SCA/30550/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 30550 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= EX SEPOY / DRIVER / MT / K P REDDY - Petitioner(s) Versus UNION OF INDIA THRO' SECRETARY & 2 - Respondent(s) ========================================================= Appearance : MR SHAILESH C PARIKH for Petitioner(s) : 1, None for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 16/01/2008 SCA/30550/2007 2/5 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) What is challenged in this petition under Article 226 of the Constitution of India is the order dated 5th September 2007 of the Chief of the Army Staff (respondent no.2 herein) rejecting the petitioner's mercy petition dated 7th July 2006 against the finding and sentence of summary Court Martial. 2. The petitioner was charged for using criminal force to his superior officer on 28th September 1996. The charge was levelled against the petitioner under section 40(a) of the Army Act. Charge was that on the above date the petitioner struck his superior, viz. Nb. Subedar, M.R. Roy, with an iron pipe on the head. 3. The petitioner's defence was that the petitioner has put in 15 years of unblemished service from the year 1982. In August 1996, the petitioner's brother in law was murdered at his native place. Therefore, the petitioner had applied for leave. According to the petitioner he came to know that his leave had been sanctioned by the Commanding Officer of the Unit. On 28th September 1996 the Officiating Administrative Officer, Lt.Vasudevan P. asked the petitioner to call SCA/30550/2007 3/5 JUDGMENT Nb.Subedar M.R. Roy. According to the petitioner he told Nb.Subedar M.R. Roy that the latter was called by Lt. Vasudevan. However, while getting up from his seat, Nb.Subedar M.R. Roy fell down and suffered minor injury in his head and arm due to his hitting the edge of the table while falling down. According to the petitioner Nb.Subedar M.R. Roy caught the petitioner by his collar and dragged him to the Administrative Officer and made false complaint that the petitioner had used criminal force and hit him with iron pipe and caused head injury to him. 4. On 28th September 1996 itself, the petitioner was placed under Court Martial by the Commanding Officer, who also informed the local Police Station at Bhuj. It appears that under section 125 of the Army Act, 1950 read with section 41(9) of the Regulations for the Army, 1987, the case was transferred to Court Martial and the Commanding Officer was empowered to try the petitioner by Summary Court Martial. On the basis of the evidence on record of the inquiry, the Court Martial found the petitioner guilty beyond reasonable doubt and held that the petitioner gave number of blows on the head of Nb.Subedar M.R. Roy by iron rod as well as by his hand. The petitioner was sentenced to suffer rigorous SCA/30550/2007 4/5 JUDGMENT imprisonment for two months in civil prison and to be dismissed from service. The petitioner has accordingly been dismissed from service and his mercy petition has also been dismissed by the Army chief of Staff 5. After hearing Mr.Parikh, learned counsel for the petitioner. we do not find any merit in the petition. Therefore, the petition deserves to be dismissed. 6. Even while dismissing the petition, before parting with the matter, we cannot help observing that we have come across several such cases where the concerned employee in Military/ Paramilitary forces applies for leave on the grounds like death or serious illness of a parent or other relative or such other pressing circumstances and on account of refusal of leave and probably more on account of the manner in which the employee's emotions are handled, the concerned employee is not in a position to control his temper and there is a quarrel and fight between the employee and his superior. In the facts of the present case also, it is the case of the Army itself that the petitioner had gone to the complainant asking for leave SCA/30550/2007 5/5 JUDGMENT (on account of the murder of the petitioner's brother in law), leave was not sanctioned, thereupon the petitioner got excited and gave blows with iron rod on the head of the complainant. Such a reaction from the petitioner to any of his superiors or even to his colleagues would not be pardonable, but at the same time we cannot help observing that even where such requests are required to be rejected for administrative reasons, the feelings of the concerned employee, who is already in grief and is undergoing stress, should be handled properly in order to see that such an unpleasant and undesirable behaviour from the employee already under serious stress is averted. We do hope that this feeling of ours is conveyed by the appropriate authority to the concerned officers, who are required to take decisions on such applications and also the officers in the intermediate cadres. 7. A copy of this order shall expeditiously be sent to each of the respondents. (M.S. SHAH, J.) (RAVI R. TRIPATHI, J.) karim