Judgment:
SadhanKumar Gupta, MEMBER (Judicial)
1. Initially, the writ petition was filed before the Honble Orissa High Court by the applicant. It was subsequently transferred to this Tribunal, as per provisions of the Armed Forces Tribunal Act, 2007 and re-numbered as TA 194 of 2010.
2. The case of the applicant is that he entered into the military service on 7.3.87 and was discharging his duties with honesty, dignity and devotion. Due to the serious illness of the mother of the applicant, she was advised for operation and for that reason, the applicant came to his native place on 16.12.93 on leave. However, as the condition of his mother deteriorated, so, he could not join his duty in time. For that reason, the period for which he over-stayed, was treated as absence without leave. On 3.2.94, the applicant returned back to his place of posting, when he was directed to remain in military custody. A court of enquiry was held and thereafter, summary of evidence was recorded. On the basis of such summary of evidence, charge was framed and direction for holding summary court martial was passed. The applicant faced the summary court martial proceeding. Upon conclusion of such proceeding, the applicant was declared guilty and was dismissed from service. The applicant has claimed that during the summary of evidence, he was not allowed to cross-examine the witnesses, nor was he afforded any opportunity to produce evidence on his side. On the contrary, the applicant has claimed that he was compelled/forced to sign some papers, which were converted to be the statement of defence of the applicant and on the basis of that, the finding of guilt was passed by the court martial authority. According to the applicant, since the proceeding of the court martial was conducted in an arbitrary way and without allowing any opportunity of hearing to the applicant, so the finding of such proceeding should be quashed and the order of dismissal from service, as passed in the said court martial proceeding, should be set aside and the applicant should be reinstated in service along with full back wages.
3. The application was contested by the respondents by filing counter affidavit wherein they denied the allegations, as made by the applicant, on all material points. It is the case of the respondents that the applicant was a habitual offender and for that reason, he was punished and warned on earlier four occasions. In spite of that, the applicant did not improve his conduct and instead preferred to remain absent without leave and for that reason, the authorities concerned decided to hold a summary court martial proceeding. According to the respondents, when the summary of evidence was recorded, opportunity was given to the applicant for cross-examining the witnesses but he declined. It is the further case of the respondents that the applicant was allowed to produce evidence in his defence, which also he declined. They have further claimed that during the summary court martial proceeding, when the charge was read over and explained to the applicant, he pleaded guilty of the said charge and such plea being voluntary in nature, was accepted by the Presiding Officer and on the basis of that, the applicant was found guilty and the sentence of dismissal from service was passed. According to the respondents, there was nothing illegal in conducting the court martial proceeding and as such, they have prayed for dismissal of the applicant with cost.
4. We have considered the submissions of the ld. Advocates for both the sides and also perused the relevant papers, as produced in connection with this hearing. It is the admitted position that the applicant over-stayed when he went on leave. The applicant has claimed that due to his mothers serious illness, he could not resume his duty in time. However, in support of such contention, the applicant has failed to produce any documentary evidence whatsoever. Even the applicant did not care to give intimation to the concerned authority that due to unavoidable circumstances, he could not resume his duty. All these facts certainly lead us to the conclusion that the applicant deliberately over-stayed without giving intimation to the concerned authority.
5. Be that as it may, it appears that in the counter affidavit, it has been clearly stated that on earlier four occasions, due to similar activities, the applicant was punished and as such, according to the respondents, the applicant being a habitual offender, there was no other way out than to start summary court martial proceeding against him. This factual aspect could not be denied by the applicant in his rejoinder wherein he practically admitted such claim of the respondents by mentioning that whatever fact situation stated in the said paragraph of the counter affidavit, was partly correct and as such, we have go not hesitation to come to the conclusion that the claim of the respondents that the applicant is a habitual offender, must be accepted. However, so far as this hearing is concerned, we are to confine ourselves with the decision of the summary court martial proceedings. From the documents it appears that when the summary of evidence was recorded, opportunities were given to the applicant to cross-examine the witnesses, which he declined. It may be mentioned here that the applicant was assisted by a âfriend of the accused, who was present at the time of such recording. Again, if we look into the court martial proceeding, then it will appear that when the charge was explained and read over to the applicant, he preferred to plead guilty. In recognition of such plea, he put his signature on the relevant page of the order sheet. It is unbelievable that the applicant would sign in the paper wherein his plea was recorded without understanding its contents, he being a literate person. It further reveals from the order-sheets of the court martial proceedings that the Presiding Officer certified that before recording such plea, the contents of the charge were explained to the applicant and he was told about the implication of such plea of guilt. Under such circumstances, we have got no hesitation to hold that the plea of the applicant was correctly recoded. Since the applicant pleaded guilty, so, it was not at all necessary for the Presiding Officer to pass direction for production of prosecution and defence witnesses also. Moreover, the order sheets further reveal that the applicant preferred not to the make any statement before the Presiding Officer.
6. According to the applicant, all those things, which have been mentioned in the order sheets, are concocted and fraudulently prepared and he insisted that the decision of the court martial proceeding was arrived at without affording any opportunity to the applicant to cross-examine the witnesses. However, nothing has been mentioned in the application as to why the applicant pleaded guilty before the Presiding Officer. It is unbelievable that the Presiding Officer, who was assisted by the friend of the accused as well as by an independent witness, would unnecessarily record those things without any reason whatsoever. There is nothing on record to show that the Presiding Officer had any bias against the applicant. On the contrary, it appears from the record that the applicant on four other earlier occasions also, was punished due to such type of lapse. To our mind, it has been clearly established by the respondents that the applicant being a habitual offender, was rightly dealt with in the summary court martial proceeding and the decision so arrived at, was absolutely justified. It appears that the applicant has preferred an appeal with the appellate authority, who after considering the materials on record, was pleased to reject such appeal.
7. Therefore, from our above discussions, we are of the opinion that the Presiding Officer of the summary court martial proceeding rightly came to the conclusion that the accused/applicant was guilty of the offence charged with and he being a habitual offender, rightly passed the sentence of dismissal from service. It may be pointed out here that the applicant belonged to a disciplined service where indiscipline in any form whatsoever cannot and should not be tolerated. The conduct of the applicant sufficiently proved that he deserved such punishment and in our considered opinion, the punishment so awarded against the applicant should not be interfered with by this Court. To our mind, the decision of the court martial proceedings should stand and the application, as preferred by the applicant, should not be entertained.
8. In the result, the application is dismissed on contest but without cost.
9. Let a plain copy of this order be handed over the ld. Advocates for both the sides.