Court : Armed forces Tribunal AFT Regional Bench Kolkata
..... we have already pointed out that the court martial proceeding is a judicial proceeding for all practical purpose as provided in section 152 of the army act 1950.the finding of the gcm, being the highest judicial forum in respect of the army discipline, to our mind cannot be ignored in this way. ..... on the part of the concerned authority to issue the show cause notice to the petitioner on the basis of the charges which were already decided by a gcm proceeding, which has got the status of a judicial proceeding as per section 152 of the army act 1950. ..... according to the petitioner issuance of show cause notice under section 19 of the army act read with rule 14 of the army rules is not only unwarranted in the facts and circumstances of the case but wholly without jurisdiction as this provision can be availed of when the central government and chief of the army staff are satisfied that the trial of the officer by a court martial is inexpedient or impractical. ..... called ws-00980m lt iman of the same regiment, in his office, used abusing language to her, to wit, that she was having a honeymoon there and that she had given her hole to capt rs pundir last night.and that her hole was not satisfied by one man and she wanted a different male every night and, therefore, all the jawans of the regt were in danger since she was a whore roaming around freely in the regt ..... in the petition it is claimed by the petitioner that he joined indian army as a commissioned officer in 1983. .....
Tag this Judgment!Court : Armed forces Tribunal AFT Regional Bench Kolkata
..... 29.8.2000 the petitioner filed an application under section 164 and 165 of the army act 1950 before the chief of the army staff, new delhi. ..... admittedly the accused / applicant faced summary court martial on the charge under section 39 (a) of t he army act on the allegations that he absented himself without leave from unit line from 17.00 hrs to ..... the accused has claimed that the provision of section 131 of the army act regarding the taking of oath or affirmation in the prescribed manner was ..... such question of following the provision of section 131 of the army act of that chapter does not arise at ..... it appears from section 120(4) of the army act that the presiding officer in a summary court martial may pass any sentence which may be passed under this act, except a sentence of death or transportation or of imprisonment for a term exceeding the limit specified in sub-section (5). ..... on the contrary if we look into section 116 of the army act then it will appear that it has been laid down therein to the effect ..... he has further contended therein that mandatory provision as laid down in the army act and rules were not followed by the presiding officer while holding summary court martial ..... section 71 of the army act has clearly provided that a presiding officer of a court martial proceeding can pass sentence of dismissal from ..... shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed. .....
Tag this Judgment!Court : Armed forces Tribunal AFT Regional Bench Kolkata
..... the competent authority has been given this power by the army acts and rules, which has been supported by the army orders issued from time to time. ..... it is the settled position of law that the husband is duty bound to maintain his wife and child and for this, special provision has been made in the army acts and army rules. ..... it is the settled position of law that the authority exercising powers u/s 90(i) of the army act must act reasonably and fairly, apart from giving a reasonable opportunity to the army personnel concerned. ..... there is nothing mentioned in the army act or army rules regarding the procedure to be adopted in processing a claim for maintenance. ..... true it is, in the relevant army order, it has been provided that the amount of maintenance allowance sanctioned will not exceed 33% of the pay and allowance and will not be at a rate higher than 22% of pay and allowance in respect of the wife and 5.5% of pay and allowance in respect of the child. ..... according to the respondents, after due deliberation, the order of maintenance was passed by the competent authority u/s 90(i) of the army act read with rule 193 of army rules. ..... in this respect, army order has been issued from time to time wherefrom it will appear that when such an application is submitted, then, the applicant would be asked to file an affidavit stating therein her status and also whether she has any independent income of her own or not. ..... 90 and 91 of the act and rule 193 of the rules are relevant. .....
