Original Application No. 231 of 2014. Case: Basant Kumar Singh Vs The Union of India and Ors.. Armed Forces Tribunal
| Case Number | Original Application No. 231 of 2014 |
| Counsel | For Appellant: A.K. Singh, Advocate and For Respondents: Dileep Singh, Central Govt. Counsel assisted by Subodh Verma, Departmental Representative |
| Judges | D.P. Singh, J. (Member (J)) and Air Marshal Anil Chopra, Member (A) |
| Issue | Armed Forces Tribunal Act 2007 - Section 14; Army Act, 1950 - Sections 19(a), 26, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 39, 39(a), 39(b), 45, 46, 47, 48, 56; Constitution of India - Articles 21, 33; Indian Evidence Act, 1872 - Section 1... |
| Judgement Date | October 15, 2015 |
| Court | Armed Forces Tribunal |
Order:
D.P. Singh, J. (Member (J)), (Regional Bench, Lucknow)
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Present Original Application under Section 14 of the Armed Forces Tribunal Act, 2007 has been preferred by the applicant being aggrieved with the impugned order of discharge passed in pursuance of power conferred by Army Rule 13(3)(iii), (v), as contained in Annexure No. A-1 to the O.A. on account of four red ink entries.
FACTS
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The applicant was enrolled in the Indian Army in Artillery Corps as Gunner (Washerman) on 20.09.2001. During course of service in the trade of Gunner (Washerman), notice dated 03.12.2012 was served indicating therein four red ink entries as a ground of being undesirable for the army, keeping in view the contents of Army Headquarter letter dated 28.12.1998. After receipt of reply, the applicant has been discharged from service.
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From the material and pleadings on record, it appears that one black ink entry was awarded on account of 12 days overstay of leave with pay fine of 14 days by the Commanding Officer on 30.09.2006.
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Later on by order dated 24.01.2008 the applicant was punished with red ink entry for 14 days rigorous imprisonment on account of intoxication at 08.35 pm.
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Thereafter, on 09.09.2011, the applicant was deprived of appointment of Lance Naik by Commanding Officer for finding him intoxicated at 08.20 pm on 01.09.2011 with an entry of red ink.
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Again by order dated 05.01.2012 he was granted red ink entry with rigorous imprisonment of 21 days being found intoxicated at 08.30 pm on 03.01.2012.
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Another intoxication was detected on 28.11.2012 at 07.30 pm by the Commanding Officer, hence 28 days rigorous imprisonment was awarded in red ink entry on 28.11.2012.
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Show cause notice dated 03.12.2012, a copy of which has been filed as Annexure A-1 to the O.A. is reproduced as under:
"CONFIDENTIAL
Headquarters
2 Mountain Artillery Brigade
Pin-926902 c/o 99 APO.
03 December 2012.402301/BKS//A
Number 15151610W
Gunner (Washerman)
Basant Kumar Singh
67 Field Regiment
PIN-925767
c/o99 APOSHOW CAUSE NOTICE
It has come to my notice that you have Four red ink and one black ink entries, thus, rendering you undesirable for further retention in the Army. The details of these entries are as under:--
(a) Army Act Section 39(a) dated 30 September 2006
Awarded "14 days Pay Fine" by Colonel SC Verma, Commanding Officer, 660 Army Aviation Squadron for having over stayed leave from 03 September 2006 to 14 September 2006 (Total period of absence 12 days)
(b) Army Act Section 48 dated 24 June 2008. Awarded "14 days Rigorous imprisonment" by Colonel Anupam Jain, Commanding Officer, 67 Field Regiment, for having found intoxicated at 2035 hours on 02 June 2008 when returned back to unit line from out pass.
(c) Army Act Section 48 dated 09 September 2011. Awarded "Deprived of the appointment of Lance Naik by Colonel Atul Tripathi, Commanding Officer, 67 Field Regiment for having found intoxicated at 2020 hours on 01 September 2011, at Unit Regimental Police gate.
(d) Army Act Section 48 dated 05 January 2012 Awarded "21 days Rigorous imprisonment by Colonel Atul Tripathi, Commanding Officer, 67 Field Regiment for having found intoxicated at 2030 hours on 03 January 2012, in Other Ranks married accommodation area.
(e) Army Act Section 48 dated 28th November 2012 Awarded 28 days "Rigorous imprisonment" by Colonel Atul Tripathi, Commanding Officer, 67 Field Regiment for having found intoxicated at 1930 hours on 29 October 2012 at unit line.
In view of the above, your further retention in the Army is not considered desirable in terms of Army Headquarters letter No A/13210/159/AG/PS2 dated 28 December 1998. Please explain reasons as to why you should not be discharged from service under Army Rule 13 item iii (v).
Your reply should reach the undersigned by 15 December 2012 failing which it will be assumed that you have nothing to state in your favour and necessary administrative action will be initiated against you.
Sd/-....
(S.C. Verma)
Brigadier Commander" -
It appears that after serving notice, the applicant was discharged.
