CIVIL WRIT PETITION NO.10139 OF 2004 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 23, 2011 No.734578 `S' CPL: Prasad J. .....Petitioner VERSUS Union of India and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Rajinder Kumar, Advocate, for the petitioner. Mr. Ram Chander, Advocate, for the respondents. **** RANJIT SINGH, J. This writ petition has travelled back to this Court, though earlier it was transferred to Armed Forces Tribunal vide order dated 8.10.2010 on an application moved by the petitioner. The writ petition has been returned back to this Court as the same is not within the cognizance of Armed Forces Tribunal Act, 2007. The writ petition, therefore, has now come up for hearing. This writ petition was earlier admitted on 30.7.2004 and has now been listed in motion hearing on being referred back by the Armed Forces Tribunal. With the concurrence of parties, the writ CIVIL WRIT PETITION NO.10139 OF 2004 :{ 2 }: petition is taken up for final disposal. The petitioner was enrolled in the Air Force on 10.7.1994. On completion of his training, he was posted to 5 Wing, Air Force. Later, he was transferred to 3 Sqn Air Force, where he claims to have served with honesty and devotion. On 17.5.2003, the petitioner was suddenly woken up from sleep by Junior Warrant Officer (JWO) S.S.Chahal and Sergeant Sharma. The petitioner was directed to board the vehicle parked outside his billet for unloading of armaments from Ambala Cantt. Railway Station. The petitioner at that time was wearing west and shorts. The petitioner states that he was not allowed to put on proper dress/uniform. Obeying JWO S.S.Chahal, the petitioner states to have boarded the service transport and performed the assigned task at Ambala Cantt. Still, on 29.5.2003, the petitioner, to his utter surprise, was marched up before his Commanding Officer with an allegation of having committed an offence of disgraceful/cruel/indecent conduct, by particularly averring that he had jumped from the service transport with an intention to escape the assigned task while the vehicle was enroute to Railway Station. Before the Commanding Officer, the petitioner pleaded that he did not commit any offence and rather he had performed his duties as ordered by JWO S.S.Chahal. In support, he produced two witnesses, namely, Cpl.Diwedi and LAC SR Kumar. They confirmed that the petitioner had performed the duty of unloading. The petitioner avers that despite this, he was awarded punishment of 3 days extra guard duties, which fact was published in Personal Occurrence Report (POR) No.49 of 2003. CIVIL WRIT PETITION NO.10139 OF 2004 :{ 3 }: The petitioner sought an interview with his Commanding Officer on 23.7.2003, which was refused. He, however, was summoned on the same day on a charge for an offence of not having proper service hair cut as was reported by provost and security Unit of the Air Force. The petitioner, while appearing before the Commanding Officer, requested him to show the report, when he found that service number or rank or the Unit of person named, `Prasad', entered in the report was not mentioned. The petitioner apprised the Commanding Officer that there were number of persons with name having pre-fix or suffix as `Prasad' and so the report could not be linked to him in any manner. The petitioner was marched out from the Orderly Room. The petitioner states that the Commanding Officer was quite annoyed with the petitioner as he had objected to the illegal punishment of extra guard duties awarded to him as this punishment of extra guard duty could not have been imposed on Non-commissioned Officer. The report received from Provost Unit was returned to furnish the complete particulars. In the meantime, the petitioner came to know that earlier part II order, showing award of 3 days extra guard duties had been changed to severe reprimand without any authority and another POR No.63 of 2003 was issued. Pleading that the Commanding Officer has no power to cancel, alter or amend/review the punishment once awarded, the action of changing the nature of punishment is termed as unsustainable, illegal and unconstitutional. The petitioner would also plead that punishment of three extra guard duties was void, abinitio and the same instead of being cancelled was changed by tampering with the record. The CIVIL WRIT PETITION NO.10139 OF 2004 :{ 4 }: petitioner accordingly submitted an application against this action on 11.9.2003. He followed it up by filing a statutory petition in the form of Redressal of Grievance (ROG) under Section 26 of the Air Force Act. As per the grievance of the petitioner, the Superior Air Force Authority instead of cancelling this illegal punishment rejected the ROG vide letter dated 16.2.2004. The petitioner then served a legal notice under Section 80 C.P.C. In the meantime, the Commanding Officer had tried the petitioner on 4.8.2003 and awarded punishment of severe reprimand for the allegation and report of his improper hair cut. It was also alleged against the petitioner that in this regard he had given false particulars of CPL Amara RK, as can be seen from POR published in this regard. Against this also, the petitioner had filed ROG on 20.10.2003, which was rejected on 16.2.2004. The petitioner thereafter had served a notice under Section 80 C.P.C. on 19.2.2004 and then had filed this writ petition for quashing of the impugned orders. Written statement on behalf of respondent Nos.1 to 5 has been filed. It is stated that the petitioner has committed various acts of omission and indiscipline during the course of his duties and so was punished on various occasions. The conduct sheet of the petitioner is referred to point out that the petitioner was punished on four occasions, two out of