O.A. No. 68 of 2012. Case: A. Karunai Udaiyarajan Vs Union of India, New Delhi, The General Officer Commanding in Chief Headquarters Southern Command, Pune and The Commandant Madras Regimental Centre, Wellington. Armed Forces Tribunal

Case Number:O.A. No. 68 of 2012
Party Name:A. Karunai Udaiyarajan Vs Union of India, New Delhi, The General Officer Commanding in Chief Headquarters Southern Command, Pune and The Commandant Madras Regimental Centre, Wellington
Counsel:For Appellant: Mr. V. Parthiban for M/s. Ayyar and Iyer, Legal Practitioner and For Respondents: Mr. B. Shanthakumar, SPC
Judges:V. Periya Karuppiah, Member (J) and Anand Mohan Verma, Member (Ad.)
Issue:Army Act, 1950 - Sections 153, 164, 164(2), 39(b), 39(d), 54(b), 71, 71(a) - (e), 71(e); Constitution of India - Articles 17, 21, 41
Judgement Date:April 19, 2013
Court:Armed Forces Tribunal
 
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Order:

V. Periya Karuppiah, Member (J), (Regional Bench, Chennai)

  1. This application has been filed by the applicant praying for a direction to call for the records in respect of the proceedings No. A/2406002/525/DV-3 dated 30.11.2011, issued under the signature of 2nd respondent and forwarded by 3rd respondent in the letter dated 31.1.2012 arising out unactioned and returned non-statutory petition of February, 2011 and to quash the same and to further lift the regimental veil in not considering the statutory petition dated 22.12.2011 filed under Section-164 of the Army Act and also to direct the respondents to reinstate the applicant into service with all consequential and attendant benefits in the substantial interest of equity and fairness within the time limit and also to pass suitable other directions. The case of the applicant as stated in the application would be as follows:-

    The applicant was enrolled as a Sepoy in the Madras Regiment on 26.6.2002. After undergoing training, he was posted to 27 MADRAS. He was further re-posted to 54, Rashtriya Rifle till 2007. On 5.8.2007, the applicant was granted 64 days of annual leave commenced from 6.8.2007 to 8.10.2007. The applicant left home on 4.10.2007 to rejoin duty. When he was traveling in a bus from Madurai to Chennai, when he checked his baggage's at Trichy bus station, the suitcase containing his Identity Card was found missing and he was worried about the punishment in the unit for the loss of Identity Card and, therefore, he was hesitant to go to unit and did not also want to go back home. When he was sitting in the bus stand at Chennai, one of the passengers took him to Salem for a job and the applicant worked with one Vel Murugan Drillers Borewells vehicle, Thiruchenkodu, as a helper till 4.3.2010. However, his mother lodged a complaint about the missing of son with the local Police Station at Muthukulathur. The applicant had spoken to his uncle about his position and since his uncle told him to return back home, he took leave with Vel Murugan Drillers Borewells vehicle on 5.3.2010 and reached his native place Selvanayagapuram, where his parents and relatives reside. On 8.3.2010 at 7.00 P.M., the Muthukulathur Police apprehended the applicant on the basis of his mother's complaint and on the next day they took him to Tiruchy and handed over to the Territorial Army Battalion. Thereafter, the applicant was subject to Summary Court Martial on 2.1.2011 for over-staying leave and losing Identity Card. The charges were framed against the applicant under Section- 39(b) and 54(b) of the Army Act for over-staying the leave and for the loss of Identity Card, respectively. After the examination of the witnesses in the Summary Court Martial, the applicant was asked to make a statement in terms of Army Rules 23(1), (2), (3) and (4). The applicant realised his mistake and accepted his guilt and sought pardon and requested to consider his case sympathetically and he may be retained his service. However, the request of the applicant was not accepted, but the extreme penalty of dismissal of service was imposed by the 3rd respondent. The applicant was graded exemplary, but for the allegations tried in Summary Court Martial. The said conviction and sentence for the aforesaid offences were issued under the signature of N.S. Rao, Officiating Adjutant for Officiating Commandant, the Madras Regimental Centre. The said Officer was well below the rank of Brigade Commander and not competent to issue the impugned proceedings. During the recording of evidence, the depositions were not interpreted and the signatures were not obtained. The applicant preferred a non-statutory petition to the 2nd respondent against the impugned sentence during February, 2011, but it was sent without signature due to inadvertence. The said petition was immediately returned by 2nd respondent as unactioned in its proceedings dated 25.2.2011, and the said petition was not re-submitted to any authorities. However, he had sent a statutory petition dated 22.12.2011 under Section- 164 of Army Act, for just consideration and orders. The 2nd respondent, after getting the said petition, innocuously rejected the application unactioned dated February, 2011, by stating that orders were passed in the statutory petition sent during February, 2011 on 30.11.2011. The said action of the respondents is a clear after-thought and short-circuiting the rule of law. The respondents might have conspired to reject the claim of the applicant and the said conspiracy should be brought to light by piercing the regimental veil of the respondents. The applicant sent a representation on 9.2.2012 to the 2nd respondent marking a copy to 3rd respondent immediately on receipt of the impugned proceedings dated 30.11.2011 received on 31.1.2012. There was no response from the 2nd respondent. The applicant is aggrieved and constrained to approach this Tribunal for quashing the impugned proceedings and to issue necessary directions to the respondents to reinstate the applicant into service with all attendant and consequential benefits. The application may thus be allowed.

  2. The objections raised by the respondents in the Counter would be as follows:-

    The applicant was no doubt enrolled in the Army and was granted leave as stated in the application. For over-staying without sufficient cause and for losing the Identity Card by neglect, he was tried by a Summary Court Martial. The charge-sheet was handed over to the applicant on 28.1.2011 and the Summary Court Martial was held on 2.2.2011. The accused pleaded guilty to both the charges. Apart from that, the trial was conducted and after due compliance of Army Rule-115(2), the Officer holding the trial, found the applicant guilty and he was sentenced to be dismissed from service. The sentence was also promulgated on the same day. The applicant submitted a petition during February, 2011, addressed to GOC-in-C, Southern Command, and the said petition was returned to the applicant on 25.2.2011. Since no petition was received under Army Act Section- 164(2) even after a period of one month, HQ Southern Command, asked to process the case and accordingly the documents were forwarded to HQ ATNK & K Area (DV) vide Madras...

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