UMED SINGH BHIST Vs. UOI

JUDGEMENT

(1.) In this petition for a writ of certiorari, the petitioner calls in question an order passed by the Summary Court Martial holding the petitioner guilty of an offence punishable under Section 54(b) of the Army Act and sentencing him to undergo rigorous imprisonment for a period of one year besides dismissal from service . A mandamus directing the respondents to reinstate the petitioner in service with full backwages and other service benefits has also been prayed for.

(2.) The petitioner was posted to 7 Kumaon Regiment during the relevant period. On 16th September, 1990, he was, together with Sepoy Padam Singh, Sepoy Sadar Singh and Havildar Kundan Singh deployed for duty as Magazine Guards. Each one of the members of the team collected their personal weapons from the B Coy armoury (kote) and reported for duty at the Magazine. Since the petitioner was not detailed as the first sentry by the Guard Commander, he appears to have kept his rifle in the rack, provided for the purpose and proceeded to the company lines. He returned to the Magazine later to relieve Sepoy Padam Singh from sentry duties but did not collect his personal weapon from the rack for doing so. In stead he took sepoy Padam Singh's rifle for that purpose which was against the existing instructions on the subject. After completing his duty hours the petitioner appears to have handed over the rifle of Sepoy Padam Singh to Sepoy Sadar Singh and left for the company lines without checking his personal weapon and/or reporting the loss thereof. The weapon issued to the petitioner was found missing from the Magazine Guard about which loss the petitioner could offer no explanation. A staff Court of enquiry was convened to enquire into the circumstances leading to the loss of the weapon in which the petitioner appears to have made a statement to the effect that he had sold his weapon to some civilian for Rs.15,000/- and had illegal intercourse with a girl during the deal. In the Summary of evidence, however, that version was retracted by him. The petitioner was eventually tried for an offence punishable under Section 54(b) of the Army Act for having lost by neglect the 7.62 mm Self Loading Rifle issued to him for official use. Havildar Kundan Singh, Sepoy Padam Singh and Sepoy Sadar Singh were also tried for commission of an offence punishable under Section 63 of the Army Act in as much as their actions were prejudicial to good order and military discipline. The Court Martial found the petitioner guilty and awarded him rigorous imprisonment for a period of one year besides dismissal from service. The missing rifle was subsequently recovered by the civil police at Almora from Sepoy Dhan Singh of Kumaon Regiment who was on annual leave during that time. A second Court of enquiry came to the conclusion that loss of rifle had primarily occurred due to gross negligence of the Magazine Guard who did not carry out their duty as laid down in the Batallion Standing Orders while guarding the Magazine Guards. Sepoy Dhan Singh was court Martialled and dismissed from service w.e.f. 11th May, 1996.

(3.) Aggrieved by the conviction and sentence awarded to him, the petitioner filed C.W.408/1995 in this court, which petition was eventually disposed of in terms of an order dated 6th December, 1996 extracted below: