Armed Forces Tribunal, Regional Bench, Kochi

ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

O.A.No. 153 of 2016

MONDAY, THE 18TH DAY OF JULY, 2016/27TH JYAISHTAA, 1938

CORAM:

HON'BLE MR. JUSTICE S.S. SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)

APPLICANTS: SHIV KUMAR, AGED 32 YEARS, S/O MALLAPPA, NO.2803050 'K', SEPOY OF INDIAN ARMY, VILLAGE MANASINAKAI, POST: MUSTIGERI, DISTRICT : BAGALKOT, KARNATAKA – 587 206.

BY ADV.SRI. V.K.SATHYANATHAN

RESPONDENTS :

1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI – 110 011.

2. THE CHIEF OF THE ARMY STAFF, COAS'S SECRETARIAT, ARMY HEAD QUARTERS, D.H.Q. P.O., NEW DELHI – 110 011.

3. THE GENERAL OFFICER COMMANDING, HEAD QUARTERS A TN K & K AREA, ISLAND GROUNDS, CHENNAI, TAMILNADU.

4. THE COMMANDER, HQ 112 MOUNTAIN BRIDGE, C/O 56 A.P.O.

5. THE COMMANDANT, THE MARATHA LIGHT INFANTRY REGIMENTAL CENTRE, C/O 56 A.P.O.

BY ADV.SRI.K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL O.A.No. 153 of 2015 -: 2 :-

ORDER

Satheesachandran, Member (J):

The applicant, Sri. Shiv Kumar, a Sepoy, who was dismissed from Army service, has filed the above application under Section

14 of the Armed Forces Tribunal Act, 2007 (for short 'the Act').

2. The present application is the second round of litigation challenging the order of dismissal passed against the applicant, with the previous application disposed of with some directions by this Tribunal. In short, the applicant with some others was proceeded against imputing that they had entered in Army service through unfair means amounting to fraudulent enrolment.

To the show cause notice issued why their services should not be terminated, the applicant and another admitted their guilt, while the others denied the guilt. All of them were dismissed under

Section 20(3) of the Army Act read with Rule 17 of the Army

Rules. Those Orders of dismissal were challenged by them filing Original Petitions before the High Court, which were O.A.No. 153 of 2015 -: 3 :-

later transferred and renumbered as Transferred Applications before this Tribunal. Such Transferred cases numbered as

T.A.Nos. 232 of 2010 to 239 of 2010 and 4, 5 and 83 of 2011, after hearing both sides, were disposed under a Common Order dated 14th June 2013, by which the orders of dismissal passed against most of them, except that of the applicant (T.A.No. 5 of

2011) and another (applicant in T.A.No. 4 of 2011) were quashed directing their reinstatement in service granting liberty to the respondents to proceed against them afresh in accordance with law subject to the observations made in the

Order. In the case of present applicant (Applicant in T.A.No. 5 of

2011) and that the applicant in T.A.No.4 of 2011, their applications were partly allowed directing the respondents to reconsider their request to continue in service in terms of

Section 122(4) of the Army Act and take appropriate decision expeditiously. Pursuant to that order, considering the case of the applicant afresh, the respondents have passed Annexure A7 order holding that no ground existed to alter the previous decision of his dismissal from service. Challenging Annexure A7, O.A.No. 153 of 2015 -: 4 :-

with that of the previous order of his dismissal, Annexure A4, the applicant has filed the present O.A. for setting aside those orders and for his reinstatement in service.

3. The applicant was enrolled in the Indian Army on 10th

May, 2002 and after successful training he was attested as a

Sepoy. Five years later he was proceeded on the allegation that he had indulged in malpractice of engaging another person to appear on his behalf to write the CEE Examination. To the show cause notice issued he submitted a reply, where he highlighted the period of his service, his poor family background and liability to maintain his parents, without making any reference to the charge. After consideration of his reply he was dismissed from service under Section 20(3) of the Act read with Army Rule 17.

This Tribunal, considering the challenges raised by him in his previous T.A. No.5 of 2011 with connected cases, had passed a

Common Order, Annexure A6, by which his T.A. was partly allowed with directions to the respondents to reconsider his case O.A.No. 153 of 2015 -: 5 :-

in terms of Section 122(4) of the Act. Operative portion of the above Order reads thus:

“43. The Transferred Application Nos. 4 of 2011 and 5 of 2011 are partly allowed. The respondents are directed to reconsider the cases of these applicants with regard to their request to continue in service in terms of Army Act Section 122(4) and take appropriate decision expeditiously, and communicate the same to them. In case these two applicants are allowed to continue in service in terms of Section 122(4) of the Army Act notwithstanding the fraudulent enrolment, in that eventuality, the dismissal/discharge order of these applicants shall be treated to be nonest with effect from their respective dates of dismissal/discharge and they shall be treated to be in service as if the dismissal/discharge/termination had not come into operation. But, they will not be entitled to any pay and allowances for the period during which the order of dismissal/discharge/termination remains in operation.”

Based on the above Order respondents reconsidered the request of the applicant for continuance in service, but turned it down under Annexure A7 order. Propriety, correctness and legality of that Order is challenged in this O.A. O.A.No. 153 of 2015 -: 6 :-

4. We heard learned counsel for the applicant,

Shri.V.K.Sathyanathan and learned Senior Panel Counsel

Shri.K.M.Jamaludheen, representing the respondents.

5. Para 4 of Annexure A7 order turning down the request of the applicant for reinstatement in service reads thus:

“4. The contents of the above Tribunal Order have been examined in detail and the following is intimated for your information:-

(a) That your dismissal from service on 09 July 2007 was sanctioned based on Reply to Show Cause notice given by you on 30 Jun 2007, admitting your involvement in the malpractice at the time of your enrolment and your enrolment by unfair means and regretting the mistake and requesting to give another chance to serve so that your family could survive.

(b) That in compliance of above Tribunal Order, your reply to show cause notice dated 30 Jun 2007 requesting to continue in service has O.A.No. 153 of 2015 -: 7 :-

been reconsidered in terms of Army Act Section 122(4). However, I did not find any strong grounds to alter the previous decision. Hence, your request for reinstatement and continue in service with all consequential benefits is not considered as you were involved in a serious case ie, malpractice at the time of enrolment as established by the Court of Inquiry and you have also accepted the same. Further, you have not served in an exemplary manner in your five years and two months of service for me to re-consider your request.”

6. The question emerging for consideration is whether the respondents have reconsidered the request of the applicant for reinstatement in service in terms of Section 122(4) of Army Act as directed by the Tribunal in the Order passed in the previous

T.A. Tribunal has specifically directed the respondents to reconsider the request of the applicant and another (applicant in

T.A.No. 4 of 2011) for continuance in service in terms of Section

122(4) of the Army Act. Section 122 of the Army Act prescribes the period of limitation for trial of the offences covered by the

Act. To appreciate sub section (4) of Section 122 it is necessary O.A.No. 153 of 2015 -: 8 :-

to have a close reading of the entire section, which reads as follows:

“S.122. Period of limitation for trial.- (1) Except as provided by sub-section (2), no trial by court-martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years [and such period shall commence,

(a) on the date of the offence; or

(b) where the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier; or

(2) The provisions of sub-section (1) shall not apply to a trial for an offence of desertion or fraudulent O.A.No. 153 of 2015 -: 9 :-

enrolment or for any of the offences mentioned in section 37.

(3) In the computation of the period of time mentioned in sub-section (1), any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded.

(4) No trial for an offence of desertion other than desertion on active service or of fraudulent enrolment shall be commenced if the person in question, not being an officer, has subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the regular Army.”

