O.A. No. 122 of 2011. Case: Sanjay Kumar Verma Vs Union of India and Ors.. Armed Forces Tribunal
|Case Number:||O.A. No. 122 of 2011|
|Party Name:||Sanjay Kumar Verma Vs Union of India and Ors.|
|Counsel:||For Appellant: K.K.S. Bisht, Advocate and For Respondents: G.S. Sikarwar, C.G.S.C|
|Judges:||D.P. Singh, J. (Member (J)) and Air Marshal Anil Chopra, Member (Ad.)|
|Issue:||Armed Forces Tribunal Act 2007 - Section 14; Army Act, 1950 - Sections 106, 120, 120(3), 135, 139, 139(1), 142(4), 161(2), 162, 163, 164, 169, 179, 182, 183, 3(i), 3(ix), 3(xxiii), 38, 39(a), 39(b), 48, 63, 80, 83, 84, 85, 90(a), 91(a), 92; Constitution Of India - Article 14|
|Judgement Date:||February 28, 2017|
|Court:||Armed Forces Tribunal|
D.P. Singh, J. (Member (J)), (Regional Bench, Lucknow)
Present O.A. has been preferred under section 14 of the Armed Forces Tribunal Act, 2007 (In short the Act'), being aggrieved by the order of dismissal dated 19.03.2007, the impugned discharge certificate dated 27.05.2009 and the order rejecting the appeal of the Applicant dated 27.01.2011
Shorn of unnecessary details, the facts of the case are that the Applicant was enrolled in the Indian Army as Soldier (Barber) on 24.07.1998 and assigned to Army Medical Corps. He was granted casual leave for 14 days with effect from 04.08.2006 to 13.08.2006 for tending his ailing wife residing at his native place i.e. village Deval District Ghazipur. The Applicant arrived at his village on 05.08.2006. According to the averments, since wife of the Applicant was seriously ill, he had to overstay the leave and reported for duty at his Unit i.e. 4003 Field Ambulance on 27.11.2006, where he was advised to report to Administrative Battalion AMC Centre and College, Lucknow. Accordingly, the Applicant reported to Administrative Battalion aforesaid. The Applicant was attached to Administrative Battalion AMC Centre and College Lucknow in pursuance of Army order 7 of 2000 read with paragraph 381 of the Regulations for the Army 1987 Vol. 1, Revised Edition. It is alleged that the Applicant was served with a copy of summary of evidence and tentative charge-sheet on 28.02.2007. Vide letter dated 17.03.2007, the applicant was informed that he would be brought before trial by Summary Court Martial to be held on 19 March at 1100h. The proceeding of Summary Court martial was convened on 19.03.2007 at 11 am and consequently, was dismissed from service and relieved immediately. On 10/11.08.2010, the applicant lost his documents which included document pertaining to his dismissal from service and consequently, he lodged a FIR at Kotwali Kaiserbagh Lucknow. Thereafter on 21.08.2010, the Applicant moved an Application to OIC Records Lucknow for supply of documents under the Right to Information Act, 2005. The documents demanded by the Applicant were forwarded to him on 16.09.2010 (except summary of evidence and tentative charge-sheet) by the AMC records which were received by him on 20.09.2010. The statutory appeal under section 164 of the Army Act 1950 preferred by the Applicant on 11.10.2010 was rejected by GOC Central Command Lucknow on 27.01.2011.
We have heard learned counsel for the Applicant as also learned counsel for the respondents and have also gone through the materials on record.
While assailing the impugned orders, the learned counsel for the Applicant submits that during SCM proceeding, the expression 'pleaded guilty' was recorded in contravention of Army Rule 54 without Applicant's consent, and that arraignment of charges has not been done in accordance with the procedure provided by Army Rule 48. It is further submitted that the document containing expression 'pleaded guilty' does not bear signature of the Applicant which goes to show that it was done without the consent of the Applicant. The comment of Reviewing officer, it is also submitted, is not in conformity with section 162 of the Army Act and the summary of evidence has been recorded in utter disregard of Army Rule 23. It is further submitted that the friend of accused, Lt. N.K. Tripathi has not provided any assistance and further that the charges were not framed in accordance with Army Rules 30 and 31. Learned counsel for the Applicant further submits that the respondents themselves admitted that the Applicant's character has been exemplary and hence he cannot be held to be habitual offender of overstaying the leave in order to warrant major penalty of dismissal from service without recording the genuineness of Applicant's overstaying the leave.
