Transferred Application No. 1364 of 2010. Case: Mohan Singh Vs Union of India and Ors.. Armed Forces Tribunal

Case Number:Transferred Application No. 1364 of 2010
Party Name:Mohan Singh Vs Union of India and Ors.
Counsel:For Appellant: A.K. Srivastava, Advocate and For Respondents: Asheesh Agnihotri, Advocate, assisted by Soma John, OIC Legal Cell
Judges:Devi Prasad Singh, J. (Member (J)) and Air Marshal Anil Chopra, Member (A)
Issue:Armed Forces Tribunal Act 2007 - Section 34; Army Act, 1950 - Section 154, 154(1), 156, 164(2), 63, 83, 84; Constitution Of India - Article 14; Uttar Pradesh Protection Of Trees In Rural And Hill Areas Act 1976 - Sections 10, 11, 12, 13, 4, 5
Judgement Date:April 06, 2017
Court:Armed Forces Tribunal
 
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Order:

Devi Prasad Singh, J. (Member (J)), (Regional Bench, Lucknow)

  1. Being aggrieved with the impugned order of punishment dated 28.02.2002 of severe reprimand and denial of the rank of Sub Major and also salary of the said rank w.e.f. 01.08.2000 to 31.08.2002, petitioner preferred a writ petition, bearing No. 1301 of 2004 (SS) in the High Court of Uttaranchal, now Uttarakhand, Nainital, which has been transferred to present Tribunal in pursuance to power conferred by Section 34 of the Armed Forces Tribunal Act, 2007, now registered as T.A. No. 1364 of 2010.

  2. We have heard learned counsel for the petitioner Col (Retd) A.K. Srivastava and learned counsel for the respondents Shri Asheesh Agnihotri, assisted by Maj Soma John, OIC Legal Cell and perused the record.

  3. In brief the petitioner was enrolled in the Indian Army and joined in 7th Bn Garhwal Rifles on 26.06.1976. In 1982 he successfully completed WWA - 24 Course along with SLALOM and GAINT SLALOM Races and was awarded Special Battalion Order and admiration on 21.05.1982. He was also awarded a letter of appreciation, issued by Garhwal Rifles on 08.06.1982, followed by an appraisal letter of the Chief of the Army Staff dated 15.08.1984. The Commanding Officer 7th Bn Garhwal Rifles also appreciated petitioner's work and conduct, vide his letter dated 10.11.1984. Petitioner attained 3rd position in National Ski Championship on 22.05.1986. It is not disputed that the petitioner was also conferred the rank of Naib Subedar on 01.10.1989 and Subedar on 17.03.1993. From 10th October, 1990 to 10th October, 1993, petitioner performed the duty as Instructor at the National Security Guards Training Centre. The function was organized by the Battalion to confer the rank of Sub Major on 01.08.2000. A letter was issued for implementation of substantive cadre on 19.06.2000. Congratulation letter was also sent by Brigadier M.C. Bhandari, AVSM for promotion on 02.07.2000 and thereafter from 01st August, 2000, the petitioner was promoted to the rank of Subedar Major. He was posted to Garhwal Regimental Centre on 26.06.2000. Petitioner completed the Potential Subedar Major Course in Junior Leaders Academy and was promoted to the rank of Subedar Major, vide order dated 19.07.2000. The approved date was 01.08.2000. Copy of approval letter is marked as Annexure No. 10.

  4. In pursuance of Summary Court Martial proceedings, hereinafter referred to as "SCM", by the impugned order dated 28.02.2002 the petitioner was awarded the punishment of severe reprimand and later on he was discharged. The character certificate dated 31.08.2002 annexed to the petition as Annexure No. 21 indicates that the petitioner possessed exemplary conduct while serving the Indian Army. While assailing the impugned order of punishment, it is submitted by the learned counsel for the petitioner that a Court of Inquiry was convened on 14.08.2000 ex-parte, without inviting petitioner to participate in it, though the subject matter involved petitioner's character and reputation, in violation of Rule 180 of the Army Rules, 1954. Summary of evidence commenced on 28.08.2000 and concluded on 02.09.2000. The submission is that since from the material on record no misconduct was borne out, additional Summary of Evidence was recorded between 23.05.2001 to 03.07.2001 by Officer Commanding with recommendation to convene General Court Martial, hereinafter referred to as "GCM" for short, vide its opinion dated 31.10.2000 but no GCM was held.

  5. It is submitted by the learned counsel for the petitioner that the petitioner was treated in the Hospital at Lansdowne 04.01.2002 onwards and in medical case sheet dated 07.01.2002, the rank of petitioner was shown as Subedar Major. After promotion to the rank of Subedar Major petitioner was sent to Kaudia Camp at Kotdwar, District Pauri Garhwal. At Kaudia Camp due to heavy storm more than 100 trees were rooted out. The authorities directed the petitioner to cut those trees through departmental contractor Shri Jagmohan Singh Rawat. Petitioner was charged for cutting of 2 trees of Haldoo, 2 trees of Papari and 3 trees of Eucalyptus, which were cut by him while complying the order, that too under the directions of his superiors, which was recorded in the daily diary maintained by the petitioner. The cutting of the trees was done for repairs of some houses/huts, which were damaged during storm with due permission of Forest Department on the application of the Captain of the Kaudia Camp. The pleading in this regard, contained in Para-17 of the petition has been denied vide Para-11 of the counter affidavit on the ground that the Court of Inquiry was ordered vide Garhwal Rifles Regimental Centre's order dated 14.08.2000, in which it was admitted by the petitioner that no order for cutting of standing trees, which were not affected by the storm, was given to the petitioner by his superiors. The reliance has been placed on the finding recorded by the Court of Inquiry as foundation to award severe reprimand. Further a defence has been set up in Para-12 of the counter affidavit that the petitioner himself applied for voluntary discharge from service in the rank of Subedar Major on account of his domestic problems, vide his application dated 28.02.2002 (Annexure-5), which was accepted by Officer Commanding on 16.04.2002 and accordingly petitioner was discharged w.e.f. 31.08.2002 as Subedar. It has also been submitted that he was not tried by General Court Martial and with petitioner's consent certificate dated 24.02.2002, the General Officer Command decided his disciplinary case summarily in pursuance of power conferred by Section 83 of the Army Act. It has also been submitted by the learned counsel for the respondents that since the petitioner was promoted to the rank of Paid acting Subedar Major on 01.08.2000 and in terms of Army Instruction 84/68 (Annexure-8) he had not completed 28 days continuous service as Paid acting Subedar Major, in accordance with Army Instruction (supra) and on account of break in the period of 28 days, petitioner shall be deemed to have been voluntarily retired with the rank of Subedar. It has further been submitted that the petitioner within 28 days unbroken service period involved himself in disciplinary case on 28.08.2000, when he marched up to his Commanding Officer (Administrative Battalion Commander), for hearing of charge on tentative charge sheet dated 28.08.2000 (Annexure-9), for an offence committed under Section 63 of the Army Act i.e. an act prejudicial to Good Order and Military Discipline. It is also submitted that the punishment of severe reprimand is in accordance with Para-387 of Regulations for the Army (revised), 1987. According to Army Head Quarters letter dated 10.10.1997, there should be no red ink entry, including recordable censure for the JCOs for promotion to the rank of Subedar Major. Accordingly, neither the Part-II Order of promotion was ultimately published nor assumption...

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