The Court upheld the validity of the Court Martial proceedings, affirming that proper procedures were followed and the punishment was proportionate to the offenses committed.

ORDER :

R.N.MANJULA, J.

The petitioner has filed this Writ Petition to call for the records relating to the impugned order issued by the second respondent dated 04.09.2017 in No.C/09348/DV-3(B) and quash the same and consequently, direct the second respondent to cancel the reversion of the petitioner to the post of Signalman and restore him to the original post of Havildar.

2. Heard Mr.R.Dhamodaran, learned counsel for the petitioner, Mr.K.S.Jeyaganeshan, learned Senior Panel Counsel for R1 to R3 and perused the materials available on record.

3. The brief facts of the case are as follows:

On 13.08.2002, the petitioner faced a summary trial before the Court Martial and was tried under Section 41(2) of the Army Act, 1950. At the conclusion of the trial, he was imposed with the punishment of three months rigorous imprisonment and he was also demoted from the post of Havildar to Signalman. He filed an appeal on 05.04.2003 and the same was rejected on 26.08.2003. On 07.10.2003, the petitioner had filed a Second Appeal and that was also rejected on 28.11.2003.

3.1. The petitioner has filed a Writ Petition in W.P.C.No.20048 of 2004 before the Kerala High Court. In the said Writ Petition, a direction has been given to the respondents to reconsider the petitioner's appeal. Thereafter, the appeal filed by the petitioner was rejected on 04.09.2017. The petitioner has filed a Writ Petition in the High Court of Kerala in W.P(C) No.13744 of 2018 and that was returned due to lack of jurisdiction. Hence, this Writ Petition has been filed seeking the above relief.

4. Mr.R.Dhamodaran, learned counsel for the petitioner submitted that the fifth respondent has developed a personal animosity due to a previous incident where he refused to sanction leave and created tension. On 07.08.2002, the petitioner was placed under observation, but in reality, he was held in close arrest with guards, handcuffs and restrictions on movements which violated military norms. He was physically tortured by the fifth respondent and he was not given treatment for his injuries. The charges were manipulated and the original charges under Section 39 (d) of the Army Act was replaced with Section 41(2) to ensure more punishment. The petitioner was not given with due opportunity to put forth his proper defence and the testimonies of witnesses were influenced by the fifth respondent. Despite, lack of strong evidence, the petitioner was convicted on 24.03.2003 and was sentenced to three months rigorous imprisonment and demotion from the post of Havildar to Signalman.

4.1. The rejection order dated 04.09.2017 has been passed without considering the new contentions raised by the petitioner. Though the petitioner has already served 3 months rigorous imprisonment, he was given with an another punishment of demotion from the post of Havildar to Signalman without considering his earlier unblemished service records. The punishment imposed was against the principles of proportionality. The petitioner was forced to leave his post due to inhuman treatment and death threats given by the fifth respondent. The Court Martial failed to consider this crucial fact and hence this decision is unjust and unsustainable. Initially, the charge was framed under Section 39(d) of the Army Act and later replaced with Section 41(2) suggesting an intentional modification to secure conviction. The conviction order under Section 41(2) lacks evidentiary proof and it is legally unsustainable. The petitioner was not informed of his right to engage a defence assistant. Vital documents including the summary of evidence and confirmation order were not served on the petitioner. The order of Court Martial was cryptic and without any reasoning. Rules 22 and 23 of the Army Act were not followed. As per Rule 23, summary of evidence has to be taken within 24 hours, but the same was not followed.

5. Mr.K.S.Jeyaganeshan, learned Senior Panel Counsel for the respondents 1 to 3 submitted that as per Section 116 of the Army Act, the