Per contra, learned counsel for the respondents vehemently defended the impugned orders submitting that the Applicant overstayed the leave without reasonable cause and further that he was a habitual offender on this count. Hence he has been rightly dismissed from service upon voluntarily pleading guilty attended with further contention that he had apologised and pleaded to be spared.
Summary of evidence
Summary of evidence is recorded under Army Rule 23. According to learned counsel for the Applicant, the summary of evidence was recorded in his absence though it appears that since the Applicant has been punished from SCM proceedings and accordingly, court of inquiry could have been held but record shows that SCM was held. For the sake of convenience, Rule 23 of the Army Rules which deals with the procedure for taking down summary of evidence is being reproduced below.
"23. Procedure for taking down the summary of evidence. - (1) Where the case is adjourned for the purpose of having the evidence reduced to writing, at the adjourned hearing evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs.
(2) The accused may put in cross-examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added to the evidence recorded.
(3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded, the accused will be asked; "Do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence." Any statement thereupon made by the accused shall be taken down and read over to him, but he will not be cross-examined upon it. The accused may then call his witnesses, including if he so desires, any witnesses as to character.
(4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness or accused, as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in a language which he understands.
(5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing), be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence.
(6) Any witness who is not subject to military law may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall be in the form provided in Appendix III.
The adjourned hearing for the purpose of reducing the evidence to writing should if possible be held on the same day as the investigation. The CO may direct another officer to take down the evidence, but an officer who has given material evidence at the investigation must not be appointed for this purpose. He should be an officer of some experience and with a good knowledge of the vernacular. The adjutant or the accused's squadron or company commander, should usually be detailed (see also note to AR 43). The record of evidence under this rule is called 'the summary of evidence' The summary of evidence can be ordered only by the CO of the accused. See AR 22(3)(c). When it is recorded under the orders of an officer other than the accused's CO, summary disposal of a charge under AA.ss. 83, 84 or 85 or the trial of the offender by GCM or DCM on the basis of such a summary of evidence may render the proceedings invalid.
Summary of evidence cannot be taken on oath or affirmation.
The accused cannot claim to be represented by counsel at the taking of summary of evidence.
The evidence (so far as it is relevant and admissible) of every witness who gave evidence before the CO must be taken down unless good reason renders if not reasonably practicable to call him. The evidence of witnesses who did not appear before the CO may also be taken for either prosecution or defence, so long as it appears to be relevant. In reducing the evidence to writing immaterial statements may be omitted and all hearsay and irrelevant matter should be excluded.
The accused must be allowed to put any reasonable question to a witness, and especially to put questions respecting any variance between the evidence taken down and that given before the CO. If the accused declines to cross-examine any witness the fact should accordingly be stated.
The formal caution provided for in sub-rule (3) must be given as soon as the evidence for the prosecution is closed. If it is necessary to take additional summary, the accused must again be formally cautioned before he makes any further statement. The fact that he was duly cautioned should be recorded in the summary. It is advisable to have an independent witness
THE ARMY RULES, 1954 WITH NOTES
The accused may call witnesses on his behalf, and their evidence will be taken down and included in the summary; but he is not bound to call a witness because such witness gave evidence before the CO.
The certificate referred to in sub-rule (5) can conveniently be written below the signature of the absent witness on his written statement or abstract of evidence.
In many cases, the provisions of sub rule (5) will effect a saving of time and expense, e.g., where a civilian witness is required to prove some fact not really in dispute. Such witness must, however, attend in...
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