{"id":62368,"date":"2009-04-04T00:00:00","date_gmt":"2009-04-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-ayodhya-nath-on-4-april-2009"},"modified":"2016-08-07T03:03:53","modified_gmt":"2016-08-06T21:33:53","slug":"union-of-india-ors-vs-ayodhya-nath-on-4-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-ayodhya-nath-on-4-april-2009","title":{"rendered":"Union Of India & Ors vs Ayodhya Nath on 4 April, 2009"},"content":{"rendered":"
Jammu High Court<\/div>\n
Union Of India & Ors vs Ayodhya Nath on 4 April, 2009<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            \nLPA(OW) no. 336 of 2000  \nUnion of India & ors.\nPetitioners\nAyodhya Nath. \nRespondent  \n!Mr. Tashi Rabastan, CGSC.  \n^Mrs. S. Kour, Advocate.\n\nHon'ble Mr. Justice Barin Ghosh, Chief Justice.\nHon'ble Mr. Justice J. P. Singh, Judge.\nDate: 04.04.2009 \n:J U D G M E N T :\n<\/pre>\n
Per Barin Ghosh, CJ:\n<\/p>\n
In a writ petition, petitioner-respondent challenged the
\nSummary Court-martial verdict sentencing him to undergo 6
\nmonthsb\ufffd(tm) rigorous imprisonment in civil prison and also
\nterminating his service on this count. Petitioner-respondent also
\nprayed for quashing of the order by which the appeal filed by
\nhim was rejected. By the judgment and order under appeal, the
\norder terminating the service of petitioner-respondent was not
\n                                  2<\/span>
\ninterfered with, but a direction was given that petitioner-
\nrespondent shall appear before the Commanding Officer of the
\nUnit when he shall be at liberty to prove his defence, with a
\nfurther direction upon the Commanding Officer to conduct an
\nenquiry after affording a prospective hearing. The Writ Court
\ndirected that the relief to which petitioner-respondent is entitled,
\nwould depend upon the outcome of the enquiry. The Writ Court
\nfurther fixed a date for appearing of petitioner-respondent
\nbefore the concerned officer and directed completion of the
\nenquiry within three months from the date thereof. This was
\ndone proceeding on the basis that petitioner-respondent was
\nnot given a reasonable opportunity of hearing since the
\nproceedings were concluded in one day. Being aggrieved
\nthereby, the present appeal has been filed by the appellants
\nherein.\n<\/p>\n
       The principal contention of the appellants in the appeal is
\nthat they have acted strictly in accordance with rules governing
\nthe field and there was, and is, no scope for directing a further
\nenquiry in respect of matters which have been enquired into in
\naccordance with rules and concluded strictly in accordance
\ntherewith.\n<\/p>\n
       The undisputed facts of this case are that, on October 5,
\n1982, petitioner-respondent joined the Army. In the month of
\nDecember, 1991, he was a Gunner in the Army, attached to
\n18\/12 Field Regiment. He was then, thus, not an officer in the
\nArmy. Petitioner-respondent approached for leave for the
\npurpose of attending his sisterb\ufffd(tm)s marriage to be performed on
\nDecember 11, 1991. Accordingly, casual leave with effect from
\nDecember 9, 1991 was accorded to him. By telegram sent by
\n                                 3<\/span>
\npetitioner-respondent and received by the appropriate authority
\non December 10, 1991, petitioner-respondent held out that the
\nmarriage has been shifted to December 15, 1991 with a request
\nto extend the leave. Accordingly, his leave was extended till
\nDecember 26, 1991. By another telegram received by the
\nappropriate authority on December 18, 1991, petitioner-
\nrespondent purported to hold out that his wife was serious and,
\naccordingly, sought extension of leave by 20 days. By a
\ntelegram, the date of which is not on record of this case,
\npetitioner-respondent was purportedly informed that he has not
\nbeen sanctioned leave as was requested for. Petitioner-
\nrespondent on January 6, 1992 rejoined duty. In the meantime,
\nsince petitioner-respondent did not join on December 27, 1991,
\napprehension warrant was issued on December 28, 1991 which
\nwas cancelled on January 9, 1992.\n<\/p>\n
       As it appears from the records produced by the
\nappellants, on January 21, 1992, proceedings under Army Rule
\n22 were initiated by the Commanding Officer, Col. Arun. On that
\ndate, two witnesses were allegedly examined in the presence of