which were for absence and two are those punishments, which the petitioner has challenged through the present writ petition. Responding to the pleadings in the present writ petition, it is stated that the true position is that on 17.5.2003, a large CIVIL WRIT PETITION NO.10139 OF 2004 :{ 5 }: consignment of armaments had arrived at Ambala Cantt., which was to be off loaded hurriedly. All possible man power was required to be mustered at short notice. JWO S.S.Chahal was to take all Airmen to the Railway Station and he had accordingly gone to the Airmen Mess for asking Airmen to board the transport. The petitioner, who was in the billet at that time, refused to obey the orders on the pretext that he was not properly dressed. Though he boarded the vehicle but around 17:45 hours he jumped from the service transport at the gate to escape the assigned task. For this, the petitioner was charge sheeted. The fact that the petitioner had produced two witnesses is not disputed. However, the petitioner was statedly given right to cross-examine the Officer on the report of which the charge was preferred against him but he declined. The Senior NCO concerned was asked to clarify if the charge sheet pertaining to the petitioner was correct. JWO S.S.Chahal was absolutely certain and confirmed the incident alleged against the petitioner. From the evidence as adduced, the Commanding Officer found the petitioner guilty of the charge and awarded him punishment of severe reprimand. This was duly recorded in the minor offence report dated 29.5.2003, copy of which is annexed as Annexure R-2 with the reply. On that very day, another LAC was tried for the same offence, who was awarded punishment of three extra guards. Due to a clerical error, this punishment was erroneously entered against the name of the petitioner but the same was duly cancelled vide POR No.63 of 2003, Annexure P-2. A copy of the statement of POR Clerk to this effect has been annexed with the reply as Annexure R-3. It is pointed out CIVIL WRIT PETITION NO.10139 OF 2004 :{ 6 }: that the petitioner had not undergone a punishment of extra guard duty and, thus, this will support the stand in the reply that due to purely a clerical error, the punishment was erroneously reflected against the name of the petitioner. The punishment awarded to the petitioner is, thus, justified. Similarly, the petitioner was allegedly found guilty of not having proper hair cut, for which he was tried by the Commanding Officer. When the petitioner raised objection as noted in earlier part, the Commanding Officer had obtained a clarification from the concerned Provost Unit that the Service number in the charge sheet against the petitioner was a clerical mistake. The petitioner was then given an option for appearing for an Identification Parade before the Provost Staff alongwith two Airmen, who were having the name prefix with `Prasad', which the petitioner declined. After taking into consideration the relevant material and evidence, the petitioner was awarded the punishment of severe reprimand on 4.8.2003. It is, therefore, stated that the petitioner has been afforded a fair and proper trial and has been punished after following the procedure as laid down. It is, thus, prayed that the writ petition be dismissed. The counsel for the petitioner has primarily based his arguments on the ground that the punishment of extra drill could not have been awarded to the petitioner, he being a NCO (Non- commissioned Officer). The factual position has been explained in the reply. The legal position is not in any dispute. Counsel for the petitioner could not point out any material on record to show that the petitioner was made to undergo the punishment of three extra guard duties. Rather, the respondents have placed on record the material CIVIL WRIT PETITION NO.10139 OF 2004 :{ 7 }: to show that the petitioner was never made to undergo any such punishment. In fact, a purely clerical error has been twisted by the petitioner to highlight and press for this ground to challenge the punishment. The petitioner had been awarded severe reprimand after appreciation of the evidence produced before the Commanding Officer. The stand taken in the reply has not been countered by the petitioner, even by filing any replication to formally or informally deny the same. The stand of the respondents is duly supported by the documents, which are annexed with the reply. There is no reason to doubt the stand of the respondents. In any case, the writ Court can not go into the disputed questions of facts. When the petitioner is not seen to have suffered the effect of illegal punishment, which has also not been recorded in his conduct sheet, his objection about punishment being illegal is meaningless and rendered futile. The punishment recorded in the conduct sheet is severe reprimand. Similarly, the second punishment has also been rightly awarded to the petitioner after affording him due and adequate opportunity to defend himself. The petitioner has unnecessarily racked up frivolous issues and pleas. The petitioner was given proper and fair opportunity to appear for identification before the Provost Unit, which had reported against him for not having proper hair cut. If the petitioner indeed was not so reported, he would not have declined this fair offer. An adverse inference, therefore, can be drawn against the petitioner in this regard. Here again, the petitioner is making an attempt to raise a factual controversy, which the writ Court would not be in a position to adjudicate as per the well settled norms. There is no merit in the pleas raised by the CIVIL WRIT PETITION NO.10139 OF 2004 :{ 8 }: petitioner and the writ petition is dismissed. August 23, 2011 (RANJIT SINGH ) khurmi JUDGE