ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

O.A. No. 19 OF 2013

FRIDAY, THE 12TH DAY OF DECEMBER, 2014/21ST AGRAHAYANA, 1936

CORAM:

HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J)

HON'BLE VICE ADMIRAL M.P.MURALIDHARAN,AVSM & BAR, NM, MEMBER (A)

APPLICANT: HAV/CLK SUDHEER EX NO.15361526 N,I.P., AGED 42 YEARS, S/O. SREEDHARAN I.P.EDAYATTU CHALIL HOUSE,KAKKUR P.O., VIA. NANMINDAKOZHIKKODE DISTRICT, KERALA – 673 613.

BY THE PARTY IN PERSON.

versus

RESPONDENTS:

1. UNION OF INDIA, REP. BY ITS SECRETARY MINISTRY OF DEFENCE, SOUTH BLOCK,

NEW DELHI – 110 011.

2. THE CHIEF OF THE ARMY STAFF, COAS'S SECRETARIAT, INTEGRATED HEAD QUARTERS, MINISTRY OF DEFENCE, (ARMY) SOUTH BLOCK, NEW DELHI – 110 011.

3. THE COMMANDANT, THE DOGRA REGIMENT CENTRE FAIZABAD (UP) – 224 001.

4. THE COMMANDING OFFICER, RECORDS THE DOGRA REGIMENT

PIN 900 235, C/O. 56 APO.

BY ADV.SRI.K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL

O.A. No. 19 of 2013 : 2 :

ORDER

VAdm.M.P.Muralidharan, Member (A):

1. This Original Application has been filed by Sudheer,

Ex-Havildar Clerk No. 15361526 essentially against the

punishments awarded to him on 18 July 2008 and 21 June

2011. The applicant has sought reinstatement with all

consequential benefits, including promotion.

2. The applicant was enrolled in the Army on 17

January 1988 as Infantry Soldier (Clerk General duty) in

the Corps of Signals. After basic training, he was posted to

1 Signals Training Centre on 01 June 1989 and was

subsequently transferred to the Dogra Regiment on 16 April

1990. In due course he was promoted to the rank of

Havildar and was posted to the Records, Dogra Regiment on

02 October 2006 and served there upto 31 January 2012.

3. On 07 March 2008 the applicant was sent on

temporary duty to Delhi for collection of medals pertaining

O.A. No. 19 of 2013 : 3 :

to the Dogra Regiment and he returned on 15 March 2008

on completion of the said duty. During the said period, on

12 March 2008, a complaint was received at the Records

from the wife of the applicant that, at about 0400 hours

on 12 March 2008 the applicant was in his home town at

Kunnamangalam, Kerala and had stabbed his father-in-law.

Based on the above, an inquiry was initiated, and

subsequently disciplinary action against the applicant was

initiated and he was awarded 'severe reprimand' (Annexure

A7).

4. About three years later when the applicant was on

annual leave from 25 April 2011 to 21 May 2011, a

complaint was received against the applicant from an Upper

Division Clerk of Records Dogra Regiment, Shri Adarsh

Kumar. Based on the complaint, the applicant was re-called

by telegram from leave to report for duty to carry out

investigations. However, he did not re-join duty till

termination of leave. A Court of Inquiry was subsequently

held, in which the applicant was found guilty of misleading

O.A. No. 19 of 2013 : 4 :

the organisation by giving false facts. He was summarily

tried and was awarded 'severe reprimand' on 21 June 2011

(Annexure A16). This punishment made him ineligible for

extension of service of 2 years which had been granted to

him and the applicant was transferred to Pension

Establishment on 31 Jan 2012 on completion of tenure of

his service under Item III(i) of Rule 13(3) of the Army

Rules after rendering 24 years and 14 days of service.

5. Heard the applicant appeared in person and

Shri. K.M. Jamaludheen for the respondents.

