Satish Kumar v. Union of India & Ors.

The petitioner has also challenged orders passed in appeal against the awarding of punishment. Brief facts leading to the filing of the present writ petition are, that the petitioner was enrolled in Army on 19.3.1987 in the Ordinance Corps. The petitioner by virtue of his service and report of work and conduct earned promotion to the rank of Havildar. While holding the post of substantive Havildar, he was charged with misconduct of absence from duty without sanctioned leave. The petitioner was alleged to have remained absent, from duty for a period of 30 days i.e. from 3.7.2006 to 1.8.2006. The petitioner was treated to be absent from duty for the reason, that leave applied though sanctioned was in fact from the later date. The petitioner without waiting for the sanctioned leave proceeded on leave. When the petitioner reported for duty he was served with a charge-sheet, and was tried by Summary Court Martial, wherein statements of prosecution witnesses were recorded. The petitioner was found guilty of the charge. Resultantly, the Officer Commanding i.e. Respondent No.5 passed the impugned order attached as Annexure P.1, to this writ petition which reads as under:- “ VERDICT OF THE COURT CWP No. 8039 of 2010 3 Findings of guilty I am of the opinion on the evidence before me that the accused No.6927502N the SKT (MT) Satish Kumar is guilty of the said charge(s), (is guilty of the charge/all the charges(s). Sd/ Col. Court. PROCEEDINGS BEFORE SENTENCE The following minutes by the court are read and explained: Instructions If the Court does not record the accused person's convictions and character of its own knowledge, evidence as to these matters will betaken as on Page 'F' of the form of proceedings for a General or District Court Martial. It is within my own knowledge from the records of the 2 CORPS ZONE WKSP that the accused has snot been previously convicted by court martial or criminal court.(A separate statement giving full particulars of any previous conviction to be annexed when necessary. That the following is a fair and true summary of the entries in this defaulter sheet exclusive of convictions by a court martial or a criminal court. For .................Times..................Times................................. For .................Times..................Times................................. For .................Times..................Times................................. For .................Times..................Times................................. That he is at present undergoing ...........sentence. That irrespective of his trial, his general character has been exemplary. That his age is 37 years 01 month and 21 days. His service is 19 years 06 months and 03 days and his rank is Havildar. CWP No. 8039 of 2010 4 That he has been in arrest (confinement) for ..days. That he is in possession of or entitled to the following military decorations and rewards ................Nil. Any recognized acts of gallantry or distinguished conduct should also be entered here. SENTENCE BY THE COURT Sentence: Taking all these maters into consideration, I Reductions now sentence the accused No.6927502N Hav.SKT (MT) of 2 Corps. Zone Wksp. to be reduced to the ranks. Signed at Patiala this twenty three day of September, 2006. IC 45366 K.Col. Sandeep Singh The Court 2 Corps Zone WKSP Sd/- The Court The Trial closes at 1330 hron23 September, 2006. Promulgated and extracts taken at Patiala on 23 September,

