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Judgment
The petitioner has preferred this writ petition for the following reliefs :-
“A. by an appropriate writ, order or direction of this Hon’ble Court, the impugned order dated 28.11.2017 passed by The Records Signals PIN
908770 C/o 56 APO (Respondent No.4), may kindly be declared illegal and violative of Rule 13 of the Army Rules 1954 and same may kindly be
quashed and set. Consequently the impugned communication dated 21.12.2017 conveyed to petitioner no.2, may kindly be held illegal and same may
kindly be quashed and set aside, with direction to the respondents to restore the discharge order dated 15.06.2017, with all consequential service
benefits.
by an appropriate writ, or direction in the nature thereof, theimpugned statement of Cases (SoC) made by the respondents to cancel discharge of
petitioner No.2, contrary to verdict of Medical Board, may kindly be held to be illegal and unsustainable in the eye of law and be quashed and set
aside.
by an appropriate writ or direction in the nature thereof, theentire disciplinary proceedings, conducted by the respondents, consisting of Court of
inquiry (COI), hearing of charge held by present Commanding Officer of petitioner No.2 and recording of Summary of Evidence (SoE), without
supplying copy of charge-sheet and court of enquiry report, be declared violtaive of principles of natural justice and be held to be non-est in the eye of
law and non-effective against right of petitioner No.2.
by an appropriate writ, order or direction, the respondentsmay kindly be directed to release withheld salary of petitioner No.2 and also ration, to
which he is entitled to accordance to law.
by an appropriate writ order or direction, a heavy exemplarycost to the tune of Rs.2,00,000/- may kindly be imposed against erring army officer,
responsible for causing harassment and victimization of petitioners.
Any other order or direction, which this Hon’ble Courtdeemed just and proper be passed in favour of the petitioner. â€
Brief facts, as noticed by this Court are that the petitioner was enrolled in Indian Army after due selection process on 31.01.2002. The petitioner
suffered from low medical category on account of Spondylitis and Panic Disorder. The impugned order in the writ petition was passed on 28.11.2017
by which the approved discharge of petitioner from the Army service on account of low medical category was cancelled. The petitioner was ordered
to be discharged earlier from Army on medical grounds by a duly constituted Medical Board of Army due to sickness of Spondylitis and Panic
Disorder. The petitioner was declared unfit to be retained in Army service and his invalidation was ordered by Medical Board constituted under Rule
13 of Army Rules, 1954. The discharge in pursuance of such order was to take place on 30.11.2017 but before the order could be given affect to,
impugned order of cancellation of order of discharge was passed on 28.11.2017 on account of a pending enquiry.
While enquiry by the respondents was going on at the earlier stage, the court martial of petitioner was conducted and a final order was passed on
19.03.2018. The Court martial has found the petitioner to be guilty of all the 11 charges and an order of punishment was passed which ordered
dismissal of petitioner from the service and one year rigorous imprisonment :-
“CHARGE SHEET
The accused No.15671949N Signalman (Steward) Ganesh Kumar Jha of 12 Corps Signal Regiment (Army
Radio Engineering Network) attached with 164
Medium Regiment (PARBAT ALI), is charged with:-
FIRST CHARGE ABSENTING HIMSELF WITHOUT LEAVE
ARMY ACT
SECTION 39(a) In that he,
At 12 Corps Signal Regiment (Army Radio Engineering
Network), Jodhpur absented himself from the unit from 10 January
2018 to 11 January 2018, till he voluntarily rejoinded to the uni
location on 11 January 2018 at 1012 hours.
SECOND CHARGE
ABSENTING HIMSELF WITHOUT LEAVE
ARMY ACT
SECTION 39(a) In that he,
At 12 Corps Signal Regiment (Army Radio Engineering
Network), Jodhpur absented himself from the unit from 17 January
2018 to 25 January 2018, till he was apprehended from civil area
on 25 January 2018 at Jodhpur.
THIRD CHARGE
DISOBEYINGL AWFUL COMMAN GIVEN BY HIS
ARMY ACT SUPERIOR OFFICER
SECTION 41(2)
In that he,
At 12 Corps Signal Regiment (Army Radio Engineering Network),
Jodhpur on 08 January 2018 when ordered vide 12 Corps Signal
Regiment (Army Radio Engineering Network) letterN o PC-
15671949N/GKJ/Sigs/O1 dated 06 January 2018 to appear for
Court of Inquiry did not do so.
