IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 WP(C).No. 13514 of 2006(H) ---------------------------------------- PETITIONER(S): ------------------------ SUNIL KUMAR P.S., NAIK(OPERATOR), FIELD REGIMENT, THIRUVONAM HOUSE, PANDIKONAM P.O., THIRUVANANTHAPURAM. BY ADV. MR.P.R.SREEJITH RESPONDENT(S): ------------------------- 1. UNION OF INDIA REPRESENTED BY THE DEFENCE SECRETARY, SOUTH BLOCK, NEW DELHI-11. 2. THE CHIEF OF ARMY STAFF, ARMY HEAD QUARTERS, SENA BHAVAN, NEW DELHI-11. 3. THE GENERAL OFFICER COMMANDING-IN-CHIEF, NORTHERN COMMAND, C/O.56 APO. 4. THE COMMANDING OFFICER, 803/80 FIELD REGIMENT, C/O.56 APO. BY ADVS. MR.JOHN VARGHESE, ASSISTANT SG MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/03/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.3514/2006 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE PROCEEDINGS OF THE S.C.M., AGAINST THE PETITIONER. P2:- COPY OF THE MEMORANDUM OF APPEAL DT. 25.7.04 SUBMITTED TO THE 2ND RESPONDENT. P3:- COPY OF THE JUDGMENT IN WPC. NO.26107/04 DT. 7.10.04 OF THIS HONOURABLE COURT. P4:- COPY OF THE ORDER NO.C/07957/DV-3 DT. 4.1.05 OF THE 2ND RESPONDENT. TRUE COPY P.S. TO JUDGE TSS HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.13514 OF 2006 ---------------------------- DATED THIS THE 6TH DAY OF MARCH, 2009 JUDGMENT While the petitioner was working as Naik (Oprator), Field Regiment, 803/80, Noushara, Jammu & Kashmir, he was subjected to Summary Court Marshal (SCM) by the 4th respondent on a charge of disgraceful conduct of an indecent kind. The said Act is an offence falling under Section 46(a) of the Army Act. According to the petitioner, in the summary trial that followed he was ill-advised and misrepresented to plead guilty to the charge stating that any attempt to defend the case would make the issue all the more complicated, thereby bring the wrath of the 4th respondent and invite maximum punishment. According to him, after forcing him to plead guilty by Ext.P1 proceedings, he was found guilty and imposed the punishment of reduction in rank and dismissal from service. Appeal preferred by the petitioner before the 2nd respondent also ended in -2- W.P.(C).13514/2006 dismissal. 2. Petitioner challenges the Summary Court Marshal findings and Ext.P4 appellate order. Learned counsel for the petitioner contended inter alia that the observation of the 2nd respondent in Ext.P4 that Army Rule 23(3) explicitly stated that the statement given by the accused may be given in evidence against him, is not correct and according to him, it is not contemplated under the said Rule. It is also submitted that the charge was not explained to him and that the consequences of pleading guilty were not explained. The pleading guilty was recorded in contravention of Rule 115(2) & (2A) of the Army Rules, 1954. It is further submitted that he cannot be compelled to stand a witness against himself. 3. The petitioner also pleaded that a senior soldier, who wreak vengeance upon him, falsely implicated him on a bogus charge, that the statement of the defacto complainant is unbelievable and is manifestly contradictory and the conviction -3- W.P.(C).13514/2006 on the basis of his statement is therefore unsustainable in law. His grievance is that he was not given reasonable opportunity to defend his case. There was no corroboration of evidence entered by the defacto complainant and there was no eye witness to the incident to support the interested version of the complainant and therefore the finding based on the version of the complainant is unbelievable and is full of contradictions and the same is not sufficient to enter into the finding of conviction and consequential punishment. It is also contended that the procedure followed is incontravention of the Army Act and Rules and therefore the proceedings of the Court Marshal is vitiated. It is further contended that on the question of imposing sentence, the petitioner has met with dual penalty; (a) reduction in rank and (b) dismissal from service. According to him, combination of punishment contemplated under Section 73 of the Army Act can be pressed into service only in cases where major punishment under Clause (d) and (e) to Section 71 is awarded as the first -4- W.P.(C).13514/2006 punishment and that once punishment of reduction in rank is imposed as the first punishment, the second punishment is invalid. It is also submitted that the punishment imposed is too harsh and excessive, considering the gravity of the misconduct alleged and proved. ] 4. Charge against the petitioner is a disgraceful conduct of an indecent kind. Certainly it is a misconduct on the part of the petitioner and the misbehaviour attracts punishment. Imposing punishment of dismissal from service is the punishment that can be imposed upon an incumbent for very serious and grievous charges. While imposing such punishment, the previous service career of the incumbent is also relevant and important. The department has no case that through out in his 8 years and 154 days' service, any complaint regarding misconduct and misbehaviour is noticed. Even going by the evidence disclosed and the charge sheet and the findings entered by the authorities on the basis of such charge sheet, offence proved is “disgraceful -5- W.P.(C).13514/2006 conduct of an indecent kind”. The earlier Act stipulates punishment for offence enumerated in Chapter VI. Severe punishment or lesser punishment in the discretion of the Court Marshal is stipulated for serious offence under Sections 34,35,36, 37 etc. In Chapter VII Section 71(a) to (l) are the punishment listed. The punishment includes reduction to the ranks or to a lower rank or grade etc. of which forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and non- commissioned officers; forfeiture of pay and allowances for a period not exceeding three months; forfeiture of all arrears of pay and allowances and other public money due to him in the case of a person sentenced to censuring or dismissal; stoppage of pay and allowances until any proved loss or damage occasioned by the offence. 5. It is true that the Court Marshal is empowered to award -6- W.P.(C).13514/2006 punishment specified in sections 34 to 68 inclusive of any one of the punishment set out in Section 71 or combination of punishments set out in Section 71, the punishment shall be imposed considering the gravity of the offence. Considering the fact that misconduct alleged is less grave offence, when compared to offences enumerated in Sections 34 to 68, punishment imposed under clause (e) of Section 71 read with clause (f) is too harsh and excessive when compared to the gravity of misconduct alleged. The other fact that the service records of the petitioner discloses that he served Military without any room for any complaint for a period of more than 8 years, is also should have been taken into account for awarding punishment. 6. Considering all these facts, this Court is of the view that imposition of punishment of dismissal from service is harsh and excessive when compared to the gravity of the misconduct alleged. Court Marshal could have limited the imposition of -7- W.P.(C).13514/2006 punishment to clause (f) of Section 71 of the Army Act. In the result, Exts.P1 and P4 are quashed to the extent of imposing 41unishment of dismissal from service. Imposition of sentence of reduction to rank is confirmed. 7. In the circumstances, there will be a direction to the respondents to reinstate the petitioner in service with consequential benefits within a period of two months from the date of receipt of a copy of this judgment. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.