T.A No. 216 of 2010 (Writ Petition (C) No. 11195 of 2005). Case: Ashandar Kumar Vs Union of India (UOI) and Ors.. Armed Forces Tribunal
| Case Number | T.A No. 216 of 2010 (Writ Petition (C) No. 11195 of 2005) |
| Counsel | For Appellant: Virender Singh Bharat, Adv. and For Respondents: Naveen sharma, Adv. |
| Judges | S.S. Kulshrestha, J. and S.S. Dhillon, Members |
| Issue | Army Act - Section 40; Armed Forces Tribunal Act, 2007 - Section 15; Evidence Act, 1872 - Section 114; Army Rule - Rule 22 |
| Judgement Date | December 10, 2010 |
| Court | Armed Forces Tribunal |
Judgment:
(Principal Bench At New Delhi)
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This writ petition has been filed by the Appellant who is aggrieved by the Summary Court Martial proceedings, findings and sentence of 6.1.2004, by which he was tried for an offence under Army Act Section 40(c) and sentenced to three months imprisonment and dismissal from service. 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.
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Before proceeding with the contending versions of the two parties, it would only be appropriate to give a brief factual matrix of the incident. The Appellant was posted to 14 JAT, which was at that point of time, serving in an active field area in Jammu & Kashmir. The Appellant had recently returned to the unit from a tenure with HQ 350 Infantry Brigade and was being interviewed by his Commanding Officer on 30.12.2003. As part of his interaction with the CO, he was asked as to whether during his assignment with HQ 350 Infantry Brigade he had ever been punished for any offence. The Appellant is supposed to have replied the CO in a very insolent manner. The CO, therefore, ordered the Appellant to be interviewed by him subsequently as part of the orderly room procedure. Thereafter, when the interview parade was being dismissed, the Appellant used some insubordinate language and threw his belt in the air. Immediately thereafter, he was placed in detention and charged for the offence as under:
AA SECTION 40(c)
USING INSUBORDINATE LANGUAGE TO HIS SUPERIOR OFFICER
in that he,
at field, on active service, on 30 December 2003 while being marched out of interview parade shouted at the Adjutant IC-52437 H Major Deepak Joshi "what arrest can you carry out I myself will give you my belt" or words to that effect and threw his belt in the air.
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The first and foremost argument propounded by the Appellant was that he was not present during the trial and that in actual fact, no SCM was held. He had been taken into custody on 30.12.2003 and on 6.1.2004, i.e. the day of his trial, he was called to the office of the Commanding Officer, Col. Pant, where he was handed over the SCM proceedings and sent back to the Quarter Guard. It was also argued that his signatures do not appear anywhere on the original record of this SCM. This contention was opposed by counsel for the Respondents by stating that the Appellant was a habitual offender and had resorted...
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