SUBEDAR KASHMIRA SINGH Vs. CHIEF OF ARMY STAFF

JUDGEMENT

(1.) This is a tale of intrigue one rarely associates with the Armed Forces. But for this Court's intervention, the illustrious career, spanning two decades and a half, of an Army Officer would have been derailed by the machinations of another. That the officer should be forced to repeatedly knock the portals of the High Court, for the honour and recognition which he richly deserves, and for the monetary benefits which he is entitled as of right, is, indeed, a matter of regret.

(2.) The petitioner, while holding the post of Senior Junior Commissioned Officer (SJCO) of the 6th Battery in the II Training Regiment at Hyderabad, was also officiating as a Subedar Major for a period of five months before Subedar Major Waman Akde took charge of the said post on 21.1.1987. The petitioner was transferred to Allahabad on 16.2.1987 and was required to report thereat on or before 28.4.1987. Subedar Major Waman Akde, after assuming office, took a hostile attitude against the petitioner and on 03.03.1987, while proceeding on leave, handed over charge, of the post of Subedar Major, to a person junior to the petitioner, though the petitioner was the senior most in the regiment. Alleging that he was illegally using an electric heater, the petitioner's house was raided during his absence and the quarters allotted to him was directed to be vacated. Only on his representation, was the quarters subsequently restored to him.