Tag this Judgment!Court : Armed forces Tribunal AFT Regional Bench Kolkata
..... since the court martial proceeding was held in violation of the provisions of the army act and also in violation of the principles of natural justice, so, the applicant has prayed that the decision as passed in the court martial proceedings, should be set aside and the respondents should be directed to reinstate the applicant in the service. 6. ..... and consequent to that, a court of enquiry was held and recording of summary of evidence was ordered and the applicant was directed to face the said summary court martial proceedings on the basis of two charges, as famed u/s 46(a) of the army act. ..... nature of the offence, as committed by the accused/applicant, clearly shows that the applicant is not a fit person to be retained in the military service and under such circumstances, we are of the opinion that the sentence of dismissal from service was rightly passed by the presiding officer of the scm. ..... the case of the applicant is that he was appointed as radio operator in the army and in connection with the said job, he was posted at various places and was discharging his duties to the satisfaction of his superior officers ..... a charge-sheet was issued against the applicant whereby two charges were framed for disgraceful conduct against the applicant under section 46(a) of the army act. ..... this fact coupled with the fact hat the accused himself pleaded guilty in the summary court martial proceeding, clearly establishes the guilt of the accused in commission of the offence, as stated in the charges. .....
Tag this Judgment!Court : Armed forces Tribunal AFT Regional Bench Kolkata
..... true it is that the honble apex court in the decision as reported in air 1987 s c 2386 (supra) has held that non-compliance of section 130 of the army act by not asking the accused as to whether he had any objection regarding the formation of the summary court martial proceeding, will vitiate the entire proceeding and on this ground the same can be quashed. ..... decision has been reported in (1989) 2 s c case 438 wherein by way of review, the supreme court held t hat section 130 of the army act applies to summary general court martial and not to summary court martial as section 116(1) applies to the latter. ..... it appears that the law as enunciated by the apex court is clear on this point that section 130 of the army act is not at all applicable so far as summary court martial proceeding is concerned. ..... sixthly, the learned advocate for the applicant further argued that the victim girl was admittedly a child and as per section 118 of the indian evidence act, the presiding officer was under legal obligation to test her general power of understanding by putting questions to her and since that step was not taken, so it must be held that no evidential value should be attached to the statement as made by the child witness, that is, the victim ..... if there is an attempt to outrage the modesty of a girl then this will be sufficient to attract the provision of section 354 of the indian penal code although evidence may be lacking as to whether actually commission of the offence took place or not. .....
Tag this Judgment!Court : Armed forces Tribunal AFT Regional Bench Kolkata
..... it was observed by the honble judges that court martial authority as per section 71 of the army act 1950 has enough power to pass a sentence of forfeiture of pension amount of a person ..... argued that in the pension regulation it has been provided that an individual who is dismissed under the provision of the army act, is ineligible for pension or gratuity in respect of all previous service and in exceptional cases, the president only can grant such pension in favour of such person. ..... to forfeit the whole or part of pensionary or other benefits, ought to be taken into account by the competent authority under regulation 16(a) .even while considering these later factors, the normal rule is that pensionary and other benefits are to be granted unless the competent authority comes to the conclusion that the service of the officer taken as a whole was not satisfactory from the beginning or unless the offences which are proved ..... the petitioner was dismissed from service under the army act he is not entitled to get pension and gratuity as per pension regulation 1962. ..... the respondents are directed to comply with such formalities as indicated above, within six months from this date by way of passing reasoned order and by way of allowing an opportunity of hearing to the petitioner and to communicate such decision to him within seven days of passing such reasoned order .in case the petitioner is not satisfied with the order as may be passed by the respondents authority in this respect, then .....
Tag this Judgment!Court : Armed forces Tribunal AFT Regional Bench Kolkata
..... further, the petitioner in his application reiterates that he was awarded seven days rigorous imprisonment (ri) by his commanding officer under a proper offence report charged under section 39 (a) of the army act, 1950. ..... he was tried summarily for the said offence under section 39 (a) of the army act and awarded a punishment of seven days ri in military custody ( ..... union of india and ors (supra): the ibid judgment actually relates to excess punishment awarded to the petitioner in a summary court-martial for an offence punishable under section 39(a) of army act, absence without ..... in the instant case, the petitioner was an army employee and such absence without leave is a serious offence under the army act which cannot be compared with violation of service rules in ..... fact a signed undertaking dated 6th february 2006 by the petitioner to indicate that the contents of the subject show cause notice were explained to him in the language he understood and his signed reply to said show cause notice have been annexed as part of aad centre letter dated 9th september 2006 (annexure p-4 to the wp). ..... petitioner, pravat kumar saha, was enrolled in the army air defence corps of the indian army on 11 march 2005 and reported for training to army air defence (aad) centre at nashik (maharashtra) ..... therefore, discharge of the petitioner for unlikely to make an efficient soldier under army rule 13(3) (iv) appears to be quite in order and such an action cannot be treated as a double jeopardy as pleaded by the .....