FOURTH CHARGE DISOBEYINGL AWFUL COMMAND GIVEN BY HIS
SUPERIOR OFFICER
ARMY ACT
SECTION 41(2) In that he,
At 12 Corps Signal Regiment (Army Radio Engineering Network), Jodhpur 09 January 2018
when ordered vide 12 Corps Signal Regiment (Army Radio Engineering Network) letter No
PC-15671949N/GKJ/Sigs/O1 dated 08 January 2018 to appear for Court of Inquiry did not do
so.
FIFTH CHARGE DISOBEYINGL AWFUL COMMAND GIVEN BY HIS
SUPERIOR OFFICER
ARMY ACT
SECTION 41(2) In that he,
At 12 Corps Signal Regiment (Army Radio Engineering Network),
Jodhpur on 10 January 2018 when ordered vide 12 Corps Signal
Regiment (Army Radio Engineering Network) letter No PC-
15671949N/GKJ/Sigs/O1 dated 09 January 2018t o appear for
Court of Inquiry did not do so.
SIXTH CHARGE
DISOBEYINGL AWFUL COMMAND GIVEN BY HIS
ARMY ACT SUPERIOR OFFICER
SECTION 41(2)
In that he,
At 12 Corps Signal Regiment (Army Radio Engineering Network),
Jodhpur on 15 January 2018 when ordered vide 12 Corps Signal
Regiment (Army Radio Engineering Network) letter No PC-
15671949N/GKJ/Sigs/O1 dated 14 January 2018t o appear for
Court of Inquiry did not do so.
SEVENTH CHARGE
DISOBEYINGL AWFUL COMMAND GIVEN BY HIS
ARMY ACT SUPERIOR OFFICER
SECTION 14(2)
In that he,
At 12 Corps Signal Regiment (Army Radio Engineering Network),
Jodhpur on 16 January 2018 when ordered vide 12 Corps Signal
Regiment (Army Radio Engineering Network) letter No. PC-
15671949N/GKJ/Sigs/O1 dated 15 January2 018 to appear for
Court of Inquiry did not do so.
EIGHTH CHARGE
SUCH AN OFFENCE AS IN MENTIONED IN CLAUSE
(F)
ARMY ACT OF SECTION 52 OFT HE ARMY ACT, WITH INTENT
SECTION 54(f) TO DEFRAUD
In that he,
At Jodhpur, in November 2016, with intent to defraud obtanied
from Sh Jassa Ram Soni S/oS ukha Ram Soni, Rupees 1,10,000/-
(Rupees one lac ten thousand only) by falsely pretending that he
was working as Cashier in Canteen Store Department of 12 Corps
Signal Regiment (Army Radio Engineering Network), and he will
exchange the old currency notes into new currency notes.
NINETH CHARGE
SUCH AN OFFENCE AS IN MENTIONED IN CLAUSE
(F)
ARMY ACT OF SECTION 52 OFT HE ARMY ACT, WITH INTENT
SECTION 52(f) TO DEFRAUD
In that he,
At Jodhpur, on November 2016, with intent to defraud obtained
from Sh Vishna Ram, a Milk Supplier, Rupees 86,000/- (Rupees
eighty six thousand only) by using his ATM Card.
TENTH CHARGE AN OMISSION PREJUDICIAL TO GOOD ORDER AND
MILITARY DISCIPLINE ARMY ACT
SECTION 63 In that he,
At Jodhpur, on 07 January 2016, photocopied his iden card and
deposited it with Bank of Baroda for the purpose of procuring loan
contrary to the instructions in vogue on the subject.
ELEVENTH CHARGE
BREAKING OUT OF CAMP
ARMY ACT
In that he,
SECTION 42(d)
At Jodhpur, on 17th January, 2018, with intent to abscond from the
camp, used criminal force against 15744535M Signalman Joyanta
Maur of Regimental Police Station 12 Corps Signal Regiment
(Army Radio Engineering Network). So as to break out of the
camp.
