded guilty. He was explained the difference in the procedure in case he is sticking to the plea of guilty. The court having satisfied itself that the petitioner understood the charge and the effect of the plea of guilt, accepted the same. The records also show that petitioner was given opportunity to intimate the person to be present during trial for help and also the details of witnesses he wished to produce for his defence during trial. The petitioner himself had informed the court that he did not wish to produce any defence witness and he need not be defended by a friend. We find that there is absolutely no illegality or impropriety in the conduct of court martial. So, we do not find any ground to interfere with the findings of the Court Martial to set aside the same. We confirm the same.
8. The petitioner was under military custody for 112 days. Though the only punishment imposed by the Court Martial is dismissal from service and an entry made in his discharge certificate that the petitioner is unfit for DSC and Civil service. According to the petitioner because of this entry, he is now being denied civil employment. Petitioner is a graduate and he has been selected by various departments, but on account of the entry that he is unfit for civil service, he is denied employment. He has also a case that he has not received AGI benefits, encashment of leave, gratuity for five years. A perusal of the discharge certificate shows that in spite of the order dismissing him from service, his conduct is recorded as exemplary. This is clear from the statement as to character and particular of service of the accused, which form Part I of Court Martial Proceedings. It is specifically recorded that irrespective of the trial, the accused general character is exemplary. So, there is absolutely no justification in recording that he is unfit for civil service. Further it amounts to double punishment. It is for the prospective employer to assess the character and conduct of the person and take a decision as to whether he is to be employed or not. So, the entry in his book that he is unfit for civil service is illegal and liable to be expunged. We are of the considered opinion that the prayer of the petitioner that the entry in his discharge certificate to the effect that he is unfit for civil service is to be expunged.
9. In the result, the Transferred Application is disposed of in the following manner: The prayer of the petitioner to quash the Summary Court Martial proceedings and for re-instatement in service are rejected. There will be a direction to the Record Officer, Artillery Records to expunge the words âAND CIVIL SERVICEâ in the discharge book appearing in Part VI of the discharge book. The petitioner is directed to surrender the original discharge book issued to him within one month from the date of receipt of a copy of this order before the competent authority. On receipt of the same, the competent authority shall delete the words 'AND CIVIL SERVICE' appearing in Part VI and issue a new discharge book. It is not sufficient to issue the same book after scoring off the above words. The new book without those words shall be issued to the petitioner at any rate within two months from the date of receipt of the original book. The service benefits, if any, to which the petitioner is entitled and not yet paid shall also be released to him without further delay.
The parties are directed to suffer their costs.
Issue free copies of the order to both sides.