Back
2008 Supreme(All) 926
[2008(5) ADJ 688]
ALLAHABAD HIGH COURT
BEFORE : BHARATI SAPRU, J.
Ex. No. 14533338-K, C.F.N. MAHENDRA KUMAR TIWARI ......Petitioner
Versus
UNION OF INDIA AND OTHERS .........Respondents
(Civil Misc. Writ Petition No. 2855 of 1998, decided on 15th April, 2008)
Counsel :
G.D. Mukerji, Col. (Retd.) S.D. Tiwari, Satyajit Mukerji, Rajesh Pathak, P.N. Chaturvedi and Ajay Bhanot for the Petitioner; U.N. Sharma, B.N. Singh and R.C. Shukla, Addl. S.C. for the Respondents.
Headnote:Army Act, 1950—Sections 63, 56(a), 164(2), 39(d), 18, 46(a), 82, 116 and 120—Army Rules, 1954—Rules 22, 23 and 129—Dismissal—Punishment of reduction of rank from Naik to Craftsman—Proceedings of Summary Court Martial—Petitioner was found in field near a primary school in suspicious circumstances with one civilian with whom petitioner was alleged to be engaged in unnatural act of sex—Petitioner had been absent from Roll call, without taking due permission to be away from 22 hrs.—Tried and punished by giving him reduction in rank—Thereafter, posted out to another unit from Naik to Craftsman—Complaint of petitioner that civil lawyer was not allowed to examine or cross-examine, was not justified, as it was impermissible under Rules of 1954 (Rule 129)—Held, Colonel Administration, who conducted Summary Court Martial, was competent to try disciplinary case against petitioner—And also it cannot be said that any part of Rule 22 of Rules of 1954 was violated in the case of petitioner—Petitioner could not establish that any Part of Rule 22 was either violated or contravened—Moreso, petitioner has not pleaded that he was denied opportunity to defend himself in Summary Court Martial, or that any injustice has been done to him, warranting any interference under Article 226 of Constitution—Respondents punished petitioner by dismissal, violating Sections 63 and 56(a)—And both proceedings related to discipline of Army. [Paras 42, 48, 49 and 50]
Hon’ble Bharati Sapru, J.—Heard learned Counsel for the petitioner and the learned Addl. Solicitor General of India appearing on behalf of respondents.
2. The petitioner has filed the instant writ petition seeking the following reliefs :
(i) to issue a writ, order or direction in the nature of certiorari quashing the sentence of the Summary Court Martial (Annexure 5 above);
(ii) to issue a writ, order or direction in the nature of certiorari quashing the order of rejection of the petition under Section 164 (2) of the Army Act submitted by the petitioner to respondent No. 2 (Annexure 7 above);
(iii) to issue a writ, order or direction in the nature of mandamus directing the respondents to reinstate the petitioner in service with pay allowances and seniority;
(iv) to issue any other and further order as this Hon’ble Court may deem fit and proper under the circumstances of the case;
(v) to award the costs of this petition to the petitioner.”
3. By the impugned order, an order of dismissal was passed against the petitioner on 17.6.1995 and thereafter the petitioner’s appeal under Section 164 of the Army Act, 1950 (hereinafter referred to as the Act of 1950) had also been rejected by the army authorities on 23.10.1997.
4. The facts of the case are that the petitioner Mahendra Kumar Tiwari was serving with 509 Army Base Workshop, Agra Cantt. From 1.8.1990 to 24.4.1992. On 11.2.1992 it was reported by one person that the petitioner was found in a field near Kendriya Vidyalaya Primary School under suspicious circumstances with one civilian with whom the petitioner was alleged to be engaged in unnatural act of sex. The petitioner had been absent from roll call without taking due permission to be away from 22 hours.
5. The petitioner was tried under the provisions of Section 39 (d) of the Army Act, 1950 and he was punished by giving him reduction in rank under Section 18 of the Act of 1950.
6. The petitioner was thereafter posted out to another unit i.e. 623 EME Battalion at Ranchi on 24.4.1982. Later on 1994 the petitioner was posted to 608 EME Battalion in Jammu & Kashmir.
7. The version of the petitioner is that while the petitioner was posted in Agra, the authorities were inimical to the petitioner, on account of the fact that the authorities and officials at Agra unit were putting pressure on the petitioner to sell off his new motorcycle, which had been given to him by his father to them and he was resisting to do so. The petitioner was punished for certain other acts of harassment and because he had not succumbed to the pressure, the authorities in the Agra unit tried to falsely implicate him for indulging in an offence of disgraceful conduct under Section 46 (a) of the Act, 1950.
8. The petitioner approached the Battalion Commander Lt. Colonel R.S. Jolly to ventilate his grievance but according to the petitioner no heed was taken to his grievance. Therefore the petitioner had no option but directly sent his complaint to the respondent No. 2 Chief of the Army Staff.
9. The respondent No. 2 Chief of the Army Staff took cognizance of the complaint of the petitioner and asked for a Court of enquiry to be convened to go into the complaint of the petitioner. The Court of enquiry was convened and it had completely exonerated the petitioner and according to the petitioner, the Battalion Commander annoyed with this fact also. Therefore he charged the petitioner for having failed to appear for parade/duty at the fixed time under Section 39 (d) of the Act, 1950. The petitioner was thus awarded punishment of reduction of rank from Naik to Craftsman.
10. According to the petitioner that the authorities were very annoyed with the petitioner and therefore they raked up the cases against the petitioner and charge-sheeted him on 18.4.1995 under the provisions of Section 63 read with Section 56 (a) of the Act, 1950. The charge-sheet issued to the petitioner reads as under :
“CHARGE-SHEET
11. The accused No. 14533338-K Cfn Mahendra Kumar Tiwari of 608 EM
