Case: DALBIR SINGH Vs. UNION OF INDIA

mark of retaliation. In that circumstance, it is contended that when in the attack carried out by the militants the colleague of the appellant late Gurmail Singh had died and there was no action from the appellant, it is a grave situation which warranted the action taken and the same does not call for interference. 6. In the above background, keeping in view the scope available in examining a matter of the present nature we have taken note of the nature of the consideration made by the Armed Forces Tribunal as the same was in a statutory appeal against the proceedings by the SGCM. In the matter of the present nature when the task assigned to a soldier is cut out in a definite manner and when the duties are assigned, the only scope in a judicial proceeding is to find out whether the same has been performed by him based on the finding of fact that is recorded. In a matter where allegation of cowardice is made, the reason for which such allegation is made is to be taken note and considered. In that view, without adverting to all other aspects what is necessary to be taken note is the charge that was made and the reason for which the competent authority had arrived at the conclusion that the appellant instead of performing his duty had run away from it. Limited to that aspect, what is to be taken note is that in the background of the situation that had arisen, the task assigned to the group of officers was to cordon the area and prevent the militants from breaking through. The charge against the appellant is that despite the militants having attacked and killed Sapper Gurmail Singh who was in the group of the appellant and though the LMG was manned by the said deceased Sapper Gurmail Singh and the appellant, the appellant had not retaliated using either the AK-47 gun or the pistol which was in his possession. On the other hand, the appellant abandoned the post and jumped over the wall to escape from the spot. The defence of the appellant, however, was that he had jumped over the wall to protect himself and attack the militants and in that process he was also fired at, to his leg and was injured, in the process he had become unconscious for about 10 seconds and it is at that point the militants had picked up the LMG and carried it away. The appellant had also stated that his AK¬47 was jammed when tried to use it. 7. From the evidence of the witnesses the manner in which the incident had occurred has been referred to in detail. Insofar as charge against the appellant, apart from the fact that he was injured the other actions would indicate that the appellant did not rise to the occasion more particularly when his colleague was attacked and killed. Though he has contended that he had jumped the wall to protect himself, there is no reasonable explanation as to why he had not used the weapons which were with him when the attack from the militants had already taken place and his colleague was injured. Even if the explanation sought to be put forth by him that he was unconscious for about 10 to 12 seconds is taken note the same was not of such a long duration which had prevented him from taking any action even thereafter and that too in a situation when the militants had killed a soldier and also had taken away the LMG. While taking note of the said explanation sought to be put forth by the appellant the Tribunal has rightly arrived at the conclusion that the theory of the appellant having become unconscious cannot be accepted since all incidents which occurred from the time there was an attack by the militants including the act of the militants in taking away the LMG was explained by the appellant, which he would not have been aware of if he was actually unconscious. In that circumstance, when the evidence has been adverted to by the Armed Forces Tribunal and when such conclusion reached does not indicate any perversity it would not be appropriate for this Court to interfere in the matter. Further, there is no other material or circumstance brought on record by the appellant to indicate, but for the incident there was any other reason due to which he was victimized or to show that it is a malafide action. 8. Though the learned counsel for the appellant has sought to refer to the cross¬examination of PW-4 to PW¬6 to indicate that he had taken part in several operations earlier and the said witnesses have admitted him to be a good soldier, in the matter of protecting the border, a soldier cannot live merely on past glory but should rise to the occasion on every occasion to defend the integrity of the nation since such is the trust reposed in a soldier. Though in service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied. The resources of the country are spent on training a soldier to retaliate and fight when the integrity of the nation is threatened and there is aggression. In such grave situation if a soldier turns his back to the challenge, it will certainly amount to cowardice. If in that background, the action taken against the appellant is taken note, we are of the opinion, that the SGCM and the Armed Forces Tribunal were justified. 9. Having arrived at the above conclusion we also take note that the appellant apart from being dismissed from service has also been ordered to undergo rigorous imprisonment for six months.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. In the above background, keeping in view the scope available in examining a matter of the present nature we have taken note of the nature of the consideration made by the Armed Forces Tribunal as the same was in a statutory appeal against the proceedings by the SGCM. In the matter of the present nature when the task assigned to a soldier is cut out in a definite manner and when the duties are assigned, the only scope in a judicial proceeding is to find out whether the same has been performed by him based on the finding of fact that is recorded. In a matter where allegation of cowardice is made, the reason for which such allegation is made is to be taken note and considered. In that view, without adverting to all other aspects what is necessary to be taken note is the charge that was made and the reason for which the competent authority had arrived at the conclusion that the appellant instead of performing his duty had run away from it. Limited to that aspect, what is to be taken note is that in the background of the situation that had arisen, the task assigned to the group of officers was to cordon the area and prevent the militants from breaking through. The charge against the appellant is that despite the militants having attacked and killed Sapper Gurmail Singh who was in the group of the appellant and though the LMG was manned by the said deceased Sapper Gurmail Singh and the appellant, the appellant had not retaliated using either the AK-47 gun or the pistol which was in his possession. On the other hand, the appellant abandoned the post and jumped over the wall to escape from the spot. The defence of the appellant, however, was that he had jumped over the wall to protect himself and attack the militants and in that process he was also fired at, to his leg and was injured, in the process he had become unconscious for about 10 seconds and it is at that point the militants had picked up the LMG and carried it away. The appellant had also stated that his AK¬47 was jammed when tried to use it.From the evidence of the witnesses the manner in which the incident had occurred has been referred to in detail. Insofar as charge against the appellant, apart from the fact that he was injured the other actions would indicate that the appellant did not rise to the occasion more particularly when his colleague was attacked and killed. Though he has contended that he had jumped the wall to protect himself, there is no reasonable explanation as to why he had not used the weapons which were with him when the attack from the militants had already taken place and his colleague was injured. Even if the explanation sought to be put forth by him that he was unconscious for about 10 to 12 seconds is taken note the same was not of such a long duration which had prevented him from taking any action even thereafter and that too in a situation when the militants had killed a soldier and also had taken away the LMG. While taking note of the said explanation sought to be put forth by the appellant the Tribunal has rightly arrived at the conclusion that the theory of the appellant having become unconscious cannot be accepted since all incidents which occurred from the time there was an attack by the militants including the act of the militants in taking away the LMG was explained by the appellant, which he would not have been aware of if he was actually unconscious. In that circumstance, when the evidence has been adverted to by the Armed Forces Tribunal and when such conclusion reached does not indicate any perversity it would not be appropriate for this Court to interfere in the matter. Further, there is no other material or circumstance brought on record by the appellant to indicate, but for the incident there was any other reason due to which he was victimized or to show that it is a malafide action.Though the learned counsel for the appellant has sought to refer to the cross¬examination of PW-4 to PW¬6 to indicate that he had taken part in several operations earlier and the said witnesses have admitted him to be a good soldier, in the matter of protecting the border, a soldier cannot live merely on past glory but should rise to the occasion on every occasion to defend the integrity of the nation since such is the trust reposed in a soldier. Though in service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied. The resources of the country are spent on training a soldier to retaliate and fight when the integrity of the nation is threatened and there is aggression. In such grave situation if a soldier turns his back to the challenge, it will certainly amount to cowardice. If in that background, the action taken against the appellant is taken note, we are of the opinion, that the SGCM and the Armed Forces Tribunal were justified.Having arrived at the above conclusion we also take note that the appellant apart from being dismissed from service has also been ordered to undergo rigorous imprisonment for six months.