1. Vide this writ petition filed before the Delhi High Court, the appellant challenges the Summary Court Martial (SCM) order of 11.1.1999, wherein he was sentenced to undergo rigorous imprisonment for one month and five days and to be dismissed from service. The appellant sought to be reinstated in service with all consequential benefits. In interim, the appellant expired on 7.12.2005 and his legal heirs have already been impleaded in view of the proviso to Section 394(2) of the Code of Criminal Procedure. On formation of this Tribunal, the writ petition was transferred and is being disposed of by this judgment treating it as an appeal under Section 15 of the Armed Forces Tribunal Act 2007.
2. The appellant contends that he was tried for two offences, one each under Army Act Sections 39(b) and 48. He supposedly pleaded guilty under duress and was sentenced to rigorous imprisonment for one month and five days and to be dismissed from service. The appellant contends that the order of the SCM is totally illegal, erroneous and without jurisdiction and is totally against the facts and law on record. He also contends that the charges levelled against him are baseless and there was inadequate evidence to support the charges and that the punishment awarded to him was wholly disproportionate, excessive and arbitrary. The facts of the matter is that the appellant was enrolled on 25.12.1987 into the Corps of Engineers of the Indian Army and at the time of his dismissal, i.e. in 1998/1999, he was posted to 65 Engineer Regiment. On 1.9.1998, the appellant proceeded on annual leave. While on leave, the appellants wife fell sick and the appellant sent an application for extension of his leave. Although the appellant was living at Alwar and all communication from his unit was being addressed to him at Alwar, however, deliberately and with mala fide intention, the information of cancellation of his leave and ordering the appellant to rejoin duty was sent to him at his Bharatpur address. The appellant, therefore, contends that this was a deliberate and mischievous act on the part of the respondents, for which he has been unfairly charged. The appellant also states that although his trade was that of âStore Keeperâ, the Commanding Officer did not permit him to work in that capacity. This was because in 1996, an anonymous letter had been written regarding wrongful retention of accommodation by Sepoys and the CO suspected the appellant to have been the initiator of this anonymous letter. Accordingly, he was not permitted to work in his capacity as a Store Keeper and was victimised by the respondents. The charge of intoxication under Army Act Section 48 did not stand scrutiny as no medical check up was done. To the contrary, the appellant asked for medical check up which was denied and a false and fabricated medical certificate was produced by the respondents, which was totally illegal. The appellant also contends that he was forced to sign certain blank papers to admit his guilt and that he was not given any opportunity to seek the assistance of a person of his choice to defend him at the SCM proceedings.
3. The brief facts of the case are that the appellant was posted at Ambala Cantt. with 65 Engineer Regiment at the time of commission of the offence. He was granted leave from 1.9.1998 to 10.9.1998 and failed to rejoin on expiry of leave and was absent till 28.11.1998 when he was rejoined at 0500 hours. He, therefore, overstayed leave by 78 days. The second incident, that is of intoxication, occurred on 15.12.1998. The charges that were framed against the appellant are as given below:
FIRST CHARGE
Army Act Section 39(b)
WITHOUT SUFFICIENT CAUSE OVERSTAYING LEAVE GRANTED TO HIM
in that he,
at Ambala Cantt, on 20 Nov 98, having been granted leave of absence from 01 Sep 98 to 10 Sep 98 proceeded to his home town and failed without sufficient cause to rejoin at 0600 h on 11 Sep 98 on the expiry of the said leave till he voluntarily rejoined on 28 Nov 98 at 0500 h.
SECOND CHARGE
Army Act Section 48
INTOXICATION
in that he,
at 1830 h on 15 Dec 98 was intoxicated.
