O.A. No. 35 of 2012. Case: C. Chellathurai Vs Union of India, represented by Defence Secretary Ministry of Defence, Chief of the Army Staff, HQ 33 Corps. and Commanding Officer. Armed Forces Tribunal
| Case Number | O.A. No. 35 of 2012 |
| Counsel | For Appellant: Mrs. Malarvizhi Udayakumar and For Respondents: Mr. B. Shanthakumar, SPC |
| Judges | V. Periya Karuppiah, Member (J) and Anand Mohan Verma, Member (Ad.) |
| Issue | Army Act, 1950 - Sections 120, 120(2), 34, 37, 40(c), 69; Constitution of India - Article 14 |
| Judgement Date | August 30, 2013 |
| Court | Armed Forces Tribunal |
Order:
Anand Mohan Verma, Member (Ad.)
1. This petition has been filed seeking relief to quash the Summary Court Martial Proceedings dated 11th February 1994 and consequently to re-instate the petitioner in service with all consequential benefits. The factual matrix is that the petitioner was enrolled as Cleaner (Motor Transport) in 1980 and subsequently was upgraded as Driver Grade II. When he was posted to a Unit in Siliguri (West Bengal) in January 1994, he during Sainik Sammelan made a statement which was construed as insubordination and consequently he was tried for this offence by a Summary Court Martial and was awarded the punishment of six months R.I. and dismissal from service. His appeal against the sentence awarded by the Summary Court Martial was rejected by the Chief of the Army Staff by an order dated 6th May 1996. He sent a representation on 26.2.2006 which was rejected vide respondent's letter dated 26th April 2006 wherein it is stated that only one petition can be submitted against the findings and sentence of the Court Martial. The petitioner filed the present Original Application on 13th March 2012 with M.A. No. 20 of 2012 for condoning the delay of 5607 days. The delay was condoned and the main O.A. was admitted.
2. The petitioner through his O.A. and pleadings of the learned Counsel Mrs. Malarvizhi Udayakumar would state that he had an unblemished service of nearly 14 years during which he served wherever he was posted by the Army. On 18th January 1994 during Sainik Sammelan, the petitioner would submit that in a very humble manner he voiced his opinion that he would not be able to perform guard duty at night. However, the Commanding Officer Lt. Col. V.N. Singh, the fourth respondent issued a Charge Sheet on 5th February 1994 under Army Act Section 40(c) for using insubordinate language. The petitioner would state that the Charge Sheet was signed by the 4th respondent and the subsequent proceedings were initiated and inquiry was conducted by the very same officer. The same officer thereafter constituted the Court by which the petitioner was tried by Summary Court Martial and awarded very severe and harsh punishment not commensurate with the alleged offence. The petitioner would say that the order passed by the 4th respondent during the Summary Court Martial is bad in law and is against the Principles of Natural Justice. No man can be a Judge of his own case the learned counsel would plead. His Post-Confirmation Petition against the award of punishment and sentence of Summary Court Martial was rejected and subsequently, he submitted a Reference Petition on 26th February 2006 which too was rejected stating that only one appeal can be preferred. The petitioner would highlight that the CO himself being the officer against whom the alleged offence was committed and the said officer himself constituting the Court was commented upon by JAG Branch and an explanation was sought for from the officer concerned. The learned counsel for the petitioner would plead that the Army Act Section 120, Note 2(d) was not complied with and the entire proceedings are vitiated. The offence against the officer holding the trial would be sufficient to disqualify an officer to sit as a Member of GCM or DCM and would debar from holding an SCM, unless there is an emergency. In the instant case, the offence was allegedly committed on 18th January 1994 whereas the Summary Court Martial took place on 11th February 1994 which indicates that there was sufficient time to make a reference to the authorities and obtain prior approval in time. No prior approval was obtained in writing. In support of her arguments, the learned counsel would cite judgments reported in 1982 (2) SLJ 582 (SC) and AIR 1987 SC 2386 (1) between Ranjit Thakur and UOI & Ors. The learned counsel would submit that the petitioner is physically fit and being a civilian driver is entitled to serve till the age of 60. Therefore, she would plead that the petitioner be re-instated into service with all consequential benefits.
3. The respondents would submit that all civilian GT drivers are required to perform duty for 48 hours for a week. They have to perform night guard duties for the safety and security of vehicles/stores. The excess duty hours so spent by an individual are compensated by granting suitable relief/compensatory day-off. The petitioner had refused to perform the night guard duty and had used insubordinate language to his superior officer during Sainik Sammelan conducted by Lt. Col. V.N. Singh, the then Commanding Officer of the Unit. The petitioner was charged under Army Act Section 40(c) and was tried by Summary Court Martial on 11th February 1994. His petition was rejected by the Chief of the Army Staff by the order dated 6th May 1996 and a Reference Petition was rejected by Army Headquarters vide letter dated 26th April 2006. The respondents would also plead that the petitioner remained silent for 5067 days before approaching the appropriate forum and therefore, the case suffers from delays and laches and is hopelessly barred by limitation and therefore be dismissed.
4. Heard both sides and perused the documents.
5...
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