6. The applicant brought out that the applicant's

relationship with his wife had been strained from the year

2006 and she had even filed a petition against him in the

Family Court for maintenance and false criminal cases were

filed against him by his in-laws. He further contended that

his wife was in the habit of making frivolous complaints and

allegations to the Army Authorities, which, in turn, affected

the working conditions of the applicant in the Army. In

O.A. No. 19 of 2013 : 5 :

March 2008, the applicant had been deputed from the

Records Dogra Regiment at Faizabad for collection of

medals at the Ministry of Defence, New Delhi. The

applicant reached Delhi on 08 March 2008, but as it was a

holiday, being a Saturday and next day being Sunday, the

applicant reported to the concerned section on 10th and 11

March 2008, but was told to come on 13 March 2008 for

collection of medals. So he remained in the Unit lines of

Army Headquarters. When he returned to Unit on 15 March

2008 from Delhi his bags and other luggage were checked,

which was when he was informed that they had a message

from his wife about his attempt to stab his father-in-law.

While the applicant explained that he was in Delhi, he was

forced to make some statements and was treated like a

criminal and a Court of Inquiry was initiated. After his

release the applicant put up his grievances to the

Commanding Officer. Since no action was taken he

submitted a further ROG to the Commandant of Dogra

Regiment.

7. The applicant was subsequently charge sheeted

O.A. No. 19 of 2013 : 6 :

under Sections 63 and 39 of the Army Act and tried by the

Commanding Officer. Even though he pleaded not guilty

and produced all material evidence he was awarded 'severe

reprimand' (Annexure A7). The applicant stated that the

trial was prejudiced. A criminal case was filed against the

applicant in his home town to falsely implicate him as an

accused. The applicant brought out that eventually he was

totally acquitted in the criminal case. A copy of the

judgment is placed as Annexure A9.

8. While the applicant had filed a statutory complaint

to the Chief of the Army Staff, it was not accepted by the

Unit authorities and the applicant forwarded the same by

registered post. However, there has been no reply to the

statutory complaint to date.

9. The applicant next contended that he was granted

27 days annual leave from 25 March 2011 to 21 May 2011

and had taken this leave to attend to the court cases

pending against him at his home town, viz. the criminal

O.A. No. 19 of 2013 : 7 :

case and the Family Court case and the Unit authorities

were aware of this. On 08 May 2011 a telegram dated 27

March 2011 was found on the veranda of his mother's

house, indicating that his leave has been cancelled for

conducting an investigation. As per the applicant, though

the telegram had been sent from Faizabad on 27 April

2011, and was received at Calicut on 28 April 2011, it was

delivered only on 08 May 2011 (Annexure A13) due to

lapses on the part of the BSNL. This was mainly due to

incorrect address in the telegram.

10. The applicant replied to his Unit by telegram

stating that since the Court cases against him would come

up for hearing on 10 May 2011 and non-availability of rail

reservation and the distance of his home town from

Faizabad, he be permitted to report to unit after

completion of his planned leave. Since there was no

response from the Unit, he started from his home town on

the earliest availability of reservation and reached Faizabad

on 15 May 2011. On reaching Faizabad, the applicant

O.A. No. 19 of 2013 : 8 :

learnt that the UDC had filed a complaint against him in the

Civil Court and the case was coming up on 16 May 2011.

The complaint was dismissed by the Court as there was no

truth in the case. Accordingly the applicant reported to his

Unit on 22 May 2011 after completing his leave. However,

the Unit authorities initiated action against him and a Court

of Inquiry was convened. The applicant brought out that

without considering any of his contentions, he was tried

and even though he pleaded not guilty, he was awarded

'severe reprimand'.

11. The applicant further contended that the said

punishment tainted his Military service and adversely

affected his further promotion and extension of service.

The applicant also contended that the BSNL authorities

when contacted regarding the telegram had clearly

indicated that the telegram had been delivered late by them

due to incorrect address and lack of suitable telegraph

office near the village of the applicant. (Annexures A17 and

A18).

O.A. No. 19 of 2013 : 9 :

12. It was further brought out that the applicant,

who had been granted two years of extension from 31 Jan

2012 to 31 Jan 2014, was served with a show cause notice

on 25 July 2011 (Annexure A19), wherein only one day was

granted to file reply to the show cause notice, which was

against all norms of natural justice. The applicant submitted

a statutory complaint (Annexure A20) on 17 August 2011

and as there was no response, he submitted a reminder on

02 Jan 2012 since he was due for discharge on 31 Jan

2012. However, the applicant was discharged from service

without considering his statutory complaint, reply to which

he received after six months of his retirement (Annexure

A22 and A23).

13. As per the applicant, he had an unblemished

service till 2008 and the first ever punishment was given to

him on 18 July 2008 and the second punishment was given

on 21 June 2011. Both these in his view were unwarranted.

