The Respondent was enrolled in the Army as a Sepoy in October, 1999 and he was subsequently promoted to the rank of Naik. A preliminary investigation was conducted on 21.03.2008 on the complaint made by Captain Tanul Singh that he was physically assaulted by the respondent. The hearing on the tentative charge was conducted on 25.03.2008 and the summary of evidence was recorded on 28.04.2008. The Respondent was tried by Summary Court Martial which found him guilty of the charges and sentenced him to be reduced to rank and to suffer rigorous imprisonment for nine months in civil prison apart from being dismissed.

The petition filed by the Respondent under Section 164(2) of the Army Act was rejected by the Signature Not Verified Digitally signed by Chief of Army Staff on 20.08.2009.

Date: 2020.03.07 10:46:50 IST Reason:

The Respondent approached the Armed Forces Tribunal, Regional Bench, Kolkata challenging the order 2 of penalty and the order of dismissal. The Armed Forces Tribunal allowed the appeal filed by the Respondent. The penalties imposed against the Respondent were set aside and the Respondent was directed to be treated as notionally reinstated and was allowed to serve notionally till completion of 15 years of qualifying service for being entitled to pension. The Tribunal held that the respondent was deemed to be retired on completion of pensionable service as per Pension Regulation w.e.f. 30.09.2014.

The judgment of the Armed Forces Tribunal is in challenge before us.

As the respondent was not represented, we requested Mr. Amar Dave, learned counsel to assist this Court by appearing on behalf of the Respondent.

We have heard Mr. R. Balasubramanian, learned Senior Counsel for the Appellant and Mr. Amar Dave, learned counsel for the Respondent. It was contended on behalf of the Appellant that there is sufficient evidence to show that the Respondent assaulted his superior officer. The statement of Captain Tanul Singhal is on record, supported by medical evidence, which shows that he was attacked by the Respondent and had suffered a hairline fracture on his hand. The finding of the Tribunal in respect of compulsory registration of FIR has been the subject matter of the judgment of this Court in Union of India & Ors. v. 3 Chandra Bhushan Yadav (Civil Appeal No.18830 of 2017) in which it was held that it is not mandatory for the authorities to report the offences to civil police for registration of an FIR. It was urged on behalf of the Appellant that the Tribunal failed to appreciate the evidence on record in its proper perspective. It was also argued that no leniency can be shown to personnel accused of indiscipline in the Army and the Tribunal went wrong in granting relief to the Respondent.

Mr. Amar Dave, learned Amicus Curiae took us through the findings recorded by the Tribunal regarding non-compliance of the requirement of Rule 22 of the Army Rules. He submitted that the Respondent was not given sufficient opportunity as provided in the Army Rules. He also relied upon the statements of Captain Singhal, which was recorded during the additional summary of evidence wherein he admitted that he exaggerated the incident in his earlier statement. He submitted that the Respondent is given only the benefit of pension and there is no direction for reinstatement. The order passed by the Tribunal is commensurate with the delinquency alleged against the Respondent warranting no interference by this Court.

The findings recorded by the Tribunal that the proceedings of the Summary Court Martial are vitiated on account of non-registration of the FIR is covered by a judgment of this Court in Chandra Bhushan Yadav 4 (supra). In the said judgment, it was held by this Court that Armed Forces Act is a special law conferring powers on the Court Martial and prescribing the procedure for control of offences, and the Code of Criminal Procedure is not applicable in respect of matters covered by the aforesaid Act. On the said findings, it was held that it is not mandatory for the authorities to report offences to civil police for registration of FIR. The said judgment is squarely applicable to this case.

We have carefully examined the evidence on record and we are in agreement with the judgment of the Tribunal that the respondent was not given sufficient opportunity as provided under the Army Rules. Rule 22 of the Army Rules which provides that the delinquent shall be given full liberty to cross examine any witnesses against him and to call such witness and make such statement that may be necessary for his defense. We agree with Mr. Balasubramanian that lenient view cannot be taken in matters of discipline in the Armed Forces. However, we are of the view that the delinquent person should be given adequate opportunity to defend himself in respect of allegations of misconduct or indiscipline which are made against them. The mandatory provisions in the Act and the Rules have to be scrupulously followed.

Taking into account the nature of the order 5 that is passed by the Tribunal, wherein there is no direction for reinstatement of the Respondent and the direction is only for payment of pension, we are not inclined to interfere with the judgment of the Tribunal.

The Appeal is, therefore, dismissed. Pending applications, if any, stand disposed of.

We record our appreciation for Mr. Amar Dave, learned counsel who had obliged this Court by his able assistance on behalf of the Respondent.

.............................J. ( L.NAGESWARA RAO ) ............................J. ( DEEPAK GUPTA ) New Delhi, 3rd March, 2020.

Date : 03-03-2020 These matters were called on for hearing today. CORAM :