(3.) While matters stood thus, Subedar Major Waman Akde lodged a complaint to the Commanding Officer alleging that the petitioner was responsible for burning of certain kits and personal items belonging to the new recruits of the 6th Battery of II Training Regiment, Artillery Centre, Hyderabad at 6.30 am on 2.4.1987. The Commanding Officer directed Sri D.P. Chakraborty, the Battery Commander, to investigate into the matter and submit a report. Sri D.P. Chakraborty, after investigation, reported that there was no truth in the complaint despite which the Commanding Officer ordered a Court of Inquiry under Rule 177 of the Army Rules. The Court of Enquiry was conducted by Major V.M. Wadhawan. On the basis of the report of Major V.M. Wadhawan, the Commanding Officer directed Sri D.P. Chakraborty, the Battery Commander to march the petitioner under Rule 22 of the Army Rules. The petitioner requested for the option of trial by General Court Martial, (herein after referred to as G.C.M.), and submitted the names of the witnesses to be secured. In the meanwhile the Departmental Promotion Board, on 4.8.1987, approved the petitioner's name for promotion to the rank of Subedar Major. The petitioner was, however, denied promotion on the ground that disciplinary proceedings were pending against him. Questioning the action of the respondents, in refusing to promote him to the post of Subedar Major, the petitioner filed W.P.3777 of 1988. On 4.8.1988, a charge sheet was issued to the petitioner. On 20.6.1988 the Promotion Board again approved his name for promotion to the post of Subedar Major, despite which he was not promoted in view of the pendency of disciplinary proceedings. On 2.8.1988, the G.C.M. was convened and, based on the objections raised by the petitioner at the threshold itself, the G.C.M. was dissolved. On 7.11.1988, the same Commanding Officer again ordered a de-novo enquiry and directed the petitioner to submit his list of defence witnesses. On 9.3.1988 the petitioner filed W.P. No. 18200 of 1988 questioning the action of the Commanding Officer in ordering a de-novo enquiry. On 14.6.1989 the Army Promotion Board again approved the name of the petitioner for promotion to the post of Subedar Major. The petitioner was, however, not promoted in view of the pendency of disciplinary proceedings. W.P. No. 3777 of 1988 and W.P. No. 18200 of 1988 were dismissed by order dated 21.10.1989. On 31.10.1989, the petitioner was retired from service. However, on the same day, he was placed under close arrest and the summary of evidence was recorded. On 28.3.1990 the G.C.M. was convened and a similar objection, as was raised earlier, was raised by the petitioner. Eventually the G.C.M. was closed on 31.03.1990 and it recorded its findings holding the petitioner guilty of the charge. The petitioner was imposed the sentence of reduction in seniority by one year in the rank of Subedar and was administered a severe reprimand. The General Officer Commanding In Chief, Headquarters, Southern Command, Pune, in his order dated 16.08.1990, confirmed the sentence. Aggrieved thereby the petitioner filed W.P. No. 4519 of 1991 to quash the order of the 3rd respondent dated 16.8.1990 confirming the findings and punishment imposed by the G.C.M. In its order dated 18.03.1997, this Court noted that the petitioner had joined the Army as a Sepoy in 1961, had served honourably without any blemish in almost every place viz., NEFA, West Bengal, Punjab, Jammu and Kashmir, Assam and Sikkim, had participated in major operations like 'Ablaze', 'Riddle', 'Cactus' and 'Savage', that he was awarded nine medals including the "Paschim Star", the "Samara Seva Star", the "Himalaya Seva Star" and the "NEFA Star", that he had got five promotions during his 25 years of service and, even when disciplinary proceedings were pending against him, the Army Promotion Board had thrice recommended his name for promotion to the post of Subedar Major. This Court also noted that the incident, alleged to have taken place on 2.4.1987, was nearly ten years prior to the order being passed by this Court, that the petitioner had already undergone processorial torture and irreversible prejudice, that he was deprived of his personal liberty even after his retirement, that his track service record, before the alleged misconduct, was unblemished and that it had come out in the evidence of the witnesses for the prosecution that the petitioner was a disciplined and strict officer. This Court observed that when the petitioner inspected the barracks on 2.4.1987, after seeing the disorderly kit lay-out, he being a disciplined officer may have expressed his displeasure asking the sentry on duty to throw out the scattered articles, that the earlier allegation of destroying the articles was given up in the charge sheet dated 9.3.1990 and the mere allegation that the petitioner had shouted at the sentry on duty to throw out, and destroy, the articles in the context of an understandable righteous displeasure, without the further allegation of the sentry having translated the verbal direction into an act, did not persuade this court to reserve liberty to the respondents to hold a de-novo enquiry. This Court further held that a careful peep, into the evidence of the prosecution witnesses, indicated the unusual part played by Subedar Major Waman Akde in launching prosecution against the petitioner and that even P.Ws.1 to 3 had deposed that it was Subedar Maj Waman Akde who had called them on 3.4.1987 and had made enquiries about the incident. This Court noted the deposition of P.W.4 that, on 3.4.1987, Subedar Maj Waman Akde had called him to his office and had asked him to state that the items collected from the barracks had been burnt, that he had refused to oblige Sub.Maj Waman Akde and that D.W.2, Lt.Col. (T.S) D.P. Chakraborthy, who was the officer superior to the petitioner at the relevant time, had stated in his evidence that, before the alleged incident, the petitioner had reported to him twice that Sub.Maj Waman Akde was trying to implicate him in a false case. This Court also noted that, though Sub.Maj Waman Akde was not the petitioner's superior officer in the same Battery at the relevant time, the extraordinary and unusual interest and concern shown by him to call P.Ws.1 to 4 and indicating to them, in the context of the earlier reports made by the petitioner to Lt Col. D.P. Chakraborthy, prima facie indicated that the relationship between the petitioner and Sub.Maj. Waman Akde was strained. This Court observed that the allegations made by the petitioner, that the proceedings came to be initiated at the behest of Sub.Maj. Waman Akde to wreak vengeance for certain personal reasons set out in the affidavit, seemed to be correct. This Court also noted that, despite Lt. Col. D.P. Chakraborthy reporting that there was no truth in the complaint, the Commanding Officer had ordered a Court of Enquiry culminating in the constitution of the G.C.M and, while the G.C.M. in its earlier proceedings dated 28.7.1988 had upheld the objections raised by the petitioner and had dissolved the G.C.M, the petitioner was again charge sheeted culminating in passing of the impugned order and the sentence. This Court noted that there was a consistent and determined effort on the part of the Commanding Officer not to give up but to proceed against the petitioner, even after his retirement, perhaps to appease Sub.Maj.Waman Akde. This Court held that interest of justice, and fairness in action, warranted giving a quietus to the decade old controversy and that subjecting the petitioner to one more enquiry on a truncated charge would not serve any purpose. This court quashed the order of the 3rd respondent dated 16.08.1990 and held that, since the petitioner had succeeded in the enquiry by virtue of the order of the Court, he was entitled to be promoted notionally to higher posts and to the pecuniary and other benefits flowing from such notional promotion or promotions.