More so, in the second case where his only mistake was

O.A. No. 19 of 2013 : 10 :

incorrectly stating the distance from his home station to the

duty station. The applicant further contended that the

statutory complaint was not considered based on the

grounds raised by him, but was looked at in a mechanical

manner. He therefore prayed that the punishment awarded

to him be set aside and he be reinstated in service with all

consequential benefits.

14. Mr. K.M. Jamaludheen, learned counsel for the

respondents, brought out that the applicant while on his

temporary duty to Delhi in March 2008 had without

approval, proceeded to his home town and attacked his

father-in-law, the input of which is received from the

applicant's wife. A copy of the First Information Report

lodged by the applicant's father-in-law at Kunnamangalam

Police Station, Kerala had been received by the unit on 14

March 2008 via Fax. Since the applicant was alleged to have

committed a serious offence, that is, attempt to commit

murder of a civilian, the applicant was placed under open

O.A. No. 19 of 2013 : 11 :

arrest from 15th March to 19th March 2008 and close arrest

from 20 March to 15 May 2008.

15. A staff Court of Inquiry and its proceedings were

submitted to Headquarters of MP and C & A Sub Area,

Allahabad on 12 May 2008. The arrest was properly

reported to the competent authority as required by the

Army Act, Sections 102 and 103. The learned counsel

brought out that based on the Court of Inquiry disciplinary

action was initiated against the applicant for being absent

without leave from 10 March 2008 to 13 March 2008 under

Section 39(a) of the Army Act and for an act prejudicial to

good order and military discipline for violating the directions

contained in movement order under Army Act Section 63.

He was awarded 'Severe Reprimand'. The learned counsel

contended that the punishment was not at all linked to or

influenced by the FIR lodged at Kerala on 14 March 2008

and subsequently charge sheeted under Sections 452, 324

O.A. No. 19 of 2013 : 12 :

and 506(ii) of Indian Penal Code in the Court of Judicial

First Class Magistrate, Kunnamangalam, Kozhikode, Kerala.

The learned counsel brought out that in that case, the

applicant was acquitted on 7 December 2011 vide the

court's judgment (Annexure A9) due to hostile prosecution

witnesses and not due to merits of the case.

16. In the second instance, the applicant whilst at his

home town on 27 days' part of annual leave with effect

from 25 April 2011 to 21 May 2011, a complaint against

him was received from Shri Adarsh Kumar, UDC of Records,

the Dogra Regiment stating that his daughter was missing

from the house and the applicant was possibly involved in

the same. Based on the complaint, recall telegram was

sent to the applicant on 27 April 2011 to investigate the

case. However the applicant replied through a telegram

dated 09 May 2011 (Annexure R16) that his criminal case is

under progress and he cannot rejoin the unit before

termination of the leave. Another telegram was sent to the

applicant (Annexure R17) for rejoining duty immediately

O.A. No. 19 of 2013 : 13 :

and to intimate hearing dates promulgated by the Hon'ble

Court. Subsequently a Court of Inquiry was held and the

applicant was blamed for misleading the organisation by

giving false facts in his telegram. As the applicant had

committed an offence under Army Act Section 63, he was

summarily tried and awarded punishment of 'severe

reprimand' on 21 June 2011.

17. The learned counsel further brought out that

the applicant was due for promotion as per seniority in

February 2010 but could not be promoted as he had not

qualified in the Non Commissioned Officer Clerk Course. He

qualified the same in his third and last chance on 15 Jan

2011 and so became eligible for promotion only with effect

from 15 January 2011, which was subject to meeting

Annual Confidential Report and discipline criteria. However

he was found lacking in both these aspects. In the ACRs for

promotion to the rank of Naib Subedar in the last 5 reports

in the rank of Havildar at least three reports should have

been above average and two could be high average.

O.A. No. 19 of 2013 : 14 :

However the applicant had only two 'above average

reports'. Further, in accordance with Army Order 20/1981

an individual should not be involved in disciplinary case in

the Court of Law and since the applicant was involved in a

criminal court case with the First Class Judicial Magistrate

Court, Kozhikode, he was ineligible for further promotion.

