IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15484 of 2009 1. NAWLESH KUMAR SHARMA S/O FULENA SHARMA R/O VILL.- GANGHARA, P.S.- SAHPUR, DISTT.- PATNA, BIHAR Versus 1. THE UNION OF INDIA THROUGH COMMISSIONER-CUM-SECRETARY, DEFENCE SERVICE, NEW DELHI 2. COMMISSIONER-CUM-SECRETARY, DEFENCE SERVICE, UNION OF INDIA, NEW DELHI 3. DIRECTOR-GENERAL OF CHIEF (ARMY) UNION OF INDIA, NEW DELHI 4. THE GENERAL OFFICER, COMMANDING-IN-CHIEF WESTERN COMMAND, HEAD QUARTER, WESTERN COMMAND, CHANDI MANDIR CHANDIGARH, PIN- 900475 C/O 56 A.P.O 5. THE COMMANDING OFFICER, Ist BATTALION, THE BIHAR REGIMENT C/O 56, A.P.O.- PIN CODE 910501. MAMUN CANTT. (PATHANCOAT). ----------- 7. 25.01.2010. Heard learned counsel for the petitioner and the Union of India. 2. Petitioner is aggrieved by the order dated 5th March, 2009 passed by the Colonel Commanding Officer (Annexure-2) dismissing him from service on the charge of using insubordinate language to his superior officer, for disobeying a lawful command given to him by his superior officer as also for an act prejudicial to good order and military discipline. 3. Aforesaid dismissal order dated 5th March, 2009, Annexure-2 has also been affirmed in appeal by the General Officer, Commanding in- Chief under orders dated 27th September, 2009 communicated to the petitioner under memo dated 29th September, 2009, Annexure-6. 4. It is submitted on behalf of the petitioner that both the dismissal and the appellate order is required to be set aside by this Court as in the dismissal order the Colonel Commanding Officer found the petitioner guilty of the charges levelled against him but in the - 2 - appellate order the appellate authority found the petitioner to have pleaded guilty of the charges and if he was found guilty of the charges there was no question of his pleading guilty. 5. In order to appreciate the submission this Court directed the counsel for the Union of India to produce the entire records of the Summary Court Martial taken against the petitioner. In compliance of the said order second counter affidavit was filed placing on record the Summary Court Martial proceedings taken against the petitioner, wherefrom it appears that the date of occurrence is 12.2.2009 when petitioner misbehaved with his wife in the Medical Examination Room as also abused and assaulted her. When the officers present in the Medical Examination Room tried to restrain the petitioner he even misbehaved with them and the situation was brought under control by arresting and putting him in solitary confinement. Tentative charge memo dated 14.2.2009 was served on the petitioner. The witnesses including the wife of petitioner were heard on 14.2.2009 when they supported the occurrence. In view of the statement of the witnesses Commanding Officer under letter dated 14.2.2009 directed Maj Parthsarthy Roy to record the evidence on 25.2.2009. On 22.2.2009 petitioner submitted application before the Battalion Commander admitting his guilt with further request that he shall not repeat the mistake in future and be pardoned considering the interest of his two children. The letter is at page 51 of the second counter affidavit. Maj. Partha Sarthy Roy recorded the evidence of witnesses on 25.2.2009. The Summary Court Martial proceedings was directed to be conducted - 3 - on 5th March, 2009 as would appear from the letter dated 2nd March, 2009 at page 54 of the second counter affidavit. On 5th March, 2009 petitioner again accepted his guilt before the Colonel Commanding Officer. Such acceptance of guilt is found at page 58A and 59 of the second counter affidavit. Thus, in the light of the acceptance of guilt by the petitioner the proceeding was concluded on 5th March, 2009 holding him guilty of the charges levelled against him. While holding the petitioner guilty of the charges the Colonel Commanding Officer found the general character of the petitioner during the trial very good, such finding is recorded at page 62 of the second counter affidavit. 6. Learned counsel for the petitioner with reference to the aforesaid observation/finding of the Colonel Commanding Officer that the general character of the petitioner during the trial was very good, the contents of letter dated 22.2.2009 admitting the guilt with promise not to repeat the conduct in future and request for pardon in the interest of his two sons submitted that the punishment of dismissal imposed on the petitioner is too severe for the charges alleged against him as according to the learned counsel besides the present finding of guilt petitioner has never been found guilty of any misconduct which submission was refuted by the Lieutenant Colonel Yuhanan who appeared at my request and submitted that besides the present proceeding petitioner was also held guilty of running away from the forward area. Learned counsel for the petitioner disputes such fact as according to him petitioner has not been held guilty of such misconduct. - 4 - 7. Having heard counsel for the petitioner and the Union of India as also having perused the records of the Summary Court Martial Proceeding including the admission of guilt made by the petitioner under letter dated 22nd February, 2009 addressed to the Battalion Commander as also before the Commanding Officer on 5th March, 2009 there is hardly any scope for me to interfere with the dismissal order, Annexure-2. However, taking into account the genesis of the occurrence i.e. the dispute between the petitioner and his wife as also the contents of the letter dated 22nd March, 2009 addressed to the Battalion Commander and the general character of the petitioner during the trial being very good as recorded by the Commanding Officer himself, I set aside the appellate order dated 27th September, 2009 communicated to the petitioner under memo dated 29th September, 2009, Annexure-6 and call upon the appellate authority to reconsider the memo of appeal of the petitioner and if the appellate authority is satisfied that earlier petitioner was not held guilty for any serious misconduct then to substitute the punishment of dismissal by imposing any other punishment. The appeal of the petitioner be considered and disposed of by the appellate authority as early as possible, in any case within a period of three months from the date of receipt of a copy of this order. 8. This writ application is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)