Sd/-
Place : Jodhpur (Gaurav Rathore)
Date : 09 March 2018 Colonel
Commanding Officer
164 Med Regt (PARBAT ALI)
Counsel for the petitioner while arguing the case at length on 22.03.2018 stated that the petitioner, who is low medical category, has served Indian
Army since 31.01.2002, and therefore, ought to have been released from civil jail
On account of low medical category after recommendation of the specialist medical board his continuance in service was prejudicial to the
petitioner as the respondents are acting in vindictive and prejudicial manner against the petitioner.
Counsel for the petitioner further submitted that once relationship of employer-employee was severed on account of the discharge, for which final
decision and approval was already taken by the respondents, then it was not upon for the respondents to have conducted the court martial proceedings
as the same are contrary to law.
Counsel for the petitioner earlier moved three habeous corpus petitions before this Court and repeated directions were passed by Hon’ble
Division Bench of this Court in those petitions after hearing counsel for both the parties.
Counsel for the petitioner also submitted that he would separately challeng complete court martial proceedings on merits in accordance with law but
his prayer no.3 was suffice for this Court to adjudicate the entire disciplinary proceedings conducted by the respondents.
Counsel for the petitioner made submission that the Armed Forces Tribunal is having jurisdiction to try the matter but because of non-sitting of
Tribunal since October, 2017 the petitioner has been rendered remediless, thus, he has been left with no option but to invoke extra-ordinary jurisdiction
of this Court by way of filing this writ petition under Article 226 of the Constitution of India.
Counsel for the petitioner also submitted that petitioner has been put to civil jail in pursuance of court martial proceedings conducted on
19.03.2018. The conviction in Court martial proceedings as per learned counsel for the petitioner was predetermined and that reflects severe
prejudice caused to petitioner no.2.
Counsel for the petitioner also prayed that the sentence so awarded by the Army Authorities in summary court martial proceedings i.e. of one
year’s rigorous imprisonment be suspended and convict petitioner be ordered to be released from the Central Jail, Jodhpur.
After considerable arguments on merits, the counsel for the parties jointly stated that till the writ petition is decided finally on merits, the application
seeking suspension of sentence under Article 226 of the Constitution of India be heard by this Court today.
Counsel for the respondent further submitted that the petitioner who had earlier been rendered remedyless because of non-sitting of Tribunal
shall now be having ample remedy to challenge the present impugned order as well as summary court martial proceeding on 09.4.2018 as the Tribunal
will have its sitting on that day.
Counsel for the respondent tried to impress upon this Court that even on merits their act was justified and the writ petition does not warrant any
indulgence by this Court and at the most in the interest of justice the matter may be transferred to Armed Forces Tribunal for adjudication.
Counsel for the petitioner was finally agreeable to the proposition that the matter be transferred to Armed Forces Tribunal for final adjudication on
merits but he made a limited prayer that the petitioner is in civil jail and there is no reason why his sentence be not suspended by this Court exercising
extraordinary jurisdiction under Article 226 of the Constitution of India.
After hearing counsel for the parties yesterday, this Court was of the opinion that petitioner being member of Armed Force, the complete
controversy can very well be adjudicated by the Tribunal specially constituted for that purpose, however, this Court could not have made the petitioner
remediless because of non-sitting of Tribunal for last more than six months, therefore, this Court earlier deemed it proper to adjudicate the matter by
itself but now a notification/Circular has been brought to the notice of Court that learned Armed Forces Tribunal is sitting on 09.03.2018, thus, the
appropriate, efficacious and speedy remedy would be to transfer the matter to the Tribunal.
In light of the fact that sitting of Armed Forces Tribunal is still about 20 days ahead from today, counsel for the petitioner further submitted that a
limited consideration be made and petitioner be immediately ordered to be released from Central Jail, Jodhpur after suspending his sentence, which has
been passed by the summary Court Martial on 19.03.2018. Thus, the matter was posted on 23.2.2018 which is today for limited adjudication of the
relief or suspension of sentence.
The matter was posted today for allowing the parties to finally address the Court on application seeking suspension of sentence. Both the parties
agree that the matter to be transferred to Armed Forces Tribunal. Today i.e. 23.3.2018, this Court considers it appropriate only to adjudicate on the
application seeking sentence of suspension.
