Dharambir Kanker vs Uoi & Ors.
- Court
- Delhi High Court
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Reserved on: 17 August, 2026
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Pronounced on: 15 October, 2026
# CNR No. DLHC010222522003
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W.P.(C) 2433/2003
EX HAV DHARAMBIR KANKER
NO. 7773723L
RESIDENT OF VILLAGE & PO GHIRAI
DISTT HISAR (HARYANA) .....PETITIONER
Through: Mr. S.S. Pandey, Ms. Priyanka
Sachdeva and Mr. Roshan Kumar,
Advocates with petitioner in person.
versus
1. UNION OF INDIA, THROUGH IT’S SECRETARY
MINISTRY OF DEFENCE
SOUTH BLOCK, DHQ, NEW DELHI 110011
.....RESPONDENT NO. 1
2. OFFICER IN CHARGE
RECORD OFFICE
CORPS OF MILITARY POLICE
BANGALORE (KARNATAKA)
.....RESPONDENT NO. 2
3. PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS
DAROUPADI GHAT
ALLAHABAD (UP)
Signature Not Verified
Signed By:SHIWANI
NEGI
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.....RESPONDENT NO. 3
4. COL S N AKHADE
COMMANDING OFFICER
4 CORPS OP SIGNAL REGIMENT
C/O 99 APO
.....RESPONDENT NO. 4
Through: Mr. Amit Tiwari, CGSC with Ms.
Ayushi Srivastava, Mr. Arpan
Narwal, Mr. Kushagra Malik and Mr.
Ujjwal Tyagi, Advocates with Major
Anish Muralidhar and Capt Himanshu
Tyagi, Army.
CORAM:
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present petition under Articles 226/227 of the Constitution of
India, 1950, has been filed seeking the following prayers: -
“It is, therefore, most respectfully prayed that this Hon'ble Court may
graciously be pleased to: -
i. Issue a writ in the nature of certiorari by quashing the Court Martial
Verdict dated 22 June 2000.
ii. Issue a writ in the nature of mandamus directing the respondent to
reinstate the petitioner with all consequential benefits.
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iii. To hold Col S N Akhade the commanding officer of 4 Corps Signal
Regiment responsible for the malafied Act while conducting the
disciplinary proceeding against the petitioner in a most biased and
malafied manner.
iv. The petitioner be suitably compensated for the mental and physical
agony he had to face under the circumstances by awarding him Rupees
Five Lacks and respondent no 4 should pay 50% of the said
compensation amount for having acted in a most biased and malafied
manner.
v. Exempt the petitioner from filing of certified copies of the Annexures.
vi. Pass any other appropriate writ order or direction as this Hon'ble
Court may deem just and proper in the circumstances of the case.
For this act of kindness your humble petitioner will always remain
grateful.”
2. The instant petition has been filed by the petitioner against the
punishment awarded to him by Summary Court Martial (SCM) held from
13.06.2000 to 22.06.2000 whereby, the petitioner was sentenced “to be
reduced to ranks and dismissed from service”, which was subsequently vide
order/letter dated 02.08.2001 remitted by Chief of Army Staff on
humanitarian grounds, and it was directed that the petitioner shall be deemed
to have been discharged with effect from the date his dismissal took effect.
Brief Background
3. Brief facts along with list of dates and events in chronological manner
as stated in the present petition are as under: -
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i) The petitioner was enrolled as a Combat soldier in Army on
13.03.1984. During the course of his services, the petitioner was
promoted to the rank of Hawaldar , and posted in 4 Corps Provost Unit
at Tezpur. From 14.01.1999 till 22.02.2000, the petitioner was posted at
Traffic Check Post (TCP). On 22.02.2000, in accordance with Section
26 of the Army Act, 1950, the petitioner-complainant by way of a letter
addressed to Provost Marshal Army alleged aggrievance against his
unit persons/personnels including Maj DK Roy (Commanding Officer),
and 2IC, 4 Corps Pro Unit.
ii) In order to investigate into the allegations made in the said
complaint, a Court of Inquiry (for short, ‘COI’) was ordered by
Headquarter 4 Corps (General Commanding Officer-GOC) on
26.03.2000 in accordance with Rule 177 of Army Rules, 1954, to
collect evidence in respect of the said allegations. The COI was
concluded on 15.04.2000 in which 21 witnesses were examined, and
cross-examined by petitioner; however, he had refused to sign on the
COI proceedings. The inquiry found that the petitioner could not
produce any witness or documentary evidence to substantiate his
allegations as contained in letter addressed by him to Provost Marshal
and said allegations were found to be false and baseless.
iii) GOC 4 Corps agreed with the findings of the COI and directed
that disciplinary action be taken against the petitioner for making a
false accusation against a person subject to the Army Act knowing such
accusation to be false, and accordingly, on 05.05.2000, inquiry report
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was placed before the convening authority for taking disciplinary action
against the petitioner. On 06.05.2000, since the allegations levelled by
the petitioner were against his 2IC and CO (who was otherwise
supposed and had authority to hold disciplinary action), the petitioner
was attached to 4 Corps Op Signal Regiment for programming
disciplinary proceedings. In the meanwhile, the petitioner sought an
interview with GOC 4 Corps which was turned down by Headquarter
of the unit, and a request for posting out of the unit to save his life was
also made by the petitioner by way of an application dated 22.02.2000.
iv) Hearing of charge against the petitioner was conducted on
17.05.2000, and a summary of evidence was ordered by CO of 4 Corps
Op Sig Regt against the petitioner on 09.06.2000 whereby, final
chargesheet was filed. The summary of evidence was sought to be
served on the petitioner for facilitating preparation of his defence;
however, he refused to acknowledge the same.
v) Summary Court Martial proceedings were initiated against the
petitioner on 13.06.2000 which were concluded on 22.06.2000.
Charges were stated to the petitioner, to which he pleaded ‘not guilty’,
and 18 prosecution witnesses were examined in such proceedings.
Opportunity to lead evidence in his defence was given to the petitioner;
however, same was declined by him. Statement of the petitioner under
Rule 58 of the Army Rules, 1954 (akin to Section 313 of the CrPC) was
recorded. On 22.06.2000, sentence was pronounced by the Court.
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vi) On 21.09.2000, the petitioner in accordance with Section 164(2)
of the Army Act, 1950, preferred a petition before the Chief of Army
Staff against the sentence pronounced. The Chief of Army Staff vide
order dated 02.08.2001 found the contentions of the petitioner to be
misconceived and bereft of merits; however, the sentence of the
petitioner was remitted, and it was directed that the petitioner shall be
deemed to have been discharged with effect from the date when his
dismissal took effect.
