BIR BAHADUR CHHETRI Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. B.C. Das, learned counsel for the petitioner and Mr. C. Choudhury, learned Sr. CGSC appearing on behalf of the Union of India/respondents.

(2.) The writ petitioner while working as Havildar in 10th Assam Rifles, at Mokokchung, Nagaland, on 9/10.11.1994 along with 30 other personnel including one Junior Commanding Officer (JCO) were deployed to perform the Road Opening Patrol at Mariani-Mokokchung Road from 25 KM Post to Desai Bridge and the said Patrol party was ambushed by insurgents. In the said ambush the Patrol leader was killed on the spot. But during such ambush the petitioner who was in Second-in-Command instead of facing the insurgents showing cowardice ran away from the spot. As a result of said ambush, the insurgents were capable of snatching away three weapons and ammunitions from the casualties by making good their escape. Immediately thereafter a Court of inquiry was held on 25.11.94 and it opined that a disciplinary action had to be initiated against the petitioner including the other Jawans for such cowardice action. Thereafter on 8.10.95, after one year of court of inquiry, a summary of evidence was directed to be recorded by the Commandant/respondent No. 4 under Rule 23 of the Army Rules, 1954 (for short "the Rules") by supplying a copy of tentative charge-sheet. The order dated 8.10.95 along with tentative charge sheet are extracted as under:

(3.) On 31.1.98 to the utter surprise and dismay to the petitioner, the respondent No. 3 after more than 3 (three) years from the date of incident, issued show cause notice to him as to why service of the petitioner should not be dismissed under Section 20(3) of the Army Act, 1950 (for short 'the Act') for the offence, referred to above, committed by him stating in para 2 of the said show cause that "After perusal of Summary of Evidence it is found that you have committed the above said offence. Since disciplinary action cannot be taken at this stage as the offence committed by you has become time barred. It has been decided to dismiss you from the service administratively under the provisions of Army Act Sec. 20(3)." The petitioner submitted his reply to the said show cause on 20.2.98. Thereafter the authority, respondent No. 3 passed the impugned order dated 4.3.98 (Annexure- VII to the writ petition) dismissing the petitioner from the service. The impugned order dated 4.3.98 reads as follows :- Headquarters Nagaland Range (North) Assam Rifles C/0 98 APO A/211/1/98/929 04 Mar 98 No. 102999 YHav/GD Sir Bahadur Chhetri 10 Assam Rifles C/O 99 APO ORDERS BY IC-23358 L BRIG A K VERMA, COMMANDER 7 SECTOR 1. I have considered the reply to the show cause notice submitted by you. 2. I find that you, for while being the second-in-command of the Road opening patrol, improperly omitted to take command and control of the Patrol after JC-102272N Subedar Jagar Singh Rawat of the same unit, the leader was fatally shot at by the insurgents, resulting in insurgents taking away the following arms and ammunition : <FRM>JUDGEMENT_263_GAULT1_2003Html1.htm</FRM> (3) In exercise of the powers vested in me under sec. 20 sub sec 3 read with AR 17, I hereby order that you be dismissed from service wef 15 Mar 98. Sd/- Illegible (A.K.Verma) Brig DIG Assam Rifles"