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Attention has not been invited by learned counsel for the respondents towards reasoned and speaking order passed and communicated in pursuance of impugned show cause notice. Service of the decision to the applicant seems to have been dispensed with by making entry in the service record. According to service record, the applicant was discharged on 29.03.2013 for the following reasons:
(i) S3H.A.P.E. (T-24) ALCHOHOL DEPENDENCY SYNDROME.
(ii) UNFIT FOR DSC.
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It may be noticed that neither in the notice nor in the punishment awarded, on the basis of red ink entries, there is any allegation that during the alleged intoxicated state of mind, the applicant had violated any local order or quarreled with colleagues or some or was having violent behaviour. This fact has been specifically pleaded in para 4.6 of the O.A., which for convenience sake, is reproduced as under:
"That all the four red ink entry awards were for the charges under Army Act section 48, intoxication (drinking alcohol). All drinking offences are alleged to have been committed in the unit premises in the evening hours, when the applicant was not on duty (2035 hrs, 2020 hrs, 2030 hrs, 1930 hrs). It may be noted that in all the three red ink entry charges, the applicant has not been charged for any offence other than "intoxication", like violent behavior, quarrel etc. The offence of drinking during non-duty hours could at best be termed as violation of local orders, which is a very mild offence, for which he has already been severely punished (Rigorous Imprisonment). Looking at the offences list in chapter - VI of Army Act 1950 (Section 34 to 70) it can be seen that intoxication (section 48) is one of the lightest offences, more serious one''s being, striking or threatening superior officer, disobedience to superior officer, insubordination and obstruction, unbecoming conduct, extortion and corruption etc."
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In response to averments contained para-4.6 of the O.A., reply has been given in para-14 of the counter affidavits wherein contents of para-4.6 have not been categorically denied. Hence inference may be drawn that the applicant had not indulged in any violent act or disobeyed order of local authorities or quarreled with someone. Merely on account of consumption of liquor he seems to have been granted red ink entries, punished and later on discharged. The last three red ink entries have been given by the same Commanding Officer with allegation of intoxication in his Unit and that too, within a period of one year followed by the notice. The reasons mentioned in para-14 of the counter affidavit seem to be an afterthought as it does not seem to be supported by original order of punishment.
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Proceedings under Army Rule 22 read with Army Rule 180, the reason assigned for punishment is borne out from the record annexed with the counter affidavit, which is reproduced as under:
NOTICE
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From a perusal of enquiry report and finding recorded thereon, the punishment awarded on account of intoxication co-relate with consumption of liquor in Unit on account of purchase from outside. There is no allegation, nor even a whisper, that the applicant has not purchased liquor from the Army Canteen. It is also not borne out how purchase of liquor from outside is misconduct.
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Admittedly, a quota has been fixed for army personnel to purchase liquor. Regulation dated 07.10.2008 contains authorized quota for armed force personnel. Contents of Regulation dated 07.10.2018 is reproduced as under:
"Tele 23092347
Integrated HQ of MOD (Army)
Army HQs/QMG''s Branch
Dy. Dte Gen Canteen Services
L-1 Block, Room No. 15
New Delhi - 1000 01No. 96219/Q/DDGCS 07 Oct 2008
Headquarters
Southern Command (Q)
Western Command (Q)
Eastern Command (Q)
Central Command (Q)
Northern Command (Q)
South Western Command (Q)
HQ ARTRAC (Q)
HQ Andaman & Nicobar Command (Q)
Naval HQ (PDPS)
Air HQ (Dte of Accounts)
Coast Guard HQs
CSD HQ, MumbaiSCALES OF EMFL EX-CSD
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Reference this HQ letter No. 96219/Q/DDGCS dated 31 May 2005
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Due to various representations received from the environment, existing liquor quota of all entitled categories has been reviewed by the competent authority.
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Revised scales of liquor per month will be as under:
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It may be noted that the notice served on the applicant speaks for only red ink entries and not intoxication. It also does not allege the purchase of liquor from outside source, which has prejudiced the applicant to submit proper reply in response to show cause notice on 03.12.2012 (supra). In consequence thereto notice loses its legal sanctity and suffers from substantial illegality.
HISTORY
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The consumption of liquor by armed forces personnel seems to be generation old practice according to a research paper published by Edgar Jones & Nicola T. Fear of institute of psychiatry, Kings College London published in December 2010.
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Traditionally alcohol has been used in the military to cope with the intense stress of battle but also as a way of mediating the transaction from the heightened experience of combat to routine safety. The use of alcohol has divided medical opinion. Some doctors viewed it as wholly harmful to both social and occupational function and to health, while others argued that alcohol had a specific role in lifting morale, aiding unit cohesion and protecting soldiers from adjustment disorders. Although alcohol has always been identified as incompatible with military service, the effects of habitual heavy drinking among military personnel are less well understood.
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Although alcohol has been associated with UK armed forces for many centuries, its role has been controversial. In 1875, for example, Edmund Parkes, profession of military hygiene, questioned the spirit ration given to British soldiers engaged in the Ashanti campaign of 1874, concluding that ''the reviving power of the first issue is not always so considerable as might be supposed and indeed I...
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