2006.” The petitioner preferred a statutory appeal, against the order of punishment on the ground, that the impugned order, was without jurisdiction as the Officer Commanding was not competent to impose punishment of reversion to the rank of Sepoy, from the substantive rank of Havildar. Statutory appeal was rejected vide order dated 16.9.2009. CWP No. 8039 of 2010 5 The petitioner thereafter approached the Armed Forces Tribunal for redressal of his grievance, but because of the fact that punishment awarded to the petitioner was in pursuance to the Summary Court Martial, it was prima facie held that Armed Forces Tribunal did not have jurisdiction to deal with the matter as it did not fall in the category of service matters, as defined under the Armed Forces Tribunal Act. The case was, therefore, withdrawn with liberty to approach appropriate forum. Learned counsel for the petitioner challenged the impugned order on the ground, that sentence awarded is without jurisdiction as the Officer Commanding had no power to revert the non-commissioned officer, holding a substantive post of Havildar, to the post of Sepoy. Learned counsel for the petitioner in support of this contention referred to Section 20 of the Army Act, 1950 which reads as under:- “20. Dismissal, removal or reduction by the Chief of the Army Staff and by other officers.-- (1) The Chief of the Army Staff may dismiss or remove from the service any person subject to this Act, other than an officer. (2) The Chief of the Army Staff may reduce to a lower grade or rank or the ranks, any warrant officer or any non- commissioned officer. (3) An officer having power not less than a brigade or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his CWP No. 8039 of 2010 6 command other than an officer or a junior commissioned office. (4) Any such officer as is mentioned in sub-section (3) may reduce to a lower grade or rank or the ranks, any warrant officer or any non-commissioned officer under his command. (5) A warrant officer reduced to the ranks under this section shall not, however, be required to serve in the ranks as a sepoy. (6) The commanding officer of an acting non-commissioned officer may order him to revert to his permanent grade as a non- commissioned office, or if he has no permanent grade above the ranks, to the ranks. (7) The exercise of any power under this section shall be subject to the said provisions contained in this Act and the rules and regulations made thereunder.” Learned counsel for the Union of India supported the order by referring to Section 116 of the Army Act, wherein it is provided that summary court martial may be held by the commanding officer of any corps, department or detachment of the regular Army, and he shall alone constitute the court. The contention of the learned counsel for the respondents, therefore, was that summary court martial was rightly constituted by Officer Commanding. Therefore, in view of the provisions of Section 120 of the Army Act, it was competent for commanding officer to issue punishment of reversion. CWP No. 8039 of 2010 7 Sections 116 and 120 of the Army Act read as under: “116. Summary court-martial. (I)- A summary court-martial may be held by the commanding officer of any corps, department or detachment of the regular Army, and he shall alone constitute the court. (2) The proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such,be sworn or affirmed.

120. Powers of summary courts-martial.--(I) Subject the provisions of sub-section (2), a summary court-martial may try any offence punishable under this Act. (2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district court-martial or on active service a summary general court-martial for the trial of the alleged offender, an officer holding a summary court- martial shall not try without such reference any offence punishable under any of the sections 34, 37 and 69, or any offence against the officer holding the court. (3) A summary court-martial may try any person subject to this Act and under the command of the officer holding the CWP No. 8039 of 2010 8 court, except an officer, junior commissioned officer or warrant officer. (4) A summary court-martial may pass any sentence which may be passed under this Act, except a sentence of death or transportation, or of imprisonment for a term exceeding the limit specified in sub-section (5). (5) The limit referred to in sub-section (4) shall be one year if the officer holding the summary court-martial is of the rank of lieutenant-colonel and upwards, and three months, if such officer is below that rank.” From the reading of Sections 116 and 120 of the Army Act, it is clear that the Commanding Officer has no such power of reversion. On consideration, I find force in the contentions raised by the learned counsel for the petitioner. Power of punishment is provided under section 20 of the Army Act, wherein it is clearly stipulated that Officer Commanding of an acting non-commissioned officer, can order reversion to his permanent grade, as a non-commissioned officer, or if he has no permanent grade as above the ranks to the ranks. However, he has no power to revert a substantive Havildar to the post of sepoy as ordered vide Ex.P.1. The order Ex.P.1, therefore, is totally without jurisdiction having been passed by an Officer, who was not competent to impose the CWP No. 8039 of 2010 9 punishment awarded. The contention of the learned counsel for the respondents deserves to be noticed to be rejected, as neither section 116 nor section 120 of the Armed Forces Act give any power to the Officer Commanding to impose punishment of reversion of a non-commissioned officer, even if he is found guilty in the trial by summary court martial. The order in appeal also deserves to be set aside as it upholds an order which is without jurisdiction. Consequently the writ petition is allowed. The impugned orders are set aside. However, the respondents shall be at liberty to take appropriate action in accordance with law, if so advised. No costs.

10.08.2010 (Vinod K.Sharma) Judge