18. The learned counsel further brought out that

based on a Screening Board held on 28 February 2010, the

applicant had been granted two year's extension in service

from 17 January 2012 to 16 January 2014. However since

the applicant was subsequently awarded severe reprimand

under Army Act Section 63 on 21 June 2011, he became

ineligible for extension in service. Accordingly his

extension of service was cancelled and discharge order

was issued on completion of terms of engagement for the

rank held by the applicant ie 24 years of service.

19. The learned counsel further pointed out that the

statutory complaint submitted by the applicant for setting

O.A. No. 19 of 2013 : 15 :

aside the punishment awarded to him on 21 June 2011 was

processed in accordance with the rules and forwarded to

the Chief of the Army Staff. But the same was rejected by

the Chief of the Army vide order dated 23 April 2012

(Annexure A23).

20. The learned counsel further brought out that while

the respondents were not aware of the relationship of the

applicant with his wife, the lady had filed a case in the

Family Court at Calicut to grant maintenance allowance to

herself and her children in which she had charged the

applicant for not maintaining his family or providing any

maintenance allowance to them. The petition was allowed

by the Family Court. It was also brought out that the

applicant's petitions for dissolution of marriage and custody

of the first child was rejected by the Family Court. The

learned counsel also brought out that the complaint

regarding the applicant attacking his father-in-law had

been received from his wife and the FIR in the Court in

Kerala had also been filed by the applicant's father-in-law.

O.A. No. 19 of 2013 : 16 :

21. The learned counsel further brought out that

despite all this, the applicant was granted Modified Assured

Career Progression (MACP) with effect from 18 July 2009

and arrears of pay and allowances were credited to his

account. He has also been granted service pension in the

rank of Naib Subedar (MACP) with effect from 01 February

2012 for life. The learned counsel further brought out that

all actions taken against the applicant were fair and justified

and all procedures had been followed. The punishments

awarded to the applicant were in accordance with the laid

down rules and regulations.

22. Heard rival submissions and perused the records.

23. The learned counsel for the respondents had at

the outset, contended that the Tribunal has no jurisdiction

in the matter of summary disposal and trials unless the

punishment of dismissal had been awarded. According to

learned counsel for respondents, the punishment of 'severe

O.A. No. 19 of 2013 : 17 :

reprimand' was a minor punishment so the same could not

be brought within the service matters as defined in Section

3(O) of the Armed Forces Tribunal Act, 2007 and hence the

instant Original Application was not maintainable.

24. The issue is no more res integra as we have

examined the issue in detail in OA.No.215/2013 decided on

21 November 2014 and held that the Armed Forces Tribunal

has jurisdiction to decide an Original Application in which

the punishment of 'severe reprimand' is challenged. The

relevant paragraphs of the order is re-produced below:

“16. In order to consider the aforesaid submission, we have

to examine the relevant provisions of the Act. Section 3(o) of

the Act, which defines 'service matters', is reproduced as

follows:

“3(o) “service matters”, in relation to the persons

subject to the Army Act, 1950 (46 of 1950), the Navy

Act, 1957 (62 of 1957) and the Air Force Act, 1950

(45 of 1950), mean all matters relating to the

conditions of their service and shall include –

(i) remuneration (including allowances), pension and

other retirement benefits;

O.A. No. 19 of 2013 : 18 :

(ii) tenure, including commission, appointment, enrolment,

probation, confirmation, seniority, training, promotion,

reversion, premature retirement, superannuation,

termination of service and penal deductions;

(iii) Summary disposal and trials where the punishment of

dismissal is awarded;

(iv) “any other matter, whatsoever,” but shall not include

matters relating to--

(i)orders issued under section 18 of the Army Act, 1950 (46

of 1950), sub-section (1) of section 15 of the Navy Act,

1957 (62 of 1957) and section 18 of the Air Force Act, 1950

(45 of 1950); and

(ii) transfers and postings including the change of place or

unit on posting whether individually or as a part of unit,

formation or ship in relation to the persons subject to the

Army Act, 1950 (46 of 1950), the Navy Act 1957 (62 of

1957) and Air Force Act 1950 (45 of 1950)

(iii) Leave of any kind;

(iv) Summary Court Martial except where the punishment

is of dismissal or imprisonment for more than three months;”