Previous litigation in the Present Petition
4. The present petition was filed on 21.03.2003. Thereafter, it was
clubbed with other matters and was decided vide common judgment dated
th
25 January 2008. Vide the said judgment, learned Predecessor Bench of this
Court in the present petition along with other connected petitions had
formulated the following questions of law pertaining to Summary Court
Martial, which read as under: -
“ 1. This batch of Writ Petitions raises two common questions of law
pertaining to the Summary Court Martials (SCMs hereafter) of general
importance —(a) whether an SCM can be convened, constituted and
completed by the Commanding Officer (CO for short) of a Unit to
which the accused did not belong and (b) circumstances in which an
SCM can be convened rather than a General Courts Martial (GCM)
or District Courts Martial (DCM) or Summary General Courts
Martial (SGCM) as envisaged in Section 108 of the Army Act 1950
(Army Act for short) .”
5. While dealing with the aforesaid questions of law, the Court had
allowed all the petitions and had set aside the verdict of impugned SCMs on
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the short ground that, it was not convened, constituted, and completed by the
CO of the Unit to which the petitioner(s) belonged. The relevant observations
1
made in Ex. LN Vishav Priya Singh & Ors. v. Union of India , read thus: -
“ 22. An SCM can legitimately be convened where there is grave and
compelling cause for taking immediate action which would be
defeated if reference to a District Court Martial or Summary
General Court Martial is made. In other words, holding of an SCM is
the exception and not the rule. From the multitude of possible offences it
is only those envisaged in Sections 34, 37 and 69, that can be tried by an
SCM, further fortifying the exceptional and extraordinary character of an
SCM. We think it necessary to underscore that it is not proper to convene
an SCM merely because the offence(s) with which a sepoy of the force is
charged finds mention in the enumeration contained in these three
Sections. What is of pre-eminence in convening an SCM is that it should
be found imperative that immediate action is manifestly necessary.
Therefore, it is essential that this factor, viz. need to hold a trial
immediately, is articulated and reasoned out in writing in the order
convening the SCM. Failure to do so would create good reason to quash
the SCM itself. Routinely, and certainly far too frequently, the sentence
passed by SCMs violates the spirit of Regulation 448(c) (supra) thereby
taking away the sepoys' livelihood without affording them the normal
procedural protections of law.
26. In this analysis of the law in the context of the factual matrix
spelt out in the Petitions, we set aside the verdict of the impugned
SCMs on the short ground that it was not convened, constituted and
completed by the CO of the Unit to which the Petitioner belonged.
We are fully mindful of the fact that in Vishav Priya Singh's petition
the situation is a complex one, inasmuch as the allegations have been
levelled against the CO of the Unit to which the Petitioner belongs. If
the CO were to himself convene the SCM it would tantamount to his
being a Judge in his own cause. It has so often been quipped in the
portals of the Court that hard cases should not make bad law.
Therefore, solution may lie in constituting any other Court Martial,
1
2008 SCC OnLine Del 95 : (2008) 147 DLT 202
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on an emergency footing if the circumstances so dictate. None of the
Petitioners have been charged with the most reprehensible offence
conceivable in the Armed Forces, that is of Desertion. Even if so charged
it would have to have been further established, as a pre-condition for the
holding of an SCM by the CO of the Unit to which the Petitioner was
attached, that the CO of the Unit to which the accused belonged was
serving in a high altitude area, or overseas or engaged in counter-
insurgency operations or active hostilities or in Andaman and Nicobar
Islands. We clarify that since the trial is non est , the Respondents shall be
free to proceed against the Petitioners de novo in accordance with law.”
(emphasis supplied)
6. Regarding the other question of law , i.e., (b) - the circumstances in
which the SCM can be convened rather than a General Courts Martial (GCM)
or District Court Martials (DCM) or Summary General Courts Martial
(SGCM) as envisaged in Section 108 of the Army Act, 1950, it was observed
by the learned Predecessor Bench that, same can be legitimately convened
where there is grave and compelling cause for taking immediate action which
would be defeated if reference to a DCM, or SGCM is made. However, the
verdict of impugned SCMs were set aside on the short ground that it was not
convened, constituted and completed by the CO of the Unit to which the
petitioner belonged.
7. The aforesaid judgment passed by learned Predecessor Bench was
challenged by the Respondents before the Hon’ble Supreme Court, and vide
2
judgement reported as Union of India v. Vishav Priya Singh , the present
petition was remanded back to this Court, by observing as under: -
“ 21. Section 116 of the Act empowers the CO of any Corps,
Department and Detachment of the regular Army to hold an SCM
2
(2016) 8 SCC 641
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and specifically states that he alone shall constitute the Court. Sub-
section (2) then prescribes that the proceedings shall, however, be
attended throughout by two other persons specified therein.
However, such persons are not to be sworn or affirmed. Unlike
Sections 113, 115 and 114, where composition of the Court Martial
concerned is prescribed to consist of at least three officers, it is the
CO alone who constitutes the Court under Section 116 in respect of
SCM. Further, under Rules 39 and 40 of the Rules, CO of the
accused, or of the Corps to which the accused belongs is specifically
disqualified for serving on a GCM or DCM and composition of a
GCM ought to compose of officers of different corps or departments.
However, no such restriction applies to SCMs and in fact the CO
himself must constitute the Court. The Act has thus given drastic
power to one single individual, namely, the CO who alone is to
constitute the Court. No doubt, this power comes with restrictions
insofar as the power to award sentence is concerned in terms of sub-
sections (4) and (5) of Section 120. However, even with such
restrictions the power is quite drastic. The reason for conferment of
such power is obvious that in order to maintain discipline among the
soldiers and units, the CO must have certain special powers, for it is
the discipline which to a great extent binds the unit and makes it a
cohesive force.
22. The High Court of Delhi was therefore completely correct in
observing that such power must be exercised rarely and when it
is absolutely imperative that immediate action is called for. The
satisfaction in that behalf must either be articulated in writing or be
available on record, specially when the matter can be considered on
merits by a tribunal, with the coming into force of the Armed Forces
Tribunal Act, 2007.
