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The Armed Forces Tribunal, Regional Bench, Guwahati Oa No. 36 of 2012

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The Armed Forces Tribunal, Regional Bench, Guwahati Oa No. 36 of 2012 Page 1 of 10 THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, GUWAHATI O.A. NO. 36 OF 2012 P R E S E N T HON’BLE MR. JUSTICE H.N.SARMA, Member(J) HON’BLE CMDE MOHAN PHADKE (Retd), Member(A) No. 4366302 NK Lalthaulung, Village Zeliangrong, PO Dimapur, PS Dimapur West, Nagaland, PIN 797112. … Appellant Mr. Thomas E.I, Legal practitioner for Appellant -Versus- 1. The Union of India, through the Secretary, Ministry of Defence, New Delhi. 2. The Commanding Officer, Assam Regiment, C/O 4 Assam 56 APO 3. Major Shri Pushkar, 4 Assam Regiment, C/O 56 APO. … Respondents. Mr.N. Barua, CGSC Legal practitioner for Respondent (s) Date of Hearing : 31.01.2013 Date of Judgment & Order: 31st January, 2013 JUDGMENT & ORDER Page 2 of 10 (Oral) (HN Sarma J) The applicant, Ex Naik Lalthaulung, was enrolled in the Assam Regiment of Indian Army as General Duty Rifleman on 28.03.1998. He served in various high altitude, field/operational areas during 1999, 2000, 2002, 2003, 2004, 2006, 2007, 2010 and 2011 as per Pages 10 & 11 of service record. He was awarded the High Altitude Medal with Claps (J&K) on 13.04.2000, Siachen Glacier Medal with Claps on 25.03.2000, Operation Vijay Medal (J&K) on 23.06.1999, Samanya Seva Medal with Claps for Operation Rakshak on 20.09.2006 and Sainya Seva Medal with Claps (J&K) and 9 years Long Service Medal with effect from 28.03.2007. 2. During his service in High Altitude/field /operational areas, he is seen to have served in Jammu and Kashmir, Assam, Bhutan and Nagaland and participated in ‘Operation Rakshak’; ‘Operation Vijay”; “Operation Meghdoot” and “Operation Parakram”. That apart, as per the individual he also took part in the operations against the Maoists and ULFA. 3. When the applicant was serving in the operational area of Siachen Glacier for about 10 months, he met with an accident involving a grenade explosion at the firing range. As per the injury report, the individual had gone for repairing a target at the firing range and while he was returning back along with a colleague, an old grenade under the ground suddenly exploded and caused injuries to him and his colleague. The injury report shows that he suffered multiple splinter injuries with compound fracture tibia, fibula (right). The injury report Page 3 of 10 describes the injury to be ‘severe’. The report also indicates that a Court of Inquiry was held to enquire into the matter and perusal of the proceedings of the Court of Inquiry pertaining to the said incident, from the record produced before us, reflects the following findings and opinion of the Court of Inquiry:- “FINDINGS OF THE COURT 1. On examining the witnesses the court found that- (a) No.4366302K Sep Lanthanlung and No.4366826F Lienjang Gangte were detailed for tgt repair during fd firing on 08 Dec 2000 at Tartar Range. (b) While returning from the butt to the firing point at approx 0830 hrs on 08 Dec 2000, Sep Gangte accidentally stepped on a blind grenade which exploded immediately. (c) At that moment Sep Lanthanglung and Sep Gangte were walking together. Sep Lalthanglung sustained severe injuries in his right leg which started bleeding profusely. (d) Sep Lalthanglung was taken to the MI Room and then the ADS, Tangtse. From there he was evac by hcptr to 153 GH and finally to Comd Hospital. OPINION OF THE COURT 1. On studying the various facts brought out by the witnesses the court is of the opinion that :- (a) No.4366302K Sep Lanthanlung sustained an injury in his right leg while at the fd firing range on 08 Dec 2000 (b) The injury was an accident and unavoidable. (c) The injury is attributable to unit service.” 4. As per the Medical Board proceedings dated 13.07.2002, the injury was considered to be attributable to the Page 4 of 10 military service and the percentage of disability was assessed at 20%. As per further Medical Board proceedings of 2006 he continued in Low Medical Category with effect from 27.03.2006. The latest Medical report on records appears to be of 26.04.2010. In this report again the individual was continued in Low Medical Category S1H1A2P1E1. This report also shows that the invaliding disability “Compound Fracture Tibia and Fibula (RT)” was suffered on 08.03.2000 in Jammu and Kashmir and on the question of attributability restated the decision of the initial recommendation of the Medical Board which had recommended the disability to be attributable to the military service. 