17. The definition of “service matters” as excerpted

above has virtually three parts. The first part, being the main

definition clause, defines the “service matters” to mean all

matters relating to the conditions of service of the persons

subject to the Army Act, the Navy Act and the Air Force Act. The

O.A. No. 19 of 2013 : 19 :

expression “all matters relating to the conditions of service” is

very comprehensive, which by itself includes every matter

whatsoever relating to the conditions of service unless expressly

excluded. What could not be brought in any way within the

domain of 'the conditions of service' on interpretation, could be

brought within the domain of 'service matters' only by addition

of an 'inclusive clause' to the main definition. It appears that

the Legislature with that intention enacted the second part of the

definition clause in Section 3(o) of the Act in the form of

inclusive clause, which provides for inclusion of the matters

specified in sub clauses (i), (ii), (iii) and (iv) of Section 3(o) also

within the definition of 'service matters'. Obviously the definition

of 'service matters' by addition of the inclusive clause in the

aforesaid manner was an expansion of the definition to include

other matters not technically falling within the category of

conditions of service as defined in the first part of the

definition. Even clause (iv) of Section 3(o), which includes 'any

other matter whatsoever' has made the definition of 'service

matters' more comprehensive. The third part of the definition

being in the form of “exclusion clause” provides for exclusion

of the following matters from the purview of the “service

matters.”

(i)orders issued under section 18 of the Army Act, 1950 (46

of 1950), sub-section (1) of section 15 of the Navy Act,

1957 (62 of 1957) and section 18 of the Air Force Act, 1950

(45 of 1950); and

(ii) transfers and postings including the change of place or

unit on posting whether individually or as a part of unit,

formation or ship in relation to the persons subject to the

O.A. No. 19 of 2013 : 20 :

Army Act, 1950 (46 of 1950), the Navy Act 1957 (62 of

1957) and Air Force Act 1950 (45 of 1950)

(iii) Leave of any kind;

(iv) Summary Court Martial except where the punishment

is of dismissal or imprisonment for more than three months;”

18. What is, therefore, apparent is that the matters

which are not expressly excluded by the aforesaid “exclusion

clause” shall be deemed to have been brought within the

domain of “service matters” as defined in Section 3(o). The

punishment of admonition imposed in any summary trial and

disposal, which has not been expressly excluded from the

definition of ”service matters”, can be brought within the

domain of the definition with the aid of the comprehensive sub-

clause (iv) of section 3(o), which provides for inclusion of any

other matter whatsoever. It is true that summary disposal and

trials, where the punishment of dismissal is awarded, has also

been brought within the meaning of ”service matters”, by virtue

of sub clause (iii) of Section 3(o). But this specific provision

cannot be taken as a ground to hold that other punishments

awarded in any summary disposal and trial have been excluded,

especially when the third part of the definition i.e. the exclusion

clause is silent on this point. In absence of any such express

exclusion clause, there cannot be any presumption of

exclusion, only on the basis of the aforesaid provision of sub-

clause (iii) of Section 3(o). So the punishments, other than

dismissal, awarded in any summary disposal and trial,

apparently fall within the domain of “any other matters

whatsoever” contained in sub-clause (iv) of Section 3(o).

O.A. No. 19 of 2013 : 21 :

19. In the matter of 'severe reprimand', which is almost

equal to the punishment of 'admonition', the Hon'ble High Court

of Judicature at Allahabad, Lucknow Bench, had occasion to

consider the question of jurisdiction of the Armed Forces Tribunal

while deciding Writ Petition No. 8051 of 1989, Major

Kunwar Ambreshwar Singh v. The Union of India, which

was decided on 20th February, 2014. The Division Bench held

that the punishment of 'severe reprimand' falls within the

category of 'service matters' as defined by Section 3(o) of the

Act. This proposition was laid down on the ground that the

aforesaid penalty would fall within the expression “any other

matters whatsoever” occurring in sub clause (iv) of Section (o)

of the Act. It was argued on behalf of the respondents before

the Allahabad High Court that the punishment of 'admonition'

had not been included in any of the categories specified in sub

clauses (i), (ii) and (iii) of Section 3(o) of the Act, so such

punishment would fall within the category of “any other matters

whatsoever” as defined in sub clause (iv) of the said Section

3(o). The Division Bench of Allahabad High Court, while

interpreting the meaning of the expression “any other matters

whatsoever” held that the punishment of 'severe reprimand' also

come within the category of “any other matters whatsoever”.