33. It is noticeable that the expression “to which the accused
belongs” finds mention in Rule 39 of the Rules as dealt with
hereinabove in the context of GCM or DCM but not with respect to
SCM. Under Rule 133 of the Rules the proceedings of an SCM must
immediately on promulgation be forwarded through the Deputy
Judge-Advocate General of the command “in which the trial is
held”. On the other hand, under Rule 146 of the Rules the
proceedings of an SCM must be preserved with the records of the
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corps or the department “to which the accused belonged”. It is thus
possible and well contemplated that the trial by SCM may be held in
a unit other than the one to which the accused belongs. Rules 39 and
146 further disclose that wherever the statute wanted to specify the
unit or department “to which the accused belonged” it has done that
with great clarity. No such qualification is specified in respect of the
CO who is to convene, constitute and complete the SCM.
35. In the premises, we hold that it is not imperative that an SCM be
convened, constituted and completed by CO of the unit to which the
accused belonged. It is competent and permissible for the CO of
the unit to which the accused was attached or sent on
attachment for the purposes of trial, to try such accused by
convening, constituting and completing SCM in a manner
known to law i.e. strictly within the confines of Sections 116 and
120 of the Act and other statutory provisions. We fully endorse
and affirm the view taken by the High Court that SCM is an
exception and it is imperative that a case must be made out for
immediacy of action. The reasons to convene an SCM must be
followed by well-articulated reasons or the record itself must
justify such resort.
37. Since the High Court of Delhi had allowed the writ petitions
on the short ground of competence of a CO of a unit other than
the one to which the accused belonged, without going into the
merits of the matters before it, while setting aside the view in
respect of that point and allowing the appeals preferred by the
Union of India, namely, Civil Appeals Nos. 8360, 8830-35 and
8838 of 2010, we remit the matters back to the High Court. The
writ petitions concerned stand restored on the file of the High
Court for consideration on merits..”
(emphasis supplied)
8. The Hon’ble Supreme Court in paragraph 22 upheld the view taken by
the learned Predecessor Bench with respect to second question of law , i.e ., the
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circumstances in which the SCM can be convened rather than GCM or a
DCM, or SGCM as envisaged in Section 108 of the Army Act. It was further
observed that such power must be exercised rarely, and when the same is
absolutely imperative that the immediate action is called for and it was further
observed that the satisfaction in that behalf should be recorded in writing or
be available on record especially when the matter can be considered on merits
by a Tribunal. Subsequently, on a review application filed on behalf of the
respondents/UOI seeking review of the aforesaid judgment dated 05.07.2016,
3
the Hon’ble Supreme Court in Union of India v. Vishav Priya Singh , while
clarifying the earlier judgment on 16.02.2017, had observed and held as
under: -
“4. The thrust of the review petition is against the observations made
by this Court, in paragraphs 20 and 33 of the Judgment under
review, which are quoted here :-
“20. The High court of Delhi was therefore completely correct in
observing that such power must be exercised rarely and when it is
absolutely imperative that immediate action is called for. The
satisfaction in that behalf must either be articulated in writing or
be available on record, specially when the matter can be
considered on merits by a tribunal, with the coming into force of
the Armed Forces Tribunal Act, 2007.”
(emphasis added)
*
“33. …..... We fully endorse and affirm the view taken by the
High Court that SCM is an exception and it is imperative that a
case must be made out for immediate action. The reasons to
convene an SCM must be followed by well articulated reasons or
the record itself must justify such resort.”
(emphasis added)
3
(2020) 14 SCC 518
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5. It is submitted inter alia in the review petition, that neither the
Army Act nor the Army Rules obligate recording of reasons for
convening Summary Court Martial.
6. Relying principally on Section 120 of the Army Act, and the other
relevant provisions and so also the judgment of High Court of Delhi,
which was under appeal, this Court in the Judgment and Order dated
05.07.2016 had made aforesaid observations in paragraphs 20 and
33. We do not find any error apparent on record, calling for any
intervention in our review jurisdiction.
7. However, it is observed, that the requirement, as stipulated in
aforesaid paragraphs 20 and 33, of recording reasons for
convening Summary Court Martial, shall apply on and with
effect form the date of the Judgment namely from 05.07.2016.
Except for this clarification, we are satisfied, that no case for
review of the judgment dated 05.07.2016 has been made out.
8. The review petition is, accordingly, dismissed on the ground of
delay as well as on merits.”
(emphasis supplied)
9. In view of the above, learned counsel for the petitioner has contended
that since the observation of the learned Predecessor Bench, that power to
convene SCM must be exercised rarely and when it is absolutely imperative
that immediate action is called for, has been upheld by the Hon’ble Supreme
Court, the same will still constitute a ground to challenge a SCM convened in
cases where there was no grave and compelling cause for taking immediate
action, as in the present case.
Submissions on Behalf of the Petitioner
10. In addition to the aforesaid, learned counsel for the petitioner has made
the following submissions in support of latter’s case: -
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a. It is submitted that in the year 1998, the petitioner was posted at
Tejpur, Assam and in the same year, the genesis of the present dispute
had arisen when the petitioner refused to participate in illegal activity
of transporting woods from the reserve forest using the Unit Personnel.
th
It is submitted that on 14 October, 1999, when the petitioner was
posted at TCP, Missamari, he received a telephonic call whereby
direction was given to him to accompany other Jawans to Balukpong
jungles for purpose of illegally stealing the timber woods. The
petitioner declined to participate in such illegal activities, and upon
such refusal, he was summoned by Mr. N.K. Tiwari on the instructions
of Maj. DK Roy. It is the case of the petitioner that thereafter, Maj. DK
Roy, specifically and deliberately started targeting the petitioner in
retaliation to not participating in the illegal activity of stealing the
woods from reserve forests which was carried on by him in connivance
with Commanding Officer as well as other Personnel posted in the
Unit.
nd
b. The petitioner being left with no other option, on 22 February,
2000, on account of continuous harassment meted out to him,
submitted an application through proper channel to Provost Marshal, 4-
Corps, CMP, requesting that he may be posted out of the Unit. It is
submitted that since the petitioner was posted out of the Unit in which
COI was undertaken, he was only permitted selective participation and
wrong endorsement was made with respect to his presence in COI,
convened on the basis of complaint made by him. Such an irregularity
with respect to the presence of the petitioner in COI on account of
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posting of the petitioner out of the Unit was brought to the notice of
Superior Authorities by the Petitioner in accordance with Regulation
317 of the Defence Service Regulation, 1987. It is the case of the
petitioner that the Court of Inquiry was predetermined and had
prejudice as well as bias against the petitioner for making allegations in
nd
his application dated 22 February, 2000, which later on become the
basis for initiating disciplinary action against him by way of SCM
proceedings.
c. The direction with respect to disciplinary action being taken
against the petitioner and hearing on charge in pursuance thereof and
summary of evidence prepared was only on paper without ensuring that
the petitioner had participated in the same. It is the case of the
petitioner that there was no urgency for him being tried by SCM as his
Unit was deployed in the peace area and this tactic was used as SCM
can be conducted by single person , i.e., the Commanding Officer, and
he acts as a prosecutor and judge in the same and accused in SCM
proceedings is not allowed to make any legal representation to make
submissions on his behalf. It is further pointed out that Court in SCM is
not even obliged to record its reasons in support of the findings which
otherwise is mandatory in case of GCM/DCM. This as per the
petitioner had completely undermined the fairness of the proceedings
undertaken against him. Despite irregularities, sufficient evidence had
come on record during SCM that the averment in the complaints
submitted by the petitioner against his superior officers had resulted in
his victimization in his Unit.