Tag this Judgment!Court : Armed forces Tribunal AFT Regional Bench Kolkata
..... petitioner preferred an appeal under section 164 of the army act 1950 and also an application under section 182 of the act before the goc-in-c, head quarter, eastern command for suspension ..... the respondent on the contrary argued that as per section 116 of the army act 1950 only the commanding officer is entitled to preside over such ..... the scm proceeding was duly attended by two officers as per provision of section 116(2) of the army act and as such we do not find any statutory violation on the part of the commanding officer in presiding over the scm, as argued by ..... the commanding officer or the convening officer, provided that the charges have, in fact, before trial been approved by the commanding officer and the convening officer or notwithstanding any defect or objection, technical or other, unless it appears that any injustice has been done to the offender, and where any finding and sentence are otherwise valid, they shall not be invalid by reason only of a failure to administer an oath or affirmation to the ..... the learned advocate for the petitioner that the victim got the clue from the additional statement made by her parents during the recording of summary of evidence and in the process also gave statement in that line although such statement was not made by her during the recording of her statement at the time of ..... attended throughout by two other persons who shall be officers or junior commissioned officer or one of either, and who shall not as such, be sworn or affirmed. 21. .....
Tag this Judgment!Court : Armed forces Tribunal AFT Regional Bench Kolkata
..... contested all these issues highlighting not only the delay aspect, but also another issue, wherein the opponents felt that the petitioner could have filed statutory complaint under the provisions of section 26 of the army act, 1950. ..... these two aspects were contested by the petitioner in paragraph-7 of the rejoinder by rightly mentioning that statutory provisions for complaint was not applicable in this case and the delay in filing the writ petition before calcutta high court was on account of non-receipt of medical documents till 26th may, 2000, when the respondents communicated that they were not in a position to ..... in the said opinion, the classified specialist psychiatrist has considered the petitioner could not be retained in service and has recommended for invaliding him out of service in medical category eee- (psy), having diagnosed him as a patient of neurosis (conversion reaction ..... , the ibid judgment has been relied upon by the respondents while submitting on 7th february, 2011, the ratio and substance of this decision highlights the principle that, no administrative authority can overrule the findings with regards to attributable or aggravation of a disease, as the collective and unanimous opinion of a medical board which was constituted for that purpose must hold. ..... the petitioner, parimal sarkar was enrolled in the army, army medical corps (in short the amc) as a sepoy in december, 1993 and was discharged on medical grounds on 26th july, 1995 (annexure p/1 of the writ .....
Tag this Judgment!Court : Armed forces Tribunal AFT Regional Bench Kolkata
..... were for disobedience of order given by a superior; charge under army act (aa) section 41 (2). ..... he has also alleged that the charges leveled against him for disobedience of order on 30th july 2009 and on 03rd august 2009, merely stated that a verbal order was passed, it was not substantiated by any circumstantial or documentary evidence that a specific command was given to the applicant against which the ..... amply clear that the authorities had followed laid down procedures in dealing with the case, commencing from hearing of the charge as per army rule (ar) 22 and the subsequent recording of s of e and its culmination in the scm. ..... do so as a matter of fact he was so defiant that he did not even put his signatures where required in spite of repeated orders by the officer recording the summary of evidence (s of e) and by his co during the stage of hearing of charge as also during the scm proceedings. 13. ..... to maintain discipline in the army is paramount, it also needs men who can work under trying conditions and not take refuge behind lame ..... also stated that no specific direction was given to him to report for duty and that he worked diligently on the successive days as also on 03rd august 2009 ..... in reply highlighted that the entire disciplinary proceedings were in complete order and the principle of natural justice had been strictly complied with. ..... since the applicant had an injury in his little finger of the right hand and he being in great pain could not attend to this assigned duty. .....
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