\npetitioner-respondent who, allegedly, declined to cross-examine
\nthem. Allegedly, in course of such proceedings, petitioner-
\nrespondent made no statement but pleaded guilty. He also did
\nnot produce any witness.\n<\/p>\n
       The proceedings under Army Rule 22 pertained to the
\nfollowing charge:\n<\/p>\n
       b\ufffdHe is charged for without sufficient cause overstaying
\n       leave granted to him, in that he having been granted
\n       leave from 09 Dec. 91 to 26 Dec. 91 to proceed to his
\n       home, failed without sufficient cause to report on duty
\n       on expiry of the said leave till rejoined voluntarily on 06
\n                                  4<\/span>
\n      Jan 92 at 2030h. (Total period of absence 11 days)
\n      [(Army Act 39(b)]b\ufffd.<\/p><\/blockquote>\n
      Petitioner-respondent      signed  annexure    II  of  the
\nproceedings conducted under Army Rule 22. The contents of
\nannexure II is as follows:\n<\/p>\n
      b\ufffdA brief of the statement made by the accused
\n      No.14480997P Rank Gunner (General Duties) Name
\n      Ayodhya Nath of 12 Field Regiment:-\n<\/p><\/blockquote>\n
             b\ufffdI am guilty of the above charge as mentioned
\n             in Annexure Ib\ufffd(tm).b\ufffd
\n      The entire body of annexure II is type-written, except the
\nsignature appended thereto by petitioner-respondent.<\/p><\/blockquote>\n
      On conclusion of the hearing, in course of the proceedings
\nbefore the Commanding Officer under Army Rule 22, an order
\nwas passed on January 21, 1992 to the effect as follows:\n<\/p>\n
      b\ufffdEvidence to be reduced to writingb\ufffd
\nThereupon, on January 22, 1992 evidence of Major Ranbir
\nSingh; Subedar Govind Singh and Havildar Vijay Kumar was
\nrecorded before Capt. Jaya Kumar in the presence of Naib
\nSubedar Brij Gopal Singh, when it was recorded that petitioner-
\nrespondent declined to cross-examine the witnesses and that
\nthe summary evidence was recorded in the presence of the
\naccused and independent witness.\n<\/p>\n
                                   5<\/span><\/p>\n
       There is one more document produced by the appellants,
\ndated February 10, 1992, which appears to be a certificate to
\nthe effect as follows:\n<\/p>\n
       b\ufffdBefore recording plea of guilty offered by the accused
\n       No.14480997P Gunner (General Duties) Ayodhya
\n       Nath, the Court explained to the accused the hearing of
\n       charge to which he has pleaded guilty and ascertained
\n       that the accused understand the nature of the charge
\n       to which he has pleaded guilty. The Court also
\n       informed the accused the general effect of the plea of
\n       guilty and the difference in procedure which will be
\n       followed consequent to the same plea. The court
\n       having satisfied itself that the accused understand the
\n       charge and the effect of his plea of guilty, accepts and
\n       records the same. The provision of Army Rule 115(2)
\n       are complied with.b\ufffd
\nThis certificate records that the accused refused to sign the
\ncertificate. It then records that friend of accused, Capt. Shivesh
\nTandon, has signed the certificate.<\/p><\/blockquote>\n
       The documents produced by the appellants suggest that
\nin course of Summary Court-martial conducted by the
\nCommandant, Col. Arun, Commanding Officer, 12 Field
\nRegiment, the accused pleaded guilty to the charge as
\nmentioned above. It further appears that on February 10, 1992,
\nsentence of the Court presided over by the Commanding Officer
\nwas pronounced whereby petitioner-respondent was sentenced
\nto rigorous imprisonment in civil prison and was directed to be
\ndismissed from service. It appears that the said sentence was
\ncounter-signed by Brigadier L. K. Arora, Commandant, 24
\nArtillery Brigade, on March 4, 1992.\n<\/p>\n
       It appears that on August 19, 1992 discharge certificate
\nwas handed over to petitioner-respondent.\n<\/p>\n
                                  6<\/span><\/p>\n
       The question is: In the facts and circumstances of the
\ncase, can it be said that the proceedings complained of in the
\nwrit petition are contrary to rules or procedure established by
\nrules requiring interference by the Writ Court?\n<\/p>\n
       Clause (b) of Section 39 of the Army Act, 1950 provides