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d. It is submitted that in the SCM proceedings, the petitioner was
found guilty of eight charges levelled against him and sentenced, “to be
reduced to ranks and to be dismissed from service”. However, on
representation made before the Chief of Army Staff under Section
164(2) of the Army Act, such punishment was converted from
punishment of dismissal to discharge, and the same has resulted in
grant of pension to the petitioner in his reduced rank of Sepoy w.e.f.
nd
22 June, 2000. It is the case of the petitioner that this has caused
grave misjustice to him as the pay of Hawaldar is almost twice to that
of Sepoy, and if he would have been at the rank of Hawaldar than his
th
services would have continued till 2010, by which benefit of 6 CPC
might have enured to his benefit as also extension of benefit of MACP
st
w.e.f. 1 January, 2006. It is the further the case of the petitioner that he
had unblemished service record and would have retired as JCO by way
of promotion; which he could have gained during services.
e. It is further submitted that there are various discrepancies in the
SCM proceedings conducted against the petitioner inasmuch as
beginning from the hearing on charge as also during the course of
examination of witnesses, the petitioner was not present before the
SCM and he was also not afforded any opportunity to effectively cross-
examine the prosecution witnesses. The petitioner was also not
provided any effective legal representation and the name of the persons
referred to as friends of the accused who were provided to him during
the course of SCM proceedings is merely an eyewash as the said memo
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has not been countersigned by the petitioner and there is no
endorsement in contrast to the same.
f. In view of the aforesaid submissions, it is submitted that the
present petition may be allowed and the findings and sentence awarded
by SCM may be quashed. Further direction to re-instate the petitioner
in service for the purpose of grant of consequential benefits with pay
including back wages, continuity of service, seniority as also
promotion, had the petitioner not subjected to SCM along with post-
retirement benefits is also sought.
Submissions on Behalf of the Respondents
11. Learned Central Government Standing Counsel (CGSC) appearing on
behalf of the respondents, while refuting the contentions raised on behalf of
the petitioner, has made the following submissions: -
a) The petitioner herein had preferred a complaint dated 22.02.2000
before the provost Martial HQ 4 corps alleging grievances against his
2IC, Commanding Officer (CO)-Major DK Roy. It is the case of the
respondents that such a complaint ought to have been preferred before
Col. AK Sharma, who was the head of the unit, in accordance with
Section 26 of the Army Act, 1950; however, the petitioner had
addressed the subject complaint to the Corps Commander. Despite the
same, on receipt of such complaint, GOC-General Commanding
Officer in all fairness ordered for a Court of Inquiry to be convened in
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accordance with Rule 177 of the Army Rules, 1954. The purpose of
such COI, as per learned CGSC, was to collect evidence in respect of
the allegations levelled by the petitioner in the complaint dated
22.02.2000 against the superior officers of his unit. It is pointed out that
during the course of such inquiry, 21 witnesses were examined
including 9 independent witnesses. The petitioner being the
complainant had refused to sign his statement despite being furnished a
Hindi translation of his statement made before the said Court of
Inquiry.
b) In compliance with the principles of natural justice, the petitioner
was provided an opportunity to cross-examine the witnesses examined
during the Court of Inquiry in accordance with Rule 180 of the Army
Rules, 1954; however, he had declined to avail such opportunity. It is
further pointed out that the Court of Inquiry had recorded the
personality traits and conduct of the petitioner during the inquiry, and
upon completion, in the findings returned by the COI, none of the
allegations levelled by the petitioner against the superior officers of his
Unit were found to be proved and it was opined by the COI that such
allegations were false and baseless. Such findings/inquiry report was
placed before convening authority, which directed that disciplinary
action ought to have been taken against the petitioner for levelling false
allegations against the superior officers of his unit.
c) It is submitted that in order to ensure fairness and remove any
iota of biasness on the part of disciplinary authority, the petitioner was
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in terms of Army Order 7/2000, attached to 4 Corps Signal Regiment,
which was a different unit, for the purposes of the disciplinary action
proposed against him. Said Army Order 7/2000 was with respect to
attachment of service personnel to Units, for progressing,
disciplinary/vigilance case under the Army Act. Learned CGSC has
further submitted that the petitioner was placed in a different unit,
besides the one in which disciplinary action was proceeded against him,
in order to ensure observation of principles of natural justice inasmuch
as such disciplinary action was primarily initiated on the basis of
complaint dated 22.02.2000 wherein, allegations were levelled by the
petitioner against his commanding officer as well as 2IC, who would
otherwise have held the disciplinary proceedings.
d) It is further pointed out that hearing of the charge during
disciplinary proceedings was done in accordance with Rule 22 of the
Army Rules, 1954, and 9 charges were framed against him. As per
Respondents, summary court martial was conducted in compliance with
Army Rules. The petitioner was also provided within opportunity to be
represented by a friend. However, he had refused/declined to give any
name for friend of accused and refused to accept anyone from the
friend of accused made available to him and the same can be inferred
from the record of SCM proceedings dated 13.06.2000. It is the case of
the respondents that three independent officers were provided to the
petitioner to conduct disciplinary proceedings on his behalf. The
petitioner had himself declined to cross-examine the witnesses except
Maj. DK Roy, who was examined as Prosecution Witness No.9. The
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petitioner was also offered an opportunity to lead evidence and his
statement as the accused was also recorded, and he had answered all the
questions put to him.
e) Reliance has been placed by learned CGSC on a judgement
passed by Hon’ble Supreme Court in Union of India v. Major A.
