IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9060 of 2010 NAWLESH KUMAR SHARMA, S/O FULENA SHARMA, R/O VILLAGE GANGHARA, P.S. SAHPUR, DISTRICT PATNA (BIHAR). --------- Petitioner Versus 1. THE UNION OF INDIA THROUGH COMMISSIONER CUM SECRETARY DEFENCE SERVICE, NEW DELHI. 2. THE COMMISSIONER CUM SECRETARY, DEFENCE SERVICE, UNION OF INDIA, NEW DELHI. 3. THE 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- 900457,C/O 56A.P.O. 5. THE COMMANDING OFFICER, 1ST BATTILIAN, THE BIHAR REGIMENT, C/O 56A, P.O. PIN CODE 910501,MUMUN CANTT. (PATNA COAT). ----------- Respondents ----------- For the Petitioner :- Mr. Shivajee Pandey, Sr. Adv. Mr. Satyendra Kumar, Adv. For the Respondents :- Mr. Shiv Kumar, (C.G.C.) ----------- 4 6.5.2011 Heard Mr. Shivajee Pandey, learned senior counsel, appearing on behalf of the petitioner and counsel for the Respondents. Assailing the order dated 5.3.2009 and 30.4.2010, Mr. Pandey would contend that the impugned order, affirming the order of punishment of dismissal of the petitioner from service, would be in fact in teeth of the observations made by this Court in the order dated 25.1.2010 in CWJC No. 15484 of 2009. Expanding his submissions on the aforementioned issue, Mr. Pandey would further contend that this Court on an earlier occasion, while considering the nature of the impugned order dated 5.3.2009 and the 2 appellate order dated 29th September, 2009, was of the considered view that if the misconduct alleged against the petitioner was confined only as with regard to his misbehavior with his wife, the order of dismissal would not be warranted. Based on this premise he is of the view that earlier order of this Court dated 25.1.2010 in C.W.J.C. No. 15484 of 2009 while quashing of the order dated 29th September, 2009 and remitting the matter back to the appellate authority did not give liberty to the REspondents to once again inflict punishment of dismissal of the petitioner from service. He has thus submitted that the impugned order passed on 30.3.2010 as communicated in the letter dated 30.4.2010 reiterating the order of dismissal of the petitioner from service is unsustainable both on fact and in law. In the considered opinion of this Court, the aforementioned submissions have been noted only for its being rejected. From the order dated 5.3.2009, which was also challenged by the petitioner in the earlier writ application, CWJC No. 15484 of 2009, it would be clear that the petitioner was 3 subjected to a proceeding on three specific charges, namely, (i) Using insubordinate language for his superior officer; (ii) Disobeying a lawful command given by his superior officer and; (iii) An act prejudicial to good order and military discipline. It would thus become very clear that even if the wife beating by the petitioner in the public view could be confined to an act prejudicial to good order and military discipline, still the petitioner had two more charges namely using insubordinate language to his superior officer and disobey of lawful command given by his superior officer. The order of punishment of dismissal in fact having based on all these three grounds, this Court would find it difficult to accept the submission of learned counsel for the petitioner that the order of this Court dated 25.1.2010 was meant to review the order of punishment by taking into account the alleged misconduct of wife beating. To that extent, this Court would not be in a position to 4 accept the submission of Mr. Pandey that the last four lines of paragraph no.6 were based on misrepresentation made by the Lieutenant Colonel Yuhanan, who was personally present in Court on 25.1.2010 and had explained that apart from the charges of wife beating against the petitioner, there were also serious charge of misconduct against the petitioner. It is in this backdrop that paragraph no.7 of the earlier order of this Court dated 25.1.2010 in C.W.J.C. No. 15484 of 2009 has to be understood wherein it was held as follows:- “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 5 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.” (underlining for emphasis) It thus becomes clear that this Court, therefore, had left the entire matter open for being decided afresh by the appellate authority and it was for the appellate authority to decide whether the petitioner was earlier held guilty for any serious misconduct apart from the wife beating. From perusal of the order dated 30.3.2010, it