\nthat any person subject to the said Act, who, without sufficient
\ncause, overstays leave granted to him shall, on conviction by
\nCourt-martial, be liable to suffer imprisonment for a term which
\nmay extend to three years or such less punishment as is
\nmentioned in the Act. There is no dispute that petitioner-
\nrespondent was subject to the said Act and he overstayed leave
\ngranted to him. The question as to whether or not such overstay
\nwas without sufficient cause, by the nature of the provisions
\ncontained in clause (b) of Section 39 of the Act, was required to
\nbe ascertained by the Court-martial, for, without ascertainment
\nof the same, no conviction could be awarded.\n<\/p>\n
       Sub-section (3) of Section 20 of the Act provides that an
\nofficer having power not less than a Brigadier or equivalent
\nCommander or any prescribed officer may dismiss or remove
\nfrom the service any person serving under his command other
\nthan an officer or a junior commissioned officer. Rule 17 of the
\nArmy Rules, 1954 authorises dismissal or removal from service
\non the ground of conduct which has led to conviction of the
\nperson concerned by a Court-martial. Therefore, dismissal can
\nbe effected when the conduct of the person has led to his
\nconviction by a Court-martial by an officer having power not less
\nthan a Brigadier. In the instant case, the sentence as well as the
\norder of dismissal had been countersigned by the Brigadier,
\nShri L. K. Arora.\n<\/p>\n
                                7<\/span><\/p>\n
      Clause (d) of Section 108 of the Army Act recognizes
\nSummary Court-martial; whereas section 116 of the Act
\nprovides that a Summary Court-martial may be held by the
\nCommanding Officer of any corps, department or detachment of
\nthe regular army and he shall alone constitute the Court. It
\nfurther provides that the proceedings shall be attended
\nthroughout by two other persons who shall be officers or junior
\ncommissioned officers or one of either, and who shall not as
\nsuch be sworn or affirmed. There is no dispute that Lt. Col Arun
\nwas the Commanding Officer of the corps or the department or
\ndetachment of the regular army to which petitioner-respondent
\nwas attached.\n<\/p>\n
      Section 120 of the Act provides that a Summary Court-
\nmartial may try any offence punishable under the Act, subject to
\ncertain exceptions with which we are not concerned. It further
\nprovides that the Summary Court-martial may try any person
\nsubject to the Act and under the command of the officer holding
\nthe Court, except an officer, junior commissioned officer or
\nwarrant officer. Therefore, Lt. Col Arun was duly authorized to
\nhold Summary Court-martial to try petitioner-respondent for the
\noffence for which he was tried. There is no dispute that the
\nsentence which the Summary Court-martial could award has
\nbeen awarded in the instant case.\n<\/p>\n
      Section 191 of the Act has authorized the Central
\nGovernment to make rules, including those pertaining to
\nassembly and procedure of the Courts of Inquiry, recording of
\nsummaries of evidence, administration of oaths or affirmations
\nby such Courts, convening and constituting Courts-martial and
\nappointment of prosecutors at trials by Courts-martial. In terms
\n                               8<\/span>
\nof the power so conferred, the Central Government has made
\nthe said Rules. Chapter V thereof deals with investigation of
\ncharges and trial by Court-martial. Rule 22(1) contained in the
\nsaid Chapter says that every charge against a person subject to
\nthe Act shall be heard by the Commanding Officer in presence
\nof the accused and that the accused shall have enough
\nopportunity to cross-examine any witness against him and to
\ncall such witness and make such statement as may be
\nnecessary for his defence. In the instant case, as it appears
\nfrom the records referred to above, the charge against
\npetitioner-respondent was heard by the Commanding Officer
\nwhen he heard witnesses against petitioner-respondent, but the
\npetitioner declined to cross-examine such witnesses and
\ninstead admitted his guilt. Rule 22(3)(c) provides that after
\nhearing the charge, if the Commanding Officer is of the opinion
\nthat the charge ought to be proceeded with, he shall adjourn the
\ncase for the purpose of having the evidence reduced to writing.