The petitioner No.1 present in person submits that she is facing great hardship.  She is having four minor daughters, aged between 4 years to
12 years, and her husband being in custody is a serious issue for her. Her husband is facing serious medical condition and even as per the Medical
Board of the respondent, he was in very bad medical condition suffering from Spondylitis and Panic Disorder.
Petitioner No. 1 is worried about medical condition of her husband i.e. petitioner No.2 and further submitted that the Court be kind enough to
consider and to suspend sentence on medical ground until adjudication of case is done on merits by the Armed Forces Tribunal or by an appropriate
authority.Â
She further submitted that petitioner is a soldier of disciplined Army and would not create any situation that would be embarrassing for the
respondents. It was further urged that there is no chance of petitioner No.2 absconding from law;Â he will abide by the terms and conditions imposed
and would be available for all legal proceedings as and when required.
Petitioner No. 1 has also submitted that the charges levelled by disciplinary authority and the consequential disciplinary proceedings alongwith the
order of summary Court martial do not warrant custody of her husband, at this stage, as the same should be given affect to, if the order attained
finality after scrutiny from higher authorities in accordance with Rules and the judicial scrutiny as and when required. The petitioner No.1 has, thus
tried to make out a limited prayer of suspension of sentence.
Learned DJAG, Colonel Mukul Dev and Lieutenant Harshit Pant are present in Court to address on the application for suspension of sentence
under Article 226 of the Constitution of India. The learned DJAG submitted that respondents are disciplined Armed forces and cannot afford to have
slightest leniency in the matter of grave indiscipline. The Officer further submitted that any indulgence by this Court for sentence suspension would be
detrimental to morale of the troops stationed locally and there would be difficulty in keeping discipline at the station if any indulgence to the persons
like the petitioner no.2 is granted.
The officer also brought to the notice of Court a document in relation to the petitioner wherein criminal case was lodged against him and the bail
was granted by Hon’ble Patna High Court vide order dated 10.08.2017. The order of the Hon’ble
High Court of Patna reads as follows :-
“Heard learned counsel for the petitioners and the State.
The petitioners apprehend arrest in Ghanshyampur P.S. Case No. 27 of 2017 instituted for the offence under Sections-379, 385, 386 & other minor
Sections of the Indian Penal Code.
It has been submitted that petitioner No. 1 and the informant are own brothers. The petitioner No. 2 is son of petitioner No. 1. There is land dispute
between the both brothers.
From the written report itself, it appears that petitioner No. 1 is in military service. From the written report, it appears that these petitioners made
demand of rangdari of Rs. 2,50,000/- and the informant paid an amount of Rs. 50,000/-. From the written report, it appears that there is land dispute
between the parties.
In this manner, there is general and omnibus allegation against the petitioners.
In such circumstances, prayer for anticipatory bail is allowed and it is ordered that the petitioners named above in the event of their arrest or surrender
in the court below within six weeks from the date of receipt/production of copy of this order, shall be released on bail on furnishing bail bond of Rs.
10,000/- (ten thousand) with two sureties of the like amount each in connection with in Ghanshyampur P.S. Case No. 27 of 2017 to the satisfaction of
learned Judicial Magistrat-Ist Class, Darbhanga subject to condition as laid down u/S 438(2) of the Cr.P.C. with further conditions (1) bailors should
be local having sufficient immovable property within the jurisdiction of the court concerned, (2) petitioners shall cooperate in the trial and shall be
present on each and every date fixed by the court and absence on two consecutive dates without proper and reasonable reason, will automatically
cancel bail bond of the petitioners and (3) if petitioners tamper with the evidence or the witnesses of the case, in that case, prosecution will be at
liberty to move for cancellation of bail of the petitioners.â€
The Officer also pointed out from various letters of the Banks, which reflect that petitioner is a financial defaulter too. The Officer has also
informed that petitioner no.2 threatened to kidnap son of Commanding Officer and on such threat being made, an FIR was lodged by respondents
against the petitioner no.2 before the SHO, Police Station, Ratanada, Jodhpur on 22.03.2018
Learned DJAG Mr. Mukul Dev while justifying action taken by the respondents stated that all the actions taken by the respondents were strictly in
accordance with The Army Act, 1950 and Army Rules, 1954 as it was within domain of the respondents to have pass the impugned order. He had
also furnished a circular, which reflects sitting of Armed Forces Tribunal at its Circuit Bench at Jodhpur on 09.04.2018.