4. The respondents argued that the facts of the matter are that on 1.8.1998, when the appellant proceeded on ten days casual leave, he had already exhausted his entire entitlement of annual leave, i.e. 60 days, for the year 1998. Accordingly, when the appellant requested for extension of leave by 20 days, the unit acceded to the request and granted 30 days advance annual leave for the next year i.e. 1999 and cancelled the ten days casual leave granted to him from 1.8.1998 to 10.8.1998. This was further explained by the counsel by stating that the casual leave entitlement of a soldier is only 30 days in a calendar year and the appellant had already availed 13 days casual leave before proceeding on 10 days casual leave on 1.8.1998. Therefore, in order to accommodate the appellants request for 20 days more leave, he had to be granted only annual leave and not casual leave because granting 20 days more casual leave would have tantamounted to 43 days casual leave, which would have been 13 days more than the permissible limit. By doing so, his unit had shown great compassion, respect and benevolence to the appellant and cannot be construed, in any manner, to be vindictive. After rejoining from leave on 30.8.1998, the appellant immediately asked for 10 days additional leave and he was once again granted 10 days casual leave from 1.9.1998 to 10.9.1998. It was on the expiry of this leave that the appellant did not rejoin duty and was accordingly charged, found guilty and sentenced. It was also contended by the respondents that the issue of addressing all correspondence to the appellant at Alwar/Bharatpur was a smoke screen that the appellant was creating merely to confuse the issue and to gain the sympathy of the Court. The fact of the matter was that Alwar was his fathers address while his own address was shown at Bharatpur. Furthermore, this issue of address was only relevant to the leave granted to him between 1.8.1998 to 30.8.1998 and had no relevance, whatsoever, for the leave granted to him from 1.9.1998, which is the subject matter of the charge, for which he was held guilty and sentenced. Furthermore, there was no question of cancellation of leave or recalling the appellant from leave. It was merely changing the designation of leave i.e. instead of allotting the appellant 10 days casual leave from 1.8.1998 to 10.8.1998 he was allotted annual leave from 1.8.1998 to 30.8.1998, so, therefore, there was no confusion, whatsoever, which is borne out by the fact that the appellant reported back for duty on due date i.e. 30.8.1998. It was also contended by the respondents that the medical leave so produced by him in the writ petition is an afterthought, because it was neither produced by him at the initial hearing of charge or at the summary of evidence nor during the SCM proceedings. If the appellant chose not to bring forward the facts of the illness/medical treatment of his wife at these three two opportunities that were afforded to him, the respondents cannot be blamed for the same. In any case, the medical certificate, per se, indicates very clearly that his wife was an out-patient and that there was no critical illness/sickness. The treatment advised was only for fifteen days and the tests which were supposedly recommended by the civil Medical Practitioner were of a very routine nature and also the period of illness has been indicated as from 6.8.1998 to 3.11.1998, whereas the appellant rejoined duty only on 28.11.1998. Therefore, all in all, this certificate is a fraud and the entire story is being fabricated to earn the sympathy of the Court.
5. The respondents contended that a full-fledged summary of evidence was recorded against the appellant, wherein besides the nine prosecution witnesses, the appellant had also made a statement. The relevant portion of the statement of the appellant at the summary of evidence is as given below:
â...... I went on 10 days casual leave on 01 Aug 98 to 10 Aug 98. However due to my domestic problems, I requested for an extension of 20 days of leave which was sanctioned as 30 days of advance of annual leave for the year 1999. I reported back to the unit on 30 Aug 98. Due to some urgent domestic problem which I do not wish to disclose, I again went on 10 days of casual leave from 01 Sep 98 to 10 Sep 98. I entangled in my home problems so badly that I became OSL, knowing fully well that the punishment to OSL is very severe. Since I was already having three punishments to my credit, I became disappointed towards serving in Army and did not wish to join back to the unit. However, police party of the Superintendent of Police of Bharatpur explained and asked me to join the unit as better course open to me. Accordingly I joined the unit in the morning of 28th Nov 98. ......â