5. Notwithstanding the disability- that the individual had suffered in operational area of Siachen Glacier in Jammu and Kashmir- the individual further served in field/ operational and high altitude areas on several occasions as mentioned above. It was while serving with 4 Assam, the individual was granted 30 days leave from 16.08.2011 to 13.09.2011 vide Leave Certificate dated 13.08.2011 issued by Adm Officer SD Bn NCC, Nizamuddin, New Delhi. As per the endorsement on the leave certificate, the individual was to report back by 14 September 2011 (F.N) at South Delhi Bn NCC. At the same time, however, it is seen from the movement order (undated) issued by one VD Khajuria Capt adjt (for CO 4 Assam, C/o 99 APO) that the individual was to proceed to the destination “known to the individual” and in the remarks column of this movement order it is stated- “proceeding on temporary duty as Sahayak of Maj Pushkar Negi”. This movement order would appear to indicate that the individual was not to report back at Delhi, but to remain on temporary duty as Sahayak of Maj Pushkar Negi. It Page 5 of 10 was on the strength of this movement order and leave certificate that the individual appears to have reported to Assam Regimental Center, Shillong. As, however, he was four days late in reporting, he was issued with a fresh movement order with direction to report to 4 Assam with remarks “Indl over stayed leave granted to him by 2 ASSAM. Indl reported to this Centre on 19 Sep 2011 at 1600 hrs. Indl hereby directed to report to 4 ASSAM for further disposal.” 6. In the prevailing condition, the individual appears to have left for home from where he issued the letter Annexure-5 dated 11.11.2011 whereby he objected to being declared a deserter and contended that after declaring him a deserter he was directed to report 4 Assam even though he was a battle casualty and could not have reported to the unit as the unit was in field area and at a high altitude. In response to this letter the individual received a letter dated 19.11.2011 (Annexure-IV to the counter affidavit) saying “you are hereby advised to report either to Assam Regimental Centre or 4 Assam immediately, otherwise you will be dealt with accordingly.” This letter does not clarify the doubt expressed by the applicant about his inability to join the unit at 4 Assam in the field/high altitude area as per medical advice in view of his Low Medical Category. It is in this circumstance that the individual overstayed his leave. His communication in response, as aforesaid, appears to indicate that he did not intend to desert. 7. The Court of Inquiry was conducted by the Commanding Officer, 4 Assam vide BRO Pt I Order No. Ser 15 dated 04.02.2012 “to investigate the circumstances under which No.4366302K NK Lanthaulung became AWL for more than 30 Page 6 of 10 days and to declare him as deserter w.e.f. 04 Nov 2011” The said Court of Inquiry was held on the same date i.e. 04.02.2012 where three witnesses were examined. But, the Inquiry Officer did not deem it necessary to consider his application dated 11.11.2011 that he was not required to go to Kargil due to his medical categorization as stated above. 8. The power to hold a Court of Inquiry in a case is provided in Section 106 of the Army Act, 1950 and procedure in respect thereof is laid down in Rule 180 of the Army Rules. As per Rule 180 whenever any inquiry affects the character or military reputation of a person subject to the Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross-examining any witness whose evidence in his defence of his character or military reputation. It is further enshrined that the presiding officer shall take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of and fully understands his rights, under this rule. But in the instant case, the Annexure-V series of the counter affidavit, as well as the record produced before us by the respondents disclose that the Court of Inquiry was ordered on 04.02.2012 and it was held on the very same day, meaning thereby that it had not complied with the procedure laid down in Rule 180 of the Army Rules. Although there is a statement in the proceedings of the Court of Inquiry to the effect that the provision of Rule 180 has been complied with, but apparently there is no material to show that such Page 7 of 10 provisions were at all complied with and the said statement appears to have been written in a routine manner.
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