20. The learned counsel for the respondents referred to

the order dated 1st December, 2010, rendered by the Jaipur

Bench of the Armed Forces Tribunal, in O.A.No. 164 of 2010,

S.S. Rathore v. Union of India & others and contended

that the Jaipur Bench held that summary disposal and trial

matters could fall within the category of service matters if

punishment of dismissal was awarded. In our view, after the

decision of the Division Bench of the Allahabad High Court in

O.A. No. 19 of 2013 : 22 :

the aforesaid matter, the order of the Jaipur Bench is of no help

to the respondents, especially when the Division Bench of the

Allahabad High Court had proceeded to decide the question of

jurisdiction in that matter due to the reason that the Principal

Bench of the Armed Forces Tribunal, New Delhi had passed the

order that the Tribunal had no jurisdiction, which was questioned

before the High Court. The Division Bench quashed the order of

the Tribunal and held as aforesaid. We, therefore, hold that the

Armed Forces Tribunal has jurisdiction to decide the instant

Original Application.”

25. It is not disputed that the applicant had an

uneventful military career despite the fact that he had been

facing problems in his married life from 2006. However

the punishments awarded to him in July 2008 and June

2011 affected his military career and they have been

challenged. Therefore we proceed to examine both these

issues which form the crux of this Original Application.

26. In the incident of July 2008, it is not disputed

that the applicant was deputed on temporary duty to New

Delhi from Faizabad for collection of medals on behalf of

the Regiment on 07 March 2008 and he returned to Unit on

completion of the temporary duty on 15 March 2008. The

O.A. No. 19 of 2013 : 23 :

reported presence of the applicant at the residence of his

father-in-law at Kunnamangalam, Kerala on 12 March

2008 where he was not supposed to be in accordance with

the orders given to him by the Unit is what resulted in his

trial in July 2008.

27. The applicant in the O.A as well as in the course

of arguments had denied his presence in Kerala during the

said period stating that he was at New Delhi and the whole

case was fabricated by his wife and in-laws. It is however

observed from the Court of Inquiry report convened to

investigate the incident that while the applicant had

reached Delhi on 08 March 2008, along with Sepoy Ajay

Dhrangal who was deputed with him, he did not report to

the Unit of the Regiment he was supposed to report to and

there were conflicting statements between the two of their

place of stay. Ext.22 of the COI is a statement of the

applicant, in which he had indicated that he had taken

evening flight to Bangalore on 10 March 2008 and had

O.A. No. 19 of 2013 : 24 :

reached his home town on 11 March 2008 and had taken a

lodge. The statement also indicates that the applicant

returned to Bangalore on the evening of 12 March 2008 and

took a morning flight on 13 March from Bangalore to New

Delhi. It is pertinent that the statement also brings out

that the stabbing case against him was a false case made

by his father-in-law and highlights the marital problems

of the applicant. The findings of the inquiry reveal that this

statement was made to the CRO by the applicant after he

had confessed the same to him. The report also indicates

that the initial statement had been made by the applicant

in the presence of Captain Yuvraj Singh and Sub Maj KS

Dhiman. These facts were testified by Captain Yuvraj Singh

to the COI and the applicant who was given a chance to

cross examine in accordance with Army Rule 180 declined

to do so. It is also noteworthy that during the COI the

applicant made an additional statement. The statement

being relevant is re-produced below:

“ I have sufficient proof of my stay in Delhi. On 15

March evening I gave Lt Col M. Rajendran the

statement that you have read out as it may help

O.A. No. 19 of 2013 : 25 :

me get my divorce from Smt MA Anusree. I have

full faith in myself and my proof of stay in Delhi.

No one can convict me on just my statement that I

gave in the evening of 15 Mar 08 in the office of the

Adm offr in which I accepted that I had gone to

Kerala using a flight to threaten Shri M Appu. My

correct statement is that what I gave the Adm offr

in the morning of 15 March 08”

28. The COI was able to establish that the applicant

had drawn a sum of Rs.20,000/- at Delhi and found that

circumstantial evidence independent of the statement,

pointed to the applicant having gone to Kerala. Claims of

the applicant regarding his presence at the Medal Collection

Centre on 11 March 2008 and duration of stay at Aramgah

at Delhi have been disputed by the units (Annexures R8 and

R10). It is evident that the applicant in view of the

criminal case against him was trying to establish proof that

he stayed in Delhi but had confessed the truth of his having

gone to Kerala to his Commanding Officer. It is pertinent to

note that the criminal case against the applicant was set

aside not on merits but as the prosecution witnesses had

turned hostile (Annexure A9).