Sub section (1) of Section 122 mandates that no trial by a Court martial shall be proceeded with after the expiration of the period of three years (a) on the date of the offence; (b) where the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier; or O.A.No. 153 of 2015 -: 10 :-

(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the authority competent to initiate action, whichever is earlier. An exception is carved out over the period prescribed as above under sub-section (2) with respect to trial for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in Section 37 of the Act. Sub section (3) further provides for excluding the period spent by a person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, in computing the period of time under sub section (1) of the

Section. Though sub section (2) excludes the offence of desertion or fraudulent enrolment and offences mentioned in

Section 37 from the purview of the period of three years fixed under sub section (1) as applicable under (a) to (c) specified thereunder, sub section (4) of the section interdicts the trial for an offence of desertion other than desertion on active service or of fraudulent enrolment of a person, not being an officer, if he has subsequent to the commission of the offence served O.A.No. 153 of 2015 -: 11 :-

continuously in an exemplary manner for not less than three years with any portion of the regular Army. Analysis of the various provisions covered by the Section clearly demonstrate that though the period of limitation as such is not applicable for trial of an offence of desertion or fraudulent enrolment or for any of the offences mentioned in Section 37 of the Act trial for 'an offence of desertion other than desertion on active service or of fraudulent enrolment' is interdicted if the person in question, not being an officer, has subsequent to the commission of the offence served continuously in an exemplary manner for not less than three years with any portion of the regular Army.

7. The Tribunal in the previous T.A.s moved by the applicant with some others similarly placed, all proceeded with imputation of fraudulent enrolment, and dismissed from service, set aside the orders of dismissal of some applicants, other than the present applicant and another (applicant in T.A.No. 4 of

2011), directing their reinstatement in service. Accepting the challenges against the orders of dismissal of the applicant and O.A.No. 153 of 2015 -: 12 :-

another (applicant in T.A.No. 4 of 2011) the Tribunal allowed their applications partly directing the respondents to reconsider their request for continuance in service in terms of sub section (4) of

Section 122 of the Act. The applicants in the previous T.A., all of them, had been dismissed under Section 20(3) of the Army Act read with Rule 17 of the Army Rules following the procedure of issuing them show cause notice imputing them of obtaining fraudulent enrolment and, later, turning down their replies as unsatisfactory. The applicants had served for more than five years at the time when they were proceeded with imputing fraudulent enrolment apparently weighed with the Tribunal in considering the merits of the challenges canvassed against the order of their dismissal and in the case of those applicants who had denied the imputation of fraudulent enrolment as such in the reply to their show cause notice the Tribunal found that the orders passed against dismissing them from service was unjustified, and accordingly, those orders were set aside directing their reinstatement in service, however, without any back wages.

In the case of the applicant and another, who are stated to have O.A.No. 153 of 2015 -: 13 :-

admitted their guilt in the reply to the show cause notice, the

Tribunal directed to consider their request for reinstatement in service with reference to Section 122(4) of the Army Act. When these applicants had served for more than a period of five years as and when they were proceeded against for the offence of fraudulent enrolment orders of dismissal passed against them issuing a show cause notice and collecting replies was found not acceptable and, accordingly, the respondents were directed to consider their case with reference to the question whether they could be prosecuted for such offence proceeding with court martial, but, in terms of Section 122(4) of the Act. When request of the applicant and another for reinstatement in service was directed to be decided in terms of Section 122(4) of the Act by the Tribunal, what is the purport and spirit of that direction was either not understood or given a complete go-by by the respondents while passing Annexure A7 order reiterating the order of dismissal of the applicant rejecting his request for reinstatement in service. O.A.No. 153 of 2015 -: 14 :-

8. In case the applicant is to be proceeded for the offence of fraudulent enrolment, then it has to be dealt with by conducting a Summary Court martial against him, but that has to be done taking into account the salutary provision under Section

122(4) of the Act that no such trial for such offence should be proceeded with in case he had served continuously in an exemplary manner for not less than three years with any portion of the Army subsequent to the commission of the offence. A close scrutiny of sub section (4) of Section 122 with other provisions of that section, particularly sub section (1) and