\nIn the instant case, inasmuch as petitioner-respondent pleaded
\nguilty, as it appears from the records referred to above, the
\nCommanding Officer adjourned the case for the purpose of
\nhaving the evidence reduced to writing.\n<\/p>\n
       Rule 23(1) of the Rules provides that where the case is
\nadjourned for having the evidence reduced to writing, at the
\nadjourned hearing evidence of witnesses, who were present
\nand gave evidence before the Commanding Officer, whether
\nagainst or for the accused, and of any other person, whose
\nevidence appears to be relevant, shall be taken down in writing
\nin the presence and hearing of the accused before the
\nCommanding Officer or such officer as he directs. In the instant
\n                                  9<\/span>
\ncase, evidence was not recorded before the Commanding
\nOfficer, but before Capt. Jaya Kumar and there is nothing on
\nrecord to suggest that Capt. Jaya Kumar was not directed by
\nthe Commanding Officer to record such evidence. No such plea
\nhas also been taken.\n<\/p>\n
      Rule 23(3) of the Rules provides that the evidence of each
\nwitness, after it has been recorded, as provided in the rule,
\nwhen taken down, shall be read over to him and shall be signed
\nby him or, if he cannot write his name, shall be attested by his
\nmark and witnessed as a token of the correctness of the
\nevidence recorded, which means that the evidence recorded
\nshould be acknowledged by the witness whose evidence is
\nrecorded and such acknowledgement should be made by
\nsigning or by putting the mark of the witness. It further provides
\nthat after the evidence against the accused has been recorded,
\nthe accused will be asked, b\ufffdDo you wish to make any
\nstatement? You are not obliged to say anything unless you wish
\nto do so, but whatever you say will be taken down in writing and
\nmay be given in evidenceb\ufffd. It further provides that any
\nstatement thereupon made by the accused shall be taken down
\nand read over to him, but he will not be cross-examined upon it
\nand that the accused may then call his witnesses, including, if
\nhe so desires, any witness as to character. In the instant case,
\nthe   evidence     of   witnesses,    as   recorded,   has   been
\nacknowledged by the witnesses as evidence given by them.\n<\/p>\n
      It is the contention of petitioner-respondent that recording
\nof such evidence is required to be countersigned by the person
\ncharged. But Rule 23(3) does not say so. Reliance of petitioner-
\nrespondent on the case of Ranjit Thakur v. Union of India,<\/a>
\n                                 10<\/span>
\nAIR 1987 SC 2386, for the preposition that procedure
\nprescribed must be scrupulously observed and non-compliance
\nthereof is such an infirmity which goes to the root of the
\njurisdiction and vitiates the proceedings, particularly in view of
\nthe nature of the provisions of the Act and the Rules which
\ncurtail, to a large extent, the protections contained in Article 21
\nof the Constitution on the strength of Article 33 of the
\nConstitution of India, appears to be not applicable to the instant
\ncase, for, rule 23(3) does not suggest that the evidence of
\nwitnesses recorded must be countersigned or signed by the
\nperson charged.\n<\/p>\n
       Rule 115(2) of the rules provides that if an accused
\nperson pleads guilty, that plea shall be recorded as a finding of
\nthe Court but, before recording the same, the Presiding Officer
\nis required to do certain things. The contention of petitioner-
\nrespondent that the plea of guilty has not been signed by him on
\nthe certificate given to that effect, which was done to comply
\nwith rule 115(2) and, instead, was signed by his alleged friend,
\nis of no consequence, for, the plea of guilty in terms of the
\nrequirements of rule 115(2) of the rules is required to be
\nrecorded as the finding of the Court and the finding of the Court
\nneed not be countersigned or accepted by the person charged.
