Jaffar Hussain Bhat vs Union of India

Mr. Mohammad Yaqoob Mir, J.(Oral)—In compliance to earlier direction Col. Ajay, Commanding Officer, 10-JAKLI, Sunjwan, Jammu, C/O

56 APO is present in person.

During the course of hearing, Commanding Officer, who is present in person, also made certain submissions in response to what has been

alleged against him.

Basically, petitioner was married to one Mst. Waheeda Akhtar, an orphan. The fact of marriage was brought to the notice of respondent-

authorities. The petitioner had shown willingness that his wife shall stay with him so as to live a happy married life, as such, was permitted to live

with his wife in the Government quarter from July, 2015 to February, 2016. It appears that their matrimonial relationship was disturbed due to

strained relations, as a result whereof, allegedly petitioner, according to the respondents, wanted to get rid of his wife.

Noticing the said development, Mst. Waheeda Akhter appears to have approached the concerned authorities. Commanding Officer, as a head

of the battalion, appears to have initiated action so as to avoid any type of hostility by the petitioner towards his wife. Petitioner feeling offended by

such acts has applied for leave which was sanctioned in his favour. Petitioner had to rejoin on 4th March, 2016 which he has not, instead has filed

the instant writ petition on 16th March, praying for the following reliefs:

(a) Writ of Mandamus commanding the respondents 4 & 5 not to harass the petitioner or intimidate him in any manner whatsoever in discharging

his duties in the Unit and also not to interfere in the personal life of the petitioner.

(b) Writ of Mandamus commanding the respondents to ensure that the petitioner is not harassed or threatened in any manner with further direction

to provide protection to the petitioner.

(c) Respondents 2 & 3 be directed to initiate disciplinary proceedings against the respondents 4 & 5 for their conduct and may be punished

accordingly.

(d) Also any other appropriate writ, order or direction/relief, which will advance the ends of justice in the present case, may be passed in favour of

the petitioner against the respondents with costs.

Direction was issued on 22nd March, 2016, to the effect that the petitioner shall be allowed to discharge his duties without any interference. It

appears that the petitioner after obtaining this direction has reported back to the respondent-authorities on 28th March, 2016. He has been

allowed to join but at the same time proceedings have been initiated against him for overstayal of leave with effect from 4th March till 27th March,

2016, as a result whereof, he has been punished under Section 39 of the Army Act i.e. 14 days fine and 14 days rigorous imprisonment. After

completing the term of punishment, petitioner, according to Commanding Officer, is again discharging duties.

The petitioner, according to counsel for the respondents, has not worked out the remedy as was available to him as against the punishment

awarded. Now it is being projected that the proceedings initiated for overstayal of leave and then the punishment awarded is in derogation to the

interim direction dated 22nd March, 2016 and it is in that background Commanding officer was directed to remain personally present.

Learned ASGI along with Commanding Officer made it clear that the direction of the Court has been respected and there can be no scope for

any authority, howsoever high he may be, to disobey the Court direction. According to Commanding Officer, petitioner is still discharging his

duties. He has been permitted to join but for overstayal of leave, he has been proceeded in accordance with law, therefore, in their perception and

to the best of their understanding, they have not violated the court order.

Army being a disciplined force, cannot afford to show any laxity. When a person has overstayed the leave with effect from 4th March, 2016

and then on 28th March, 2016 he has filed petition, how could authorities ignore the period of overstayal for which he has been dealt with, whether

rightly or wrongly, though according to the petitioner, the action was venomous as according to him he had applied for extension of leave.

Be it as it is. Petitioner has a remedy available against the action so taken which remedy still he shall be at liberty to avail. Vis-a-vis personal

allegations as levelled against respondents No.4 and 5, it shall be difficult for this Court to believe either the petitioner or the Commanding Officer

because for such type of allegations, enquiry is required to be conducted. Petitioner has an efficacious remedy available i.e. to apply to the

concerned authorities under Section 26 of the Army Act.

Submission of the learned counsel for the petitioner is that he may complain it to the Commanding Officer but the allegation against him. This

submission is mis-misplaced because under Section 26(2) of the Army Act, it is clear that the complainant could complain against the officer to his

next superior officer, which, according to ASGI, is Brigade Commandant but according to petitioner again he has an apprehension that he may not

get fair treatment. If it be so, petitioner can file application before General Officer Commanding. When such an efficacious remedy is available, it

would be appropriate for the petitioner to avail the same.

The Commanding Officer, present in the Court, stated that all the officers/officials working under him are like his family members, he has

always to behave as a fatherly figure and levelling of allegation is really unacceptable but such submission still requires enquiry by the concerned

officer, if at all petitioner chooses to approach the concerned authority.

When learned counsel for the petitioner was confronted with the afore-stated position, he fairly submitted that he will complain to the next

superior officer and will also seek redressal of his grievances vis-a-vis punishment as has been awarded but at the same time submitted that

meanwhile, he should be protected as against any harassment. I think this apprehension of the petitioner is dispelled as the Commanding Officer in

the open court stated that the petitioner is discharging his duties and he has to discharge his duties as a good soldier, as long as he works as a good

soldier, his interests will be protected. He (the Commanding Officer) will not interfere with the matrimonial dispute of the petitioner and his wife.

Whatever grievances petitioner may have shall be projected in the application as he may chose to file before the next superior authority i.e.

General Officer Commanding who shall look into it in accordance with law and pass appropriate orders as shall be warranted in the facts and

circumstances of the case.

Disposed of as above along with connected CMP.