4
Hussain , to contend that this Court in exercise of its power of
traditional review does not sit as a court of appeal over the proceedings
of a Court Martial, and only procedure followed is to be seen. Further
reliance has been placed on judgement passed by a learned Coordinate
Bench of this Court in Sachin Kumar Solanki (Retd.) v. Union of
5
India , in support of this contention.
f) It is further submitted that opportunity to lead evidence as well
as cross examine the witnesses was offered to the petitioner at every
stage and same was declined by the petitioner.
g) Regarding the query posed by this Court during the course of
hearing with respect to the recording of reasons expedient for
constituting SCM-Summary Court Martial against the petitioner and for
not proceeding under any other clauses mentioned in Rule 22 of the
Army Rules, learned CGSC has relied on an order passed by the
Hon’ble Supreme Court in Union of India & Ors. v. Vishav Priya
4
(1998) 1 SCC 537
5
2026: DHC: 4483-DB
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6
Singh , and has contended that, it has been clarified that the ruling of
law that power to convene SCM should be exercised only in
exceptional circumstances and should be supported by reasoned order
7
as laid down in Vishav Priya Singh , would be applicable from the
date of passing of said judgement , i.e., 05.07.2016. It is submitted that
the proceedings in the present case pertains to the SCM convened in the
year 2000. Thus, there was no occasion for the disciplinary authority
for explicitly recording the reasons for proceedings under SCM against
the petitioner and not any other clauses of Rule 22 of the Army Rules,
or for that matter, for convening a GCM/DCM/SGCM as envisaged
under Section 108 of the Army Act, 1950.
h) Thus, in these circumstances, it is prayed that the present
petition, being devoid of merit, may kind be dismissed.
Analysis and Findings
12. Heard learned counsel for the petitioner as well as learned CGSC for
the respondents and perused the records.
13. Before this Court proceeds further, it will be apposite to refer to certain
provisions of the Army Act, 1950, which would have a bearing on the present
lis.
6
(2020) 14 SCC 518
7
(2016) 8 SCC 641
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14. The petitioner has been accused for violation of Section 56 of the Army
Act, 1950, which reads as under: -
“ 56. False accusations. Any person subject to this Act who commits
any of the following offences, that is to say,-
(a) makes a false accusation against any person subject to this Act,
knowing or having reason to believe such accusation to be false; or
(b) in making a complaint under section 26 or section 27 makes any
statement affecting the character of any person subject to this Act,
knowing or having reason to believe such statement to be false or
knowingly and wilfully suppresses any material facts;
shall, on conviction by court- martial be liable to suffer
imprisonment for a term which may extend to five years or such less
punishment as is in this Act mentioned.”
15. The case of the respondents was that the petitioner had made a
complaint whereby he had made false allegations against his 2IC directly
including the Commanding Officer as well as other senior officers of the Unit.
The procedure prescribed with respect to the aforesaid offence is that once
such complaint is received, the competent authority, after having established
the identity of the complainant, should detail a responsible officer to carry out
preliminary investigations to ascertain if there is substance in the complaint,
and where prima facie or after preliminary investigations, the allegations are
found to have substance, a proper Court of Inquiry should be convened to
investigate them, and disciplinary or administrative action be initiated against
the delinquent individuals. Such disciplinary action can be as per Section 108
of the Army Act, 1950, which provides for court martials and reads as under:
-
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“ 108. Kinds of courts martial .—For the purposes of this Act there
shall be four kinds of courts martial, that is to say—
(a) General Courts Martial;
(b) District Courts Martial;
(c) Summary General Courts Martial; and
(d) Summary Courts Martial.”
16. Section 116 provides for Summary Court Martial, which reads as
under: -
116. Summary Court Martial .—(1) A Summary Court Martial
“
may be held by the Commanding Officer of any corps, department
or detachment of the regular Army, and he shall alone constitute the
court.
(2) The proceedings shall be attended throughout by two other
persons who shall be officers or junior commissioned officers or one
of either, and who shall not as such, be sworn or affirmed.”
17. Section 120 further provides for powers of summary courts martial
which reads as under: -
“ 120. Powers of Summary Courts Martial .—(1) Subject to the
provisions of sub-section (2), a Summary Court Martial may try any
offence punishable under this Act.
(2) When there is no grave reason for immediate action and
reference can without detriment to discipline be made to the
officer empowered to convene a District Court Martial or on
active service a Summary General Court Martial for the trial of
the alleged offender, an officer holding a Summary Court
Martial shall not try without such reference any offence
punishable under any of the Sections 34, 37 and 69, or any
offence against the officer holding the court.
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(3) A Summary Court Martial may try any person subject to this Act
and under the command of the officer holding the court, except an
officer, junior commissioned officer or warrant officer.
(4) A Summary Court Martial may pass any sentence which may be
passed under this Act, except a sentence of death or transportation,
or of imprisonment for a term exceeding the limit specified in sub-
section (5).
(5) The limit referred to in sub-section (4) shall be one year if the
officer holding the Summary Court Martial is of the rank of
Lieutenant Colonel and upwards, and three months if such officer is
below that rank.”
(emphasis supplied)
18. As per the case of the respondents, after receipt of the complaint, the
Court of Inquiry is convened in terms of Rule 177 of the Army Rules, 1954,
contained in Chapter VI- ‘Courts of Inquiry’, which reads as under: -
“ 177. Courts of Inquiry. (1) A court of inquiry is an assembly of
officers or of officers and junior commissioned officers or warrant
officers or non-commissioned officers directed to collect evidence,
and, if so required, to report with regard to any matter which may be
referred to them.
(2) The court may consist of any number of officers of any rank, or
of one or more officers together with one or more junior
commissioned officers or warrant officers or noncommissioned
officers. The members of court may belong to any branch or
department of the service, according to the nature of the
investigation.
(3) A court of inquiry may be assembled by the officer in command
of any body of troops, whether belonging to one or more corps.”
19. Thereafter, hearing of charge is conducted under Section I
(investigation of charges and remand for trial) of Chapter V which provides
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for Investigation of Charges and Trial by Court Martial of the Army Rules,
1954. The relevant Rules of the said Chapter read as under: -
“22. Hearing of charge. (1) Every charge against a person
subject to the Act shall be heard by the Commanding Officer in
the presence of the accused. The accused shall have full liberty to
cross-examine any witness against him, and to call such witness
and make such statement as may be necessary for his defence:
Provided that where the charge against the accused arises
as a result of investigation by a court of inquiry, wherein the
provisions of rule 180 have been complied with in respect of that
accused, the commanding officer may dispense with the
procedure in sub-rule (1).
(2) The commanding officer shall dismiss a charge brought before
him, if, in his opinion, the evidence does not show that an offence
under the Act has been committed, and may do so if he is satisfied
that the charge ought not to be proceeded with:
Provided that the commanding officer shall not dismiss a
charge which he is debarred to try under sub-section (2) of section
120 without reference to superior authority as specified therein.