Learned DJAG submitted that in view of specific provision under Section 34 of the Armed Forces Tribunal Act, 2007 the matter is required to be
transferred to Armed Forces Tribunal for proper adjudication of case on merits in accordance with law.
Learned DJAG, however, justified order of withdrawal of discharge on count of pendency of disciplinary proceedings which as per him were
already going on and therefore, the reason enough for the petitioner to be tried by the summary Court martial strictly in accordance with Rules.
The Officer vehemently opposed the application of the petitioner for suspension of sentence on account of the fact that Section 182 of the Army
Act, 1950 provides for suspension of sentence by a court-martial to transportation or imprisonment by, the Central Government, the chief of the Army
Staff or any Officer empowered to convene a general or a summary general court Martial.
Section 182 of the Army Act, 1950 reads as under :-
“Section 182 in The Army Act, 1950 182. Suspension of sentence of transportation or imprisonment.
(1) Where a person subject to this Act is sentenced by a court- martial to transportation or imprisonment, the Central Government,   1 the
Chief of the Army Staff] or any officer empowered to convene a general or a summary general court- martial may suspend the sentence whether or
not the offender has already been committed to prison or to military custody.
(2) The authority or officer specified in sub,- section (1) may in the case of an offender so sentenced direct that, until the orders of such authority or
officer have been obtained the offender shall not be committed to prison or to military custody.
(3) The powers conferred by sub- sections (1) and (2) may be exercised in the case of any such sentence which has been confirmed, reduced or
commuted.â€
The Officer has also submitted that the General Officer Commanding 12 Core is the competent authority to exercise powers under Section 182 of
the Army Act, 1950 in this matter.
The Officer also pointed out from the judgment passed by Hon’ble Apex Court in the matter of Ajmer Singh & Ors. Vs. Union of India &
Ors., reported in AIR 1987 SC 1646, which reads as follows :-
 “Section 5 of the Code of Criminal Procedure lays down that nothing contained in the said Code shall, in the ab- sence of a specific provision to
the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of
procedure prescribed, by any other law for the time being in force. The relevant Chapters of the Army Act, the Navy Act and the Air Force Act
embody a completely self-contained comprehensive Code specifying the various offences under those Acts and prescribing the procedure for
detention and custody of offenders, investigation and trial of the offend- ers by Court-Martial, the punishments to be awarded for the various offences,
confirmation and revision of the sentences imposed by CourtMartial, the execution of such sentences and the grant of pardons, remissions and suspen-
sions in respect of such sentences. These enactments, there- fore, constitute a special law in force conferring special jurisdiction and powers on
Courts-Martial and prescribing a special form of procedure for the trial of the offences under those Acts. The effect of Section 5 of the Code of
Criminal Procedure is to render the provisions of the Code of Criminal Procedure inapplicable in respect of all matters covered by such special law.
Since in the four cases before us we are concerned with convictions by General Court-Mar- tial under the provisions of the Army Act, we shall refer
specifically to the relevant provisions contained in the Army Act (hereinafter called the 'Act').â€
The Officer tried to impress upon the Court that by force of aforesaid precedent law Cr.P.C. is not applicable in the instant case, hence, the bail
or suspension of sentence ought not to be considered by this Court.
The Officer also justified action taken by the respondents, in light of gravity of charges and antecedents of the petitioner No.2.
The officer further submitted that release of petitioner No.2 by this Court would cause administrative issues to the respondents as petitioner No.2
is likely to abscond.
After hearing both the parties present in the Court today as well as taking into consideration the arguments made by their respective counsels
yesterday, this Court finds that once the parties have agreed that the matter need to be adjudicated on merits by Armed Forces Tribunal and this Court
also finds that Armed Forces Tribunal is competent authority to deal with the situation, hence, this Court need not to enter into merits of the case,
today as it would unnecessarily prejudice the Tribunal.
This Court also finds that the petitioner is not remediless as per official circular as the Tribunal will have its sitting at Jodhpur on 09.04.2018 after a
lapse of about six months. However, this Court has proceeded to make limited adjudication upon the application of suspension of sentence under
Article 226Â of the Constitution of India.