O.A. No. 19 of 2013 : 26 :

29. It is observed that the applicant was summarily

tried by the Commanding Officer on two charges, the first

under Army Act Section 39 (a) for absenting himself

without leave and the second under Army Act section 63

for an act prejudicial to good order and military discipline.

While the applicant pleaded not guilty the Commanding

Officer found him guilty of both charges and awarded the

punishment of 'severe reprimand'. The charges were based

on improper absence and in our view COI was able to

establish the same. It is also observed that the COI and

subsequent summary trial was conducted in accordance

with provisions of Army Act and rules and regulations. We

do not find any reason to set aside the punishment

awarded.

30. While the applicant had stated that he had

submitted a statutory appeal against his punishment in

the year 2008 (Annexure A10), the respondents have

denied receiving any such appeal. We do not find any

reason for the respondents to deny the same if they had

O.A. No. 19 of 2013 : 27 :

actually received it or for not considering his statutory

appeal. This is especially so in view of the fact that the

statutory appeal filed by the applicant after the second

incident was examined by the Chief of the Army Staff.

Further, no appeal has been made by the applicant in the

statutory appeal of 2011, for setting aside his punishment

of 2008 or of his earlier statutory appeal not being

responded to. It would have been logical for him to do so

then, if he had actually preferred an appeal, but cannot

raise the same at this stage, in our view. It is apparent

that he is raising the issue now only as the criminal case

against him has been closed, but as observed it was not on

merits of the case.

31. As seen from records, the applicant did not have

any issues in the Unit till he failed to respond to a recall

telegram sent to him in April 2011. A Court of Inquiry

investigated the circumstances under which the applicant

had failed to report for duty despite a recall telegram

being sent to him. The Court in its findings came to the

O.A. No. 19 of 2013 : 28 :

conclusion that the applicant overstayed his leave wilfully.

32. It is observed that the procedures of convening of

the Court of Inquiry and subsequent conduct of summary

trial per se have been in accordance with the provisions of

Army Act, rules and regulations. We would however like

to examine the charge on which the applicant was found

guilty. The applicant was charged under Army Act Section

63 for an act prejudicial to good order and military

discipline and summarily tried. The charge being relevant is

re-produced below:

“ Army Act Section 63 an act prejudicial to good

order and military discipline, in that he, at

Kakkur, native place of the indl. On 09 May 2011,

initiated a telegram to the Commanding Officer,

Records, the Dogra Regiment in response to

latter's telegram dated 27 Apr 2011 giving

incorrect facts such as date of receipt of

telegram as 08 May 2011 instead of 28 Apr

2011, distance from duty station as 4000 Kms

instead of 2890 Kms and asking for further

orders without giving the changed

address/contact number etc. in order to mislead

the organisation.”

O.A. No. 19 of 2013 : 29 :

33. The applicant had been charged with performing

an act prejudicial to good order and military discipline, in

that he gave incorrect facts such as date of receipt of

telegram, the distance of duty station from his home town

and also for not giving changed address/contact number to

mislead the organisation. It is observed that the applicant

based on the tentative charge sheet given to him had

requested that the detail be sought from the telegraph

office as to the exact date of delivery and to whom it had

been handed over. He has further stated that the distance

from his house had been put as approximate and not as

exact.

34. As regards the date of delivery of the telegram,

the applicant has placed at Annexure A18 the response he

received from the BSNL on 08 July 2011 regarding his

telegram. The office of the Divisional Engineer, Telecom,

Calicut has indicated that the telegram was received at the

office on 28 April 2011 and was dispatched on the same

date. It is further stated that since there was no

O.A. No. 19 of 2013 : 30 :

messenger service such telegrams are dispatched by

ordinary post through postal service and since the address

was not clear and only the name of the applicant and

village was there, it was difficult to deliver and hence

delivery of the telegram might have delayed. The

respondents, on the other hand, have submitted that the

clarification from BSNL Department does not indicate the

date of delivery and the address furnished by the applicant

while going on leave had been given in the telegram.