(3) After compliance of sub-rule (1), if the commanding officer is
of opinion that the charge ought to be proceeded with, he shall
within a reasonable time-
(a) dispose of the case under section 80 in accordance with
the manner and form in Appendix III ; or
(b) refer the case to the proper superior military
authority; or
(c) adjourn the case for the purpose of having the
evidence reduced to writing; or
(d) if the accused is below the rank of warrant officer,
order his trial by summary court-martial:
Provided that the commanding officer shall not order trial by
a summary court-martial without a reference to the officer
empowered to convene a district court-martial or on active service a
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summary general court-martial for the trial of the alleged offender
unless –
(a) the offence is one which he can try by a summary court-
martial without any reference to that officer; or
(b) he considers that there is grave reason for immediate
action and such reference cannot be made without detriment
to discipline.
(4) Where the evidence taken in accordance with sub-rule (3) of this
rule discloses an offence other than the offence which was the
subject of the investigation, the commanding officer may frame
suitable charge(s) on the basis of the evidence so taken as well as the
investigation of the original charge.
23. Procedure for taking down the summary of evidence. (1)
Where the case is adjourned for the purpose of having the evidence
reduced to writing, at the adjourned hearing evidence of the
witnesses who were present and gave evidence before the
commanding officer, whether against or for the accused, and of any
other person whose evidence appears to be relevant, shall be taken
down in writing in the presence and hearing of the accused before
the commanding officer or such officer as he directs.
(2) The accused may put in cross-examination such question as he
thinks fit to any witness, and the questions together with the answers
thereto shall be added to the evidence recorded.
(3) The evidence of each witness after it has been recorded as
provided in the rule when taken down, shall be read over to him, and
shall be signed by him, or if he cannot write his name shall be
attested by the mark and witnessed as a token of the correctness of
the evidence recorded. After all the evidence against the accused has
been recorded, the accused will be asked; “Do you wish to make any
statement? You are obliged to say anything unless you wish to do so,
but whatever you say will be taken down in writing and may be
given in evidence”. Any statement thereupon made by the accused
shall be taken down and read over to him, but he will not be cross-
examined upon it. The accused may then call his witnesses,
including if he so desires, any witnesses as to character.
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(4) The evidence of the witnesses and the statement (if any) of the
accused shall be recorded in the English language. If the witness or
accused, as the case may be, does not understand the English
language, the evidence or statement, as recorded, shall be interpreted
to him in a language which he understands.
(5) If a person cannot be compelled to attend as a witness, or if
owing to the exigencies of service or any other grounds (including
the expense and loss of time involved), the attendance of any witness
cannot in the opinion of the officer taking the summary (to be
certified by him in writing, be readily procured, a written statement
of his evidence purporting to be signed by him may be read to the
accused and included in the summary of evidence.
(6) Any witness who is not subject to military law may be
summoned to attend by order under the hand of the commanding
officer of the accused. The summons shall be in the form provided in
Appendix III.
24. Remand of accused . (1) The evidence and statement (if any)
taken down in writing in pursuance of rule 23 (hereinafter referred to
as the “summary of evidence”), shall be considered by the
commanding officer, who thereupon shall either –
(a) remand the accused for trial by a court-martial: or
(b) refer to case to the proper superior military authority; or
(c) if he thinks it desirable, re-hear the case and either dismiss
the charge or dispose o of it summarily.
(2) If the accused is remanded for trial by a court-martial, the
commanding officer shall without unnecessary delay either assemble
a summary court martial (after referring to the officer empowered to
convene a district court-martial or on active service a summary
general court-martial when such reference is necessary or apply to
the proper military authority to convene a court-martial, as the case
may require.”
(emphasis supplied)
20. It is the case of the respondents that since the Court of Inquiry was
convened in accordance with Rule 177, and the provisions of Rule 180 were
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complied with during the proceedings before COI, the procedure provided
under sub-rule (1) of Rule 22 was dispensed with. Rule 180 of the Army
Rules provides for procedure when character of a person subject to the Act is
involved. The said Rule reads as under: -
“ 180. Procedure when character of a person subject to the Act is
involved . Save in the case of a prisoner of war who is still absent
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 opinion, affects his character or military
reputation and producing any witnesses in defence of his
character and military reputation. The presiding officer of the
court 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.”
(emphasis supplied)
21. As per sub-rule (3) of Rule 22 of the Army Rules, once the
commanding officer is of the opinion that the charge ought to be proceeded
with, then he can exercise the options as provided in said Rule. One of the
options provided in Rule 22 (3) (a) is to dispose of the case under Section 80
in accordance with the manner and form in Appendix III; or as per Rule 22
(3) (b), refer the case for the proper superior military authority; or as per Rule
22 (3) (d), if the accused is below the rank of warrant officer, order his trial by
a summary court martial. Section 80 of the Army Act provides as under: -
“80. Punishment of persons other than officers, junior
commissioned officers and warrant officers . Subject to the
provisions of section 81, a commanding officer or such other officer
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8
as is, with the consent of the Central Government, specified by [the
Chief of the Army Staff], may, in the prescribed manner, proceed
against a person subject to this Act other. wise than as an officer,
junior commissioned officer or warrant officer who is charged with
an offence under this Act and award such person, to the extent
prescribed, one or more of the following punishments, that is to say,
-
(a) imprisonment in military custody up to twenty- eight days;
(b) detention up to twenty- eight days;
(c) confinement to the lines up to twenty- eight days;
(d) extra guards or duties;
(e) deprivation of a, position of the nature of an appointment or of
corps or working pay, and in the case of noncommissioned officers,
also deprivation of acting rank or reduction to a lower grade of pay;
(f) forfeiture of good service and good conduct pay
(g) severe reprimand or reprimand
(h) fine up to fourteen days' pay in any one month;
(i) penal deductions under clause (g) of section 91;
9
(j) [*]”
22 . The petitioner being Hawaldar , was a non-commissioned officer, and
therefore, Section 80 of the Army Act would be applicable to him. Similarly,
as per the second proviso to Rule 22 (3), the commanding officer shall not
order trial by summary court martial without reference to the officer
empowered to convene a district court martial or an active service a summary
general court martial for the trial of the alleged offender unless the offence is
one which he can try by a summary court martial without any reference to that
officer; or he considers that there is a grave reason for immediate action and
such reference cannot be made without detriment to discipline. In the present
case, none of the said satisfactions have been recorded by the concerned
commanding officer. The reading of the aforesaid provisions would
8
Subs. by Act 19 of 1955. S. 2 and Sch., for" the Commander- in- Chief"
9
Omitted by Act 37 of 1992, s. 3.