(2), makes it abundantly clear that though no period of limitation is prescribed to proceed with a case of fraudulent enrolment, no trial by court martial thereof shall be commenced against the person in question if he had served continuously in an exemplary manner for not less than three years in Army service after commission of the offence. Without looking into those aspects and without carrying out any exercise as required under Section

122(4) of the Act over the question whether the applicant who had served five years in the Army after his enrolment when he O.A.No. 153 of 2015 -: 15 :-

was proceeded for the offence of fraudulent enrolment, his request for reinstatement in service was turned down under

Annexure A7 order simply stating that such request “has been reconsidered in terms of Army Act Section 122(4).” Only on satisfaction that he has not rendered continuous service in an exemplary manner for not less than three years in the Army service, trial can be proceeded against him when he had already served for a period of five years after enrolment. The respondents who were directed to consider that specific question by the Tribunal under the previous Order without doing any exercise thereof turned down his claim for reinstatement in service holding that 'no reason has been made out to alter his dismissal'. Previous decision of his dismissal under Section 20(3) of the Army Act r/w. Rule 17 of the Army Rules challenged by him in his previous T.A, was in fact annulled when a direction was issued to consider his reinstatement in service with reference to Section 122(4) of the Act. The direction indicated that if at all he has to be proceeded for the offence of fraudulent enrolment a trial by a court-martial has to be conducted irrespective of his O.A.No. 153 of 2015 -: 16 :-

plea of guilt stated to have been made in his reply and the question of such trial has to be determined in terms of Section

122(4) of the Act, which prohibits such trial in case he had continuously served in an exemplary manner for a period of three years subsequent to the commission of the offence. Bypassing

Section 122(4) of the Act and without any trial by a court-martial the respondents passing Annexure A7 order have reiterated the previous decision of his dismissal from service holding that there existed no strong ground to alter the previous decision.

Annexure A7 order is patently irregular ad unsustainable, and it is liable to be set aside.

9. In the given facts of the case, we do not find any circumstance worthy of consideration to permit the respondents to have a further exercise with reference to Section 122(4) of the

Act to determine whether a trial of the applicant by a court- martial for the offence of fraudulent enrolment is necessary. The applicant has remained out of service for quite long time and almost all the others, except the applicant and the applicant in O.A.No. 153 of 2015 -: 17 :-

T.A.No. 4 of 2011, proceeded for the same offence on similar ground have been reinstated in service by virtue of the orders passed by this Tribunal in the earlier proceedings, and, the respondents, despite being given a chance to consider his trial in terms of Section 122(4), have not carried out such exercise persuade us to hold that further prosecution of the applicant on the imputation made may not be conducive to justice as it is likely to cause irreparable injury to him. He was dismissed after continuing in service for five years from his enrolment. He could have been punished only after a trial by court-martial for the offence imputed and such trial required to be analysed in terms of Section 122(4) of the Act was the decision of the Tribunal in the previous order and it was totally discarded in passing

Annexure A7 order reiterating the previous order of dismissal.

10. Setting aside Annexure A4 order of dismissal and

Annexure A7 order, the applicant is directed to be reinstated in service within a period of two months from the date of receipt of a copy of this Order. The applicant, however, will not be entitled O.A.No. 153 of 2015 -: 18 :-

to any backwages during the period he remained out of service,

but will have continuity of service with effect from the date of his

dismissal.

11. The O.A. is allowed.

12. There will be no order as to costs.

13. Issue free copy of this order to both sides.

Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN, MEMBER (A) MEMBER (J) tm.

14. After pronouncement of the order, learned counsel for

the respondents requested for leave to appeal to the Supreme

Court. In our opinion, no question of law of general public

importance is involved in the matter. Hence leave requested for

is refused.

Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN, MEMBER (A) MEMBER (J) tm /True copy/ Prl. Private Secretary