This Court finds that the petitioner is a person having low medical category as ascertained by the competent Board of the respondents and is
suffering from Spondylitis and Panic Disorder. This Court finds that the petitioner has been a regular soldier from 2002 after regular recruitment and
his case has been considered by the respondents for all purposes strictly in accordance with the Army Act, 1950 and The Army Rules, 1954. This
Court also finds that the subsequent development of summary court martial passing order of rigorous imprisonment for one year, needs to be
scrutinized keeping in mind The Army Act, 1950; The Army Rules, 1954 and Article 21 of the Constitution of India. The order dated 19.03.2018 which
has been passed in the court martial proceedings need not be gone into by this Court at this Stage except for the limited prayer for suspension of
sentence.
In light of medical condition and the facts as addressed by both the parties, this Court is of the considered opinion that the application seekingÂ
suspension of sentence needs to be allowed as the liberty of this soldier ought not to be curtailed until the order stands affirmed by the official and
judicial scrutiny as provided in law. At this stage learned DJAG submits that he has instructions to assure this Court on behalf of respondents that
the Authority shall consider suspension of sentence positively by 27.3.2018 under Section 182 of the Army Act, 1950. Thus, following order is passed
in this matter for strict compliance :(i) This writ petition is transferred to learned Armed Forces Tribunal while exercising the powers under Section 34
of the Armed Forces Tribunal Act, 2007 to be heard at Jodhpur on 9th April, 2018 as per the scheduled sitting.
(ii) Learned DJAG assures this Court that sentence of petitioner no.2Â shall be suspended by the Authorities after imposing stringent terms and
conditions in accordance with law and it is directed that the assurance shall be complied with in terms of Section 182 of the Army Act, 1950 by the
respondents. This Court wanted the release of the petitioner no.2 within 24 hours, but the Officer informed the Court that General Officer
Commanding is not in town, thus, consideration shall be possible only after his return, therefore, the consideration is directed to be completed on or
before 27.03.2018.
(iii) This Court is constitutionally empowered underArticle 226 of the Constitution of India to make any intervention for granting suspension of
sentence to the petitioner and the Court is convinced that such wide powers to adjudicate dispute pertaining to the respondents cannot be curtailed but
have to be utilized with great care and caution in rare circumstance in the subject matter of Armed Forces Tribunal Act, 2007, however, this Court
restrains from passing any direct order to suspend the sentence while exercising the powers under Article 226 of the Constitution of India in light of
the assurance given by the learned DJAG present in person.
(iv) The respondents shall pass orders of application seeking suspension of sentence in accordance with the aforementioned observations while
exercising powers under Section 182 of the Army Act, 1950 on or before 27.03.2018.
(v) This Court believes that the assurance given by theDJAG before this Court shall be honoured in right spirit, thus, the present petition is transferred
to Armed Forces Tribunal with a direction to the petitioner to take up all the issues pertaining to his Army service before the Armed Forces Tribunal.
This order shall not prejudice either of the parties when the matter is taken up by the Tribunal.
(vi). The respondents shall be free to impose whatever conditions and restrictions permitted in law upon petitioner no.2 while exercising powers of
suspending sentence under Section 182 of the Army Act, 1950.
(vii) While taking note of the fact that in the jurisdiction of Armed Forces Tribunal, Jodhpur (Western Rajasthan) there resides a heavy population of
armed forces personnel and non-availability of the Armed Forces Tribunal for last six months here has caused grave misery to such armed forces
personal, which is contrary to the spirit of legislation of Armed Forces Tribunal Act, 2007 and the precedent law laid down by the Hon`ble Apex Court
to ensure appropriate redressal mechanism for the armed force personnel, we direct the Defence Secretary of Union of India alongwith all
concerned in the Union of India to ensure that there shall be sitting of Armed Forces Tribunal for minimum two weeks in every month of the
Gregorian calendar henceforth at Jodhpur, which is also the Principal Seat of Rajasthan High Court.
The application under Article 226 of the Constitution of India also stands disposed of on the aforesaid terms. However, the Petitioner No.1 shall
also be required to furnish undertaking regarding the presence and conduct of petitioner No.2. An application for suspension of sentence under Section
182 of the Army Act, 1950 is given by the petitioner in person to the Officer in the court itself.
Registry is directed send record of the case to the Armed Forces Tribunal, Circuit Bench, Jodhpur.