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demonstrate that before convening a summary court martial, the concerned
officer had various options which could be resorted to. However, none of such
options, in the present case, have been examined. As per the record, there is
no indication whether the Commanding Officer has applied his mind to the
aforesaid provisions before exercising the exceptional power to convene the
SCM.
nd
23. In the present case, the complaint by the petitioner was made on 22
February, 2000, before the Provost Marshal Army, and on receipt of the said
th
complaint, Headquarter 4 Corps (General Commanding Officer-GOC) on 26
March, 2000, ordered for convening a Court of Inquiry in accordance with
th
Rule 177 of the Army Rules, 1954. The said COI assembled on 29 March,
th
2000 and was concluded on 15 April, 2000. During the course of inquiry, 21
witnesses were examined including 9 independent witnesses.
th
24. On 5 May, 2000, the inquiry report was placed before the convening
authority, which directed disciplinary action against the petitioner. Hearing of
charge as per Rule 22 of the Army Rules was conducted, and the final
th
chargesheet was drawn on 9 June, 2000, and the summary court martial
th nd
proceedings was conducted from 13 June, 2000 to 22 June, 2000.
25. In these circumstances and in view of the provisions, as enumerated
hereinabove, it was incumbent upon the competent authority to record the
satisfaction for exercising the drastic power to order a SCM, and that, it was
absolutely imperative that immediate action was necessary in such
circumstances. The aforesaid issue had come up before the Hon’ble Supreme
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10
Court in Randhir Singh v. Union of India & Ors. , wherein after analysing
11
the judgment in Union of India & Ors. v. Vishav Priya Singh ( supra ) , it
was observed and held as under: -
“5. On the question of law, it was urged that having due regard to the
provisions of Section 120 of the Army Act, 1950 and the decision of
this Court in Ratan Singh v. Union of India [Ratan Singh v. Union of
India, 1992 Supp (1) SCC 716 : 1992 SCC (Cri) 358 : AIR 1992 SC
415] and in Union of India v. Vishav Priya Singh [Union of India v.
Vishav Priya Singh, (2016) 8 SCC 641 : (2016) 2 SCC (L&S) 489] ,
the convening of an SCM is by way of an exception where
immediate action is necessary. Hence, it was urged on behalf of the
appellant that there was no reason or justification to hold an SCM in
May 2008 in respect of an incident that took place in August 2007.
6. In response, Mr Sanjay Jain, the learned Additional Solicitor
General submitted that on the merits of the charge of misconduct,
both the victim and her spouse deposed in the course of the inquiry
by the SCM. Hence, it was submitted that there is no occasion for
this Court to review the pure findings of fact which have been
affirmed by the Armed Forces Tribunal. Moreover, it was urged that
the judgment in Vishav Priya Singh [Union of India v. Vishav Priya
Singh, (2016) 8 SCC 641: (2016) 2 SCC (L&S) 489] has since been
clarified in the course of a review 16-2-2017 [Union of India v.
Vishav Priya Singh, (2020) 14 SCC 518] so as to be applicable on
and from 5-7-2016, whereas the incident in question dates back to
August 2007.
7. In the exercise of its appellate jurisdiction, this Court would be
circumspect in reassessing the evidence when the Armed Forces
Tribunal has duly applied its mind to the findings of fact. We have
also duly assessed the submission of the appellant that in the present
case, the appellant had lodged a complaint in the past against the
spouse of the victim for pilferage of petrol. Be that as it may, it is not
necessary for this Court to enter upon the findings of fact since there
is an independent ground on which the submissions of the appellant
would be worthy of acceptance.
10
(2020) 14 SCC 513
11
(2016) 8 SCC 641: 2016 SCC OnLine SC 658
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8. Section 120 of the Army Act, 1950 provides as follows: -
“120. Powers of Summary Courts Martial.—( 1)
Subject to the provisions of sub-section (2), a
Summary Courts Martial may try any offence
punishable under this Act.
(2) When there is no grave reason for immediate action
and reference can without detriment to discipline be
made to the officer empowered to convene a District
Court Martial or on active service a Summary General
Court Martial for the trial of the alleged offender, an
officer holding a Summary Courts Martial shall not try
without such reference any offence punishable under
any of the Sections 34, 37 and 69, or any offence
against the officer holding the court.
(3) A Summary Courts Martial may try any person
subject to this Act and under the command of the
officer holding the court, except an officer, junior
commissioned officer or warrant officer.
(4) A Summary Courts Martial may pass any sentence
which may be passed under this Act, except a sentence
of death or transportation, or of imprisonment for a
term exceeding the limit specified in sub-section (5).
(5) The limit referred to in sub-section (4) shall be one
year if the officer holding the Summary Courts Martial
is of the rank of lieutenant-colonel and upwards, and
three months if such officer is below that rank.”
9. These provisions were interpreted in the decision in Ratan Singh
[Ratan Singh v. Union of India, 1992 Supp (1) SCC 716 : 1992 SCC
(Cri) 358: AIR 1992 SC 415]. Subsequently in Vishav Priya Singh
[Union of India v. Vishav Priya Singh, (2016) 8 SCC 641: (2016) 2
SCC (L&S) 489], a three-Judge Bench of this Court, while
interpreting Section 120, has observed thus: (Vishav Priya Singh
case [Union of India v. Vishav Priya Singh, (2016) 8 SCC 641 :
(2016) 2 SCC (L&S) 489] , SCC pp. 661-62, paras 21-22) “21.
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Section 116 of the Act empowers the CO of any Corps, Department
and Detachment of the regular Army to hold an SCM and
specifically states that he alone shall constitute the Court. Sub-
section (2) then prescribes that the proceedings shall, however, be
attended throughout by two other persons specified therein.
However, such persons are not to be sworn or affirmed. Unlike
Sections 113, 115 and 114, where composition of the Court Martial
concerned is prescribed to consist of at least three officers, it is the
CO alone who constitutes the Court under Section 116 in respect of
SCM. Further, under Rules 39 and 40 of the Rules, CO of the
accused, or of the Corps to which the accused belongs is specifically
disqualified for serving on a GCM or DCM and composition of a
GCM ought to compose of officers of different corps or departments.