\nAs held in Union of India v Ex. Havildar Clerk Prithpal Singh,
\nKLJ 1991 513 (DB), signature of the accused is not required
\nafter recording of the plea of guilt, but as a matter of caution the
\nsame should be taken. In the instant case, the same was taken
\nin course of the proceedings under Rule 22. Since at that stage
\nsummary of evidence was not recorded, the same was directed
\nto be recorded and later the certificate was issued signifying
\n                                 11<\/span>
\ncompliance of the mandate contained in Rule 115(2) to
\nconclude the Summary Court-martial.\n<\/p>\n
       It is true that the alleged friend of petitioner-respondent
\ncould not sign on his behalf the subject certificate and his
\nsigning of the same is of no effect inasmuch as in terms of Rule
\n95(4) of the Rules the friend of the person charged is not even
\nentitled to examine or cross-examine witnesses or to address
\nthe Court, but the same will not vitiate the finding of the Court
\nthat petitioner-respondent pleaded guilty. When the plea of
\nguilty had been taken of the sole charge, in terms of Rule 54,
\nthe Court, upon receiving any statement made by the person
\ncharged, was required to take further steps as were taken in the
\ninstant case and, accordingly, the sentence was awarded in
\nterms of rule 65 and the same was accepted by the Brigadier by
\nhis counter-signature and, therefore, it does not appear that the
\napplicable rules were not followed by the Summary Court-
\nmartial. Consequentially, overstaying leave without sufficient
\ncause, a punishable offence under section 39 of the Act, was
\ndetermined not only on the plea of guilt pleaded, but also on
\nevidence which appears to be the mandate of the law. Such
\ndetermination entailed conviction, on which it cannot be said
\nthat petitioner-respondent could not be removed from service.\n<\/p>\n
       That being the situation, there was no scope of
\ninterference in the instant case.\n<\/p>\n
       The other aspect of the matter is that the proceedings in
\nquestion, resulting in conviction and dismissal took place
\noutside the jurisdiction of this Court. The Appellate Authority
\ndecided the appeal outside the jurisdiction of this Court. Mere
\n                                 12<\/span>
\ncommunication of a copy of the order within the jurisdiction of
\nthis Court is no part of the cause of action which could give
\njurisdiction to this Court to entertain the present writ petition.
\nThe judgment rendered in Union of India v. Narinder Singh
\nMehta,<\/a> 1996 SLJ 276, is distinguishable inasmuch as in that
\ncase pre-confirmation petition against conviction and sentence
\nwas dismissed on February 19, 1994 and the sentence was
\npromulgated on October 3, 1994 and on October 10, 1994 the
\npost-confirmation appeal was filed when the petitioner was
\nserving on transfer within the jurisdiction of this Court. An
\nappeal is a continuation of the original proceeding and,
\naccordingly, it must be held that the original proceeding at the
\nappellate stage continued against the employee residing within
\nthe jurisdiction of this Court as a condition of his service, and
\ntermination of the proceedings by appeal, resulting in his
\ndismissal, took effect within the jurisdiction of this Court.\n<\/p>\n
       The appeal, accordingly, stands allowed and the judgment
\nand order under appeal is set-aside.\n<\/p>\n
             (J. P. Singh)                  (Barin Ghosh)\n                Judge                        Chief Justice.\nJammu,  \n04.04.2009 \nA. H. Khan, JR.\n\n\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court Union Of India & Ors vs Ayodhya Nath on 4 April, 2009 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPA(OW) no. 336 of 2000 Union of India & ors. Petitioners Ayodhya Nath. Respondent !Mr. Tashi Rabastan, CGSC. ^Mrs. S. Kour, Advocate. Hon’ble Mr. Justice Barin Ghosh, Chief Justice. Hon’ble Mr. Justice […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-62368","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nUnion Of India & Ors vs Ayodhya Nath on 4 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-ayodhya-nath-on-4-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union Of India & Ors vs Ayodhya Nath on 4 April, 2009 - 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