Further they have contended that the letter from BSNL has

been produced by the applicant and not by the

Organisation. The Unit, if they so desired, could have got

details as to the exact delivery of the telegram but there is

nothing on record to show so.

35. In our view, since no specific date of delivery has

been indicated by the Telegraph Department and they have

also indicated that it is sent by ordinary post since there

was no telegraph office nearby, there is nothing on record

to disbelieve the statement of the applicant that he received

O.A. No. 19 of 2013 : 31 :

the telegram only on 08 May, 2011. The benefit of doubt

in this case should go to the applicant. Further, in our view,

a person may not know the exact distance from his home

town to the duty station especially when it is virtually

stretched across the length of the country. Therefore, in

our view, benefit of doubt is due to the applicant even in

this regard. As regards not giving correct address whilst on

leave, it is observed from the leave certificate at Annexure

A12 that only village, post office and telegraph office have

been recorded in the leave address other than the district

and State. There are no details of the house or the street

on which the applicant is staying. Therefore delays in

delivery as also indicated by the BSNL at Annexure A18

was possible. In our view, it was equally incumbent on his

Unit to have more specifics recorded in the leave address

of the applicant prior to his being sent on leave.

36. The Court of Inquiry has established that the

applicant reached Faziabad well before his due date of

reporting and has opined he willfully stayed away from the

O.A. No. 19 of 2013 : 32 :

Unit. The charge against the applicant is however not in

this regard. As brought out, the applicant has been

essentially charged for giving wrong facts regarding date of

receipt of telegram, distance between home and duty

station and giving incorrect contact details. As analysed by

us earlier, in all these issues the charges have not been

proved beyond reasonable doubt and therefore benefit

should go to the applicant. While we certainly do not

appreciate the response/behaviour of the applicant of not

reporting to his Unit despite being at Faizabad and therefore

wilfully staying away, he has not been charged so.

Therefore the punishment of 'severe reprimand' awarded to

the applicant by the Commanding Officer on 21 June 2011

is quashed.

37. As regards the applicant's claim for reinstatement

and promotion, since we do not have all records we would

not like to give our views on the issue and it is upto

respondents to examine the same de novo taking into

consideration that the punishment awarded to the

O.A. No. 19 of 2013 : 33 :

applicant on 21 June 2011 has been set aside.

38. The contention of the applicant that reasonable

time was not given to reply to the show cause notice issued

to him (Annexure A19) has much merit as only 24 hours

were given. Such urgency was unwarranted as the

applicant's existing tenure was completing only on 31

January 2012 and the reason why he became ineligible for

extension was the punishment awarded to him on 21 June

2011. However we would also like to add that the

applicant did not raise this issue in the statutory appeal he

submitted to the Chief of the Army Staff and therefore

agitating the same at this late stage is frivolous, in our

view.

39. In view of the above, the Original Application is

partly allowed and the punishment awarded to the applicant

on 21 June 2011 (Annexure A16) is quashed. The

respondents are directed to reconsider the case of the

applicant for promotion in accordance with rules and

O.A. No. 19 of 2013 : 34 :

regulations without taking into consideration the

punishment of 2011. If meriting selection, the applicant is

to be given notional seniority from the date he would have

been due for promotion and reinstated to serve till

superannuation/tenure permissible as per that rank.

However he will not be entitled for backwages on the

principle of 'no work no pay' as held by the Hon'ble Apex

Court in Union of India vs. B.M.Jha, (2007) 11 SCC

632. The pension and other retiral benefits of the applicant

be revised accordingly. The respondents are further directed

to carry out the exercise and issue suitable speaking order

to the applicant within a period of four months from the

date of receipt of a copy of this order.

40. There will be no order as to costs.

41. Issue free copy of this order to both sides.

Sd/- Sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J) (pto)

O.A. No. 19 of 2013 : 35 :

42. Mr.K.M.Jamaludheen appearing for the

respondents prays for leave to appeal to the Supreme

Court. We have already granted a leave in another matter

with regard to the jurisdiction of the Tribunal, therefore, we

do not consider it proper to frame the same issue and

grant leave.

43. No other point of law of general public

importance is involved in the matter, therefore leave prayed

for is refused.

Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI,

MEMBER (A) MEMBER (J)an.

(true copy)

Prl.Pvt.Secretary