is clear that apart from the 6 charge against the petitioner being of inflicting cruelty to his wife, there were also charges of blatant deliberate disobedience of the order of his superior authority. Thus, it cannot be said that the earlier order of dismissal of service was based only on the ground of the charge of wife beating by the petitioner in the public view. Indiscipline in any form of service would be wholly intolerable but, in no event the same can be even imagined muchless condoned in a case of service in Armed Force. The charge-sheet, which has been annexed by the petitioner to this writ application, in fact, gives details of such disobedience, which reads as follows:- “First Charge AA SEC 63 AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE In that he, at Mamun Cantt, on 12 Feb 09 at 1510 hrs., at unit MI Room used criminal force against his wife Smt Babita Devi, by beating her mercilessly, thus causing swelling on the back of her head and resulting in losing her consciousness, which is contrary to good order and military discipline. Second Charge SEC 40(c) USING INSUBORDINATE LANGUAGE TO HIS SUPERIOR 7 OFFER in that he, at Mamun Cantt, on 12 Feb 09 at 1515 hrs, said to JC-558974M Sub Maj Arun Kumar Pandey of the same Regiment, “You were going on discharge but stayed back to spoil the atmosphere of the unit. Even to urinate you take permission from offrs. You have instigated my wife against me. Go away, I don’t want to see any offr or JCO” or words to that effect. Third Charge AA SEC 40(c) USING INSUBORDINATE LANGUAGE TO HIS SUPERIOR OFFICER in that he, at Mamun Cantt, on 12 Feb 09 at 1600 hrs, said to IC-67686Y Capt Punarnaba Chakrabarti. Adjutant of the same Regiment, “Bloody out cast, where are my discharge papers, have you sold them. You can hang by my penis, I don’t care and don’t want to talk to you” or words to that effect. Fourth Charge AA SEC 41(2) DISOBEYING A LAWFUL COMMAND GIVEN BY His SUPERIOR OFFICER in that he, at Mamun Cantt on 13 Feb 09 at 2000 hrs, when ordered by No 4274851K Nk S K Samal of the same Regiment to eat his food, did not do so, when offered food by No 4286414W Sep Krishna Prasad.” Out of the aforementioned four charges, only one charge was as with regard to wife beating by the petitioner and, in fact, three 8 of them related to disobedience of the command of the superior authority by citing the specific instances of the incident taking place on 12.2.2009 and 13.2.2009. A Jawan or an officer in the Armed Force is not expected to question the wisdom of his superior officer as the same would itself amount to act indiscipline. The manner in which the petitioner is said to have behaved with his superior officer, namely, against Captain Punarnaba Chakrabarti, Adjutant of the same Regiment as also against Sub Major Arun Kumar Pandey would only go to show that the petitioner was a wholly indisciplined person and unfit to be retained in Armed Force. Whatever may be said of the incident of 12.2.2009 regarding disturb stage of mind of the petitioner, his repetition of act of indiscipline again on 13.2.2009 by also defying the orders of Nayak S.K. Samal of the same Regiment will by itself go to show that the petitioner was habituated in misbehaving with his superior officers and was repeatedly indulging in acts of indiscipline. As a matter of fact from the aforesaid underlined portion of order of this Court dated 25.1.2000 also remitting the matter 9 back to the appellate authority it would be clear that liberty was given to pass any order of punishment if there be any other serious charge of misconduct against the petitioner. Thus he could also be subjected to an order of dismissal. This Court thus would not be in a position to read in the earlier order dated 25.1.2010 to mean that while remitting the back this Court had directed the appellate authority for inflicting any other punishment except dismissal of the petitioner from service. Thus, in the considered opinion of this Court, the impugned order of punishment on remand does not suffer from any error. The appellate authority has correctly passed the order of punishment of dismissal from service of the petitioner, specially when this Court had also not interfered with the punishment inflicted by the disciplinary authority in the earlier round of writ application filed by him. That being so, this application is wholly misconceived and is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)