CWP No.10177 of 2014 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.10177 of 2014 Date of decision:23.5.2014 Ex.
Subedar Major Shri Narain ….Petitioner VERSUS Union of India and others .....Respondents CORAM: HON'BLE Mr.JUSTICE HEMANT GUPTA HON’BLE Mr.JUSTICE FATEH DEEP SINGH Present: Mr.Naresh Kumar Kohli, Advocate for the petitioner.
****** HEMANT GUPTA, J.(Oral) The challenge in the present writ petition is to an order passed by the Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir (for short ‘the Tribunal’) on 03.03.2014 whereby an appeal filed by the petitioner under Section 15 of the Armed Forces Tribunal Act, 2007 (for short ‘the Act’) remained unsuccessful.
The petitioner was enrolled in Army Medical Corps as a Pharmacist on 12.03.1979.
He was promoted to the rank of Subedar Major (Pharm) on 04.08.2008.
While posted at Command Hospital, Western Command on 01.09.2010 he was assigned the responsibilities of Junior Commissioner Officer (JCo.in-charge of Medical Store Office.
The petitioner was subjected to disciplinary proceedings in respect of an incident happened on 01.03.2011.
On the said date, couple of packages of medicine were found in a military vehicle belonging to 140 AD Regiment.
When checked, it was found that the medicines were meant to be Diwakar Gulati 2014.05.28 12:58 I attest to the accuracy and integrity of this document CWP No.10177 of 2014 2 delivered to MI Room of Command Hospital but has been loaded in the vehicle of the another unit for the purpose of pilferage.
The petitioner was due to attain age of superannuation on 31.08.2012 and stands relieved w.e.f.01.09.2012.
The petitioner is one of the suspects made to suffer Court of Inquiry but before attaining the age of superannuation, the summary of evidence was recorded.
But thereafter, fresh summary of evidence was ordered due to legal lacuna vide order dated 05.04.2013.
The said fact was communicated to the petitioner on 15.04.2013, which was disputed by the Petitioner before the Tribunal.
The challenge to the fresh summary of evidence under Section 15 of the Act has been declined by the Tribunal primarily for the reason that Tribunal does not have the jurisdiction in terms of Section 15 of the Act.
Learned counsel for the petitioner has vehemently argued that that there is no provision for conduct of fresh summary of evidence and that there is no evidence against the petitioner which can be adduced against the petitioner in the summary of evidence, therefore, the initiation of such proceedings is unwarranted and is to delay the payment of retiral benefits to the petitioner.
Learned counsel for the petitioner argued that even if the order was not appealable in terms of Section 15 of the Act, the Tribunal had the jurisdiction to entertain the petition in terms of Section 14 of the Act.
It is further argued that even if Section 14 of the Act is not available, the petitioner has the right to challenge the initiation of summary of evidence by way of a writ petition before this Court.
Earlier, he filed a writ petition challenging the fresh conduct of summary of evidence vide CWP No.5985 of 2014 but the same was dismissed as withdrawn on 24.04.2014 as the Diwakar Gulati 2014.05.28 12:58 I attest to the accuracy and integrity of this document CWP No.10177 of 2014 3 petitioner has not challenged the order of the Tribunal.
It is thus contended that in the present writ petition, challenge is not only to the order of the Tribunal but also of summary of evidence initiated by the respondent in the writ jurisdiction of this Court.
We have heard learned counsel for the petitioner and find no merit in the present writ petition.
Section 15 of the Act confers jurisdiction of the Army on the Tribunal in respect of any order, decision, finding or sentence passed by a Court Martial or any matter connected therewith or incidental thereto.
The order of initiation of summary of evidence is not an order passed by the Court Martial which would fall within the jurisdiction of Section 15 of the Act.
Since the petitioner has invoked Section 15 of the Act, therefore, the alternative argument that it was under Section 14 of the Act could not be permitted to be raised by the petitioner.
Even if it is taken to be one under Section 14 of the Act, we find that mere initiation of summary of evidence after finding earlier summary of evidence to be invalid being in violation of Rule 23(3) of the Rules cannot be said to be unjustified.
Even on merits, we do not find any merit in the present Writ Petition.
Rule 23(3) of the Army Rules, 1954 (for short ‘the Rules’) contemplates procedures for taking down the summary of evidence whereas Rule 24 deals with remand of the accused after considering the evidence and statement taken down in writing by considering the summary of evidence by the Commanding Officer.
Clause (c) of sub-Rule (1) of Rule 24 empowers the Commanding Officer to re-hear the case and either dismiss the charge or dispose of it summarily.
The reasons for cancellation of earlier summary of evidence has been communicated to the petitioner on 15.04.2013 that summary of Diwakar Gulati 2014.05.28 12:58 I attest to the accuracy and integrity of this document CWP No.10177 of 2014 4 evidence recorded earlier did not comply with Rule 23(3) of the Rules.
Since, the reason of cancellation of summary of evidence is the non compliance of the statutory rule, therefore, mere fact that fresh summary of evidence has been ordered to be conducted cannot be said to be unjustified.
The Commanding Officer has the power to re-hear the summary of evidence in terms of Rule 24 of the Rules.
The order to conduct fresh summary of evidence is within his jurisdiction.
Thus, we do not find that initiation of proceedings of summary of evidence can be said to be unjustified or untenable in any manner.
Consequently, we do not find any merit in the present writ petition.
Dismissed.
(HEMANT GUPTA) JUDGE MAY23 2014 (FATEH DEEP SINGH) ‘D.
Gulati’ JUDGE Diwakar Gulati 2014.05.28 12:58 I attest to the accuracy and integrity of this document