PW 1 Nk. Clerk Rajendran has certified to the aspect of his overstaying of leave and has produced the required documents. PW 2 Sub. Bipen Pandey, who was performing the duties of Company Subedar of the appellant, has also testified to the fact of his leave and also that when the appellant did not return from leave, besides the official actions to be taken by the unit, they had also written a letter to the father of the appellant, who was a serving Head Clerk in 112 Engineer Regiment. PW 3 Hav. Birender Singh was doing the duties of Platoon Havildar and has stated that on 15.12.1998 at approximately 1830 hours, the appellant entered the barrack where a farewell party was being organised for two outgoing soldiers and started abusing all the Platoon soldiers. He has stated that the appellant smelt of liquor and that a report to this effect was made through proper channel to the Company Commander who came to the site of the incident and thereafter ordered the appellant to be placed in the Quarter Guard. On cross examination, the witness conceded that he had not seen the appellant consuming liquor, but had deduced the same from the fact that he smelt of alcohol and that his speech was incoherent. PW 4 Hav. Mangal Singh was performing the duties of Platoon Havildar of the appellant and has certified the facts of 15.12.1998 wherein the appellant had abused the company personnel. This witness also conceded that he has not seen the appellant consuming alcohol and had also reached this conclusion from his stammering and smelling of alcohol. PW 5 Hav. Lal Singh was the Officiating Company Hav. Major of the appellants company and has given the same narration of facts with regard to the evening incident of 15.12.1998 when the appellant had supposedly abused all the platoon soldiers during the farewell party. PW 6 Hav. Sarvesh Kumar was the Guard Commander of the Quarter Guard and had taken the appellant into custody after he was ordered to do so by Capt. A.K Das. PW 7 Sep. Bhupesh Kumar was a soldier in the same platoon as the appellant and has testified to the same facts on the evening of 15.12.1998, wherein the appellant was abusing the platoon personnel under the influence of alcohol. PW 8 Capt. Sharat Kumar was the Medical officer of the Regiment and was the person who examined the appellant and found that his eyes were red, he smelt of alcohol and his speech was incoherent. He had also ascertained from the appellant that he had consumed alcohol. The appellant has not cross examined the Medical Officer and his testimony remained unchallenged. PW 9 Maj. A.K Das was the Company Commander of the appellant and has testified to the facts about his overstaying of leave as well as the incident of 15.12.1998 evening, wherein the appellant, after consuming alcohol, had abused the personnel of the platoon and had been ordered to be placed in the Quarter Guard because he was conversing in a very aggressive and abusive language and was completely intoxicated.
6. The respondents also contended that there was no animosity or mala fide intention on the part of the CO to not assigning him the duties of Store Keeper. It was stated that allocation of duty was based on the assessment of the calibre and potential of every soldier in the unit and it was the sole prerogative of the CO to assign the task to each soldier. The CO could not entrust independent charge of stores worth lakhs of rupees to perpetual offenders in whom he had no confidence. Accordingly, the appellant was employed under supervision until he reached the desired standards. It was also stated that on 15.12.1998, there was no issue of alcohol to the soldiers and for the appellant to have consumed alcohol on non issue day was by itself an illegal act and thereafter to be intoxicated and abuse the unit personnel was not acceptable at all. The Medical Officer had personally examined the appellant and found him intoxicated. The fact of obtaining the appellants signatures on blank pieces of paper was vehemently denied by the respondents and it was clarified that a gazetted officer, Lt. Inder Singh Chauhan was detailed as âfriend of the accusedâ for the appellant. Counsel for the respondents also stated that there was no doubt in the fact that the appellant had pleaded guilty to the charges at the SCM and his signatures obtained at the relevant places below the plea of guilt as well as on the adherence certificate under Army Rule 115(2). Accordingly, all legal and procedural formalities had been complied with in accordance with law and there was no violation of any rights of the appellant. It was reiterated that the testimony of the witnesses, the statement of the appellant at the summary of evidence, the plea of guilty at the SCM and his non-production of any defence witnesses or making any statement in his defence are all indicative of his guilt and there was no reason, whatsoever, put across by the appellant to justify as to why he overstayed his leave by 78 days. Lastly, counsel for the respondents touched upon the proportionality of the sentence by bringing out that the appellant had already earned four red ink entries, three of which were for an offence of overstaying/absent without leave. Considering his record of punishments, his disdain for the law and the fact that he could have been given a sentence of three years imprisonment: the sentence of 35 days imprisonment and dismissal could not be termed harsh, disproportionate or arbitrary.
7. Keeping the above facts in view, we do not find any reason to interfere with the findings and sentence of the SCM of 11.1.1998. Accordingly, the appeal is dismissed.