ASHOK KUMAR SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The whole controversy centres around .the question whether a summary Court martial (for short SCM) can be held by a Commanding Officer other than the Commanding Officer of the accused. Ashok Kumar Sharma, the petitioner in this case, was enrolled in the Indian Army, on 29th April, 1980 and was posted as Nursing Assistant. On 1st September, 1993 the quarrel took place between Sub/ORA R.C. Singh and the petitioner. The Court of inquiry gave its findings on 10th October, 1993 and held both of them to be guilty for the said. incident. Thereafter, the summary Court martial was held and the petitioner was reduced to his substantive ranks by the Registrar, M.H. Bareilly on 20th October, 1993. The petitioner separately filed a writ petition before the Allahabad High Court which is still pending.

(2.) Thereafter, the petitioner was issued a back dated movement order by the authorities concerned from M.H. Bareilly to M.H. Ranikhet on 29th January, 1994 providing one month leave and break journey, which was not granted properly to the petitioner. - On 5th October, 1996 the petitioner while on duty at M.H. Ranikhet stopped a civil Maruti Car loaded with huge quantity of unauthorized liquor from CSD canteen of M.H. Ranikhet. The said car was driven by Major S.S. Sidhu of KRC Ranikhet. The abovesaid action on the part of the petitioner piqued Major S.S. Sidhu so much that he threatened the petitioner with dire consequences. Major S.S. Sidhu hatched a conspiracy and. the petitioner was referred for psychiatric examination. It is averred that the motto behind this act was to declare the petitioner as a mental patient. The petitioner's statement in this respect made in summary Court martial proceedings was overlpoked. Due to this grudge KRC Ranikher (Col. I.B. Thomas arrayed as respondent No. 5) issued an unofficial and secret letter to M.H. Ranikhet (Retd. Col. R.K. Bhatia through the Commanding Officer, M.H. Ranikhet, arrayed as respondent No. 6) alleging that, "this individual is a perpetual offender, take an exemplary disciplinary action against him." Although the petitioner demanded the copy of the said letter vide his demands dated 7th December, 1996 and 22nd January, 1997, yet it was not given to him. Subsequently, respondent No. 6 referred the petitioner for psychiatric examination though he was medically in fit mental condition. A copy of the report dated 25th October, 1996, Annexure P-2, has been placed on record. It is alleged that the petitioner was bundled under escort and shunted to. the various hospitals on fake and vague charges. The Habeas Corpus writ petition bearing No. 37246/1996 was filed with the Allahabad High Court, wherein the High Court was pleased to restrain the respondents from referring the petitioner for psychiatric tortures and held their action to be arbitrary as well as in violation of Articles 14, 16 and 21 of the Constitution of India. A copy of the order dated 20th November, 1996, Annexure P-3, has been placed on record. The petitioner got himself examined by the doctor, whereby the penal of doctors/experts opined him to be medically. fit vide their report dated 30th November, 1996, Annexure P-4.

(3.) Thereafter, the petitioner was transferred from MH Ranikhet to MH Pathankot and the petitioner was kept under the bar of KRC Quarter Guard without any fault on his part. No charge sheet or warrant of- arrest was issued to him by the. competent authority. In this regard, another habeas corpus writ petition bearing No. 2190/1997 was filed before the Allahabad High Court and the petitioner was released on 28th January, 1997 after 30 days of illegal confinement by respondent Nos. 5 and 6. The petitioner was kept under the bar of KRC Quarter Guard for more than two days on 9th February, 1997 based on illegal attachment order dated 1st February, 1997 issued by respondent No. 7. The petitioner was charge sheeted on 20th February, 1997 under Section 40(c) of the Army Act, 1950 (in short "Army Act") , that is, for using insubordinate language to his superior officer and under Section 41(2) of Army Act, that is, for disobeying the lawful command given by his superior officer. The petitioner was ultimately dismissed from service on 4th March, 1997. The petitioner filed a petition before the Commanding Officer, Army Staff which was rejected vide order dated 13th February, 1998.