However, no such restriction applies to SCMs and in fact the CO
himself must constitute the Court. The Act has thus given drastic
power to one single individual, namely, the CO who alone is to
constitute the Court. No doubt, this power comes with restrictions
insofar as the power to award sentence is concerned in terms of sub-
sections (4) and (5) of Section 120. However, even with such
restrictions the power is quite drastic. The reason for conferment of
such power is obvious that in order to maintain discipline among the
soldiers and units, the CO must have certain special powers, for it is
the discipline which to a great extent binds the unit and makes it a
cohesive force.
22. The High Court of Delhi was therefore
completely correct in observing [Vishav Priya Singh
v. Union of India, 2008 SCC OnLine Del 95: (2008)
147 DLT 202] that such power must be exercised
rarely and when it is absolutely imperative that
immediate action is called for. The satisfaction in that
behalf must either be articulated in writing or be
available on record, specially when the matter can be
considered on merits by a tribunal, with the coming
into force of the Armed Forces Tribunals Act, 2007.”
10. In a review petition [ Review Petition No. 3927 of 2016] filed by
the Union of India, the earlier judgment was clarified on 16-2-2017
[Union of India v. Vishav Priya Singh, (2020) 14 SCC 518] in the
following terms : (Vishav Priya Singh case [Union of India v.
Vishav Priya Singh, (2020) 14 SCC 518] , SCC p. 519, para 6)
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“6. … the requirement, as stipulated in aforesaid
paras 22 and 35, of recording reasons for convening
Summary Court Martial, shall apply on and with
effect from the date of the judgment [Union of India
v. Vishav Priya Singh, (2016) 8 SCC 641: (2016) 2
SCC (L&S) 489], namely, from 5-7-2016. Except for
this clarification, we are satisfied, that no case for
review of the judgment dated 5-7-2016 [Union of
India v. Vishav Priya Singh, (2016) 8 SCC 641:
(2016) 2 SCC (L&S) 489] has been made out.”
11. The above clarification indicates that the requirement of
recording reasons for convening a Summary Court Martial shall
apply from 5-7-2016. However, the fundamental principle of law
which has been enunciated is that the power to order an SCM is a
drastic power which must be exercised in a situation where it is
absolutely imperative that immediate action is necessary. Sub-
section (2) of Section 120 is prefaced by the words “when there is no
grave reason for immediate action”. In the present case, though the
incident took place on 11-8-2007, the SCM took place on 22-5-2008.
The convening of an SCM was contrary to law.”
Thus, the Hon’ble Supreme Court while affirming the ratio of Vishav
12
Priya Singh ( supra ) , to a SCM which was prior to the cut-off date, held that
the power to hold SCM is a drastic power which would be exercised in a
situation where it is absolutely imperative that an immediate action is
required, as the same being fundamental principle of law.
13
26. Insofar as the order of review dated 16.02.2017 with respect to
14
applicability of judgment rendered in Vishav Priya Singh (supra) from the
date of its pronouncement , i.e., 05.07.2016, is concerned, the counsel for the
12
(2016) 8 SCC 641: 2016 SCC OnLine SC 658
13
(2020) 14 SCC 518
14
(2016) 8 SCC 641: 2016 SCC OnLine SC 658
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petitioner has rightly contended that the said restriction would not apply to the
present case inasmuch as the view of the learned Predecessor Bench qua the
present case was upheld by the Supreme Court. In these exceptional
circumstances, the view rendered by the learned Predecessor Bench vide
th
judgment dated 25 January, 2008, that the power to convene SCM must be
exercised rarely, and only when it is absolutely imperative that immediate
action is called for, and the satisfaction in that behalf must be articulated in
writing or be available on record, with respect to aforesaid question of law
would continue to hold the ground.
27. In view of the aforesaid observations, this Court is of the considered
opinion that the court-martial by way of SCM in the present case could not
have been convened. The respondents have failed to demonstrate that there
were grave reasons for immediate action, and the holding of court-martial by
SCM, despite other alternatives being available, was absolutely necessary,
and that the case of the petitioner was not covered by any of the other
alternatives under Section 80 of the Army Act, 1950.
28. As noted hereinbefore, the convening of SCM was resorted to by the
competent authority without recording the satisfaction under Section 120 of
the Army Act. The SCM in the present case was convened on 13.06.2000.
The cause of action as per the respondents for taking disciplinary action
against the petitioner had arisen on 29.02.2000, when the first complaint was
made by the petitioner before Provost Marshal’s office. Thus, there were no
well-articulated reasons to convene an SCM and taking recourse to the same
is also not justifiable or borne out from the record of the present case. The
Signature Not Verified
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NEGI
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incident in the present case pertains to the year 1999, and approximately 27
years have passed since then, and therefore, no useful purpose would be
served, if a direction is given at this stage for remanding the matter back for
fresh consideration. This Court has already held that convening of SCM was
contrary to law. In that view of the matter, ends of justice will be met, if the
punishment awarded to the petitioner is quashed.
29. In view thereof, the present petition is allowed and disposed of
accordingly. The punishment awarded to the petitioner sentencing him, “to be
reduced to ranks and dismissed from service” which was subsequently, vide
order/letter dated 02.08.2001 by Chief of Army Staff, to the extent that, the
petitioner shall be deemed to have been discharged with effect from the date
of his dismissal took effect, is set aside. The petitioner stands re-instated in
service.
30. As per the records, the last rank held by the petitioner was ‘ hawaldar’ ;
however, owing to the punishment awarded in SCM, the rank for pension of
the petitioner for pension was considered to be ‘ Sepoy’ . The date of birth of
the petitioner is 06.04.1964, and he was enrolled in services on 13.03.1984.
The age of superannuation for a ‘ hawaldar’ is 49 years of age or after
completing 26 years of service, whichever is earlier. In such an eventuality,
the petitioner would have continued his services for a period of 26 years , i.e.,
till 12.03.2010, and thus, he would have been deemed to be in service till said
date at the rank of ‘hawaldar’ . The petitioner shall be entitled to all benefits
notionally as if he was in service till the date of his superannuation.
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NEGI
Signing Date:16.10.2026
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W.P.(C) 2433/2003 Page 35 of 36
31. Let all the benefits payable to the petitioner be computed and the
balance sum of pension together with other retiral benefits be released to him
as early as possible, but positively between three months from date of receipt
of a copy of this judgment and order. In default, the sum payable to the
petitioner shall carry interest @ 6% per annum.
32. Judgment be uploaded on the website of this Court, forthwith .
NITIN WASUDEO SAMBRE
(ACTING CHIEF JUSTICE)
AMIT SHARMA
(JUDGE)
OCTOBER, 15 2026/ nk/kr/ns
Signature Not Verified
Signed By:SHIWANI
NEGI
Signing Date:16.10.2026
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