Sepoy Balwan Choudhary v. Union of India

1. The petitioner was-worprig as Naik/Auto.Elect (B Weh) with the respondents and was p;osted at 6il EME Bataliio.n'J'-^ APO. He was issued a charge-sheet uridet Section 40(a) of'lhe-^Arniy Act. Following charge was framed against him:- "Usins Griminal Force to his superior officer In that he, at Ahmedabad Cantonment on 16 December 2013, used criminal force to JC-762146H Naib Subedar/Master Technician (Communication) Ravindra Singh Dogra, Battalion Junior Commissioned Officer Adjutant, to wit, struck with his first on theface ofsaidJunior Commissioned Officer. W.P.(C) No. 7509/2014 Page ] 2016:DHC:8847-DB

2. In this case, a Court of Enquiry was conducted to investigate into the matter relating to petitioner hitting Naib Subedar R.S. Dogra with fists. Besides Naib Subedar R.S. Dogra, Hav PM Bhai, Hav Shivraj Singh and Naik Baijnath and Naik M.K. Mishra were examined. Thereafter, Summary of Evidence was recorded and based on that, charge-sheet of the offence of using criminal force on superior,.wasdssued.^Summary Court Martial took place in the Unit. The petitioner wis' foundguilty of offence and sentenced to 70 days RI in;Mlitaiy custody and reduction toljank, (from NaM to Sepoy). Petitioner-had fully participated ih the proceedings-and had duly \- ' 'V "I V V\ cross-examinedithe witnesses and also examined defence witriesses. He has also already undergone the sen^ric^fviS^isonment. His only challenge is "A,f'~ (iff ' ii\ i'K todisproportionali% ofpermit^

3. It is further contended.,tfiafr:it was ^paiblBubArR Dogra who had acted arrogantly and abused him in feifiily qiiarters during fall-in exercise. It is submitted that all the witnesses examined during Court of Ina^iiry, recording of Summary of Evidence and Summary Court Martial had supported him on the fact that it was Naib Subedar R.S. Dogra who insulted him in the family quarters. Feeling insulted, he retaliated. It is also submitted that these facts were not considered by the authority while imposing penalty W.P. (C)No.7509/2014 Page 2 •c? and that the penalty of dismissal from service along with Rigorous Imprisonment of70 days in military custody is unduly harsh.

4. The proportionality of penalty qua proved fault is open to judicial review if in the given set of facts, it is not commensurate with the misconduct. The Supreme Court in the case of Chairman-Cum-Managing Director, Coal India Limited and Another vs. Mukul Kumar Choudhuri and Others (2009) 15 5'CC'(5:20, whileidealing question of quantum, has observed as under:-'K "20. Onf/q^iM tests ta be applimiwkile dealm^'jyiih the questiorilqf^l^uantum ofpunishment-would be: wcmli^any reasonable employer have.imposed such punishment^ in like circumstances? Obvioiislpid reasonable employer is expected to take into corjMderation measure, magnitude and de^ee of misc<mdi^t;i; and^^^ M other relevant circumstances and'- exclude, ^^eleyhnt^matters before imposingpunishment "

5. It, therefore, is obviiuS^m^ tiietrijcjlgumstances which led to commission of misconduct, the service record of delinquent, and all the other relevant matters are needed to be taken into account by the authorities while imposing the penalty.

6. From the testimonies of witnesses (recorded in Court of Inquiry, Summary of Evidence, and Summary Court Martial), the facts that emerge are that during fall-in exercise, Naib Subedar R.S. Dogra reached at Block W.P. (C) No. 7509/2014 Page 3 No.194, where he observed that cleanliness of the area was not up to the mark. An official was sent to fetch the petitioner and when he reached there, Naib Subedar R.S. Dogra used the words ''who will maintain these myselfor 2IC." (statement made by Naib Subedar R.S. Dogra during Court ofInquiry as PW-1). During recording of Summary of Evidence, Naib Subedar R.S. Dogra again stated ''Then I told them in anger, usingabusive language, that who is going to cleansurrouhding.ar^ j^oufquarter—me or Officiating Second-in-Comman0'Onjhis, Nk Auto Elect (B^iJtX'^ISqlwan Choudhary replied that 'saab dc^jiot use abusive language /zere. '^-lEven in Summary I ^ I // ' " \'i Court Martial;also Naib Subedar-^R.S. Dogra had deposed-that he had I;' ? (• shouted at the petitioner in the family, quart'ers.

7. Similarly, all the Qther<ha^'e^alsolTdlposed iii enquiry that it was Naib Subedar R.S/Db'grawhp^^^ uspd abusive language while talking to petitioner and that the petitionier -hadiinit^^ him to refrain using such a language in the family quarters. Hav PM Bhai had stated that Naib Subedar R.S. Dogra abused first and did not stop even when the petitioner asked him not to abuse. During Summary Court Martial, Hav PM Bhai has also clearly stated in the cross-examination, when asked if Naib Subedar shouted at petitioner using abusive language, "He did shout at you using W.P.(C) No. 7509/2014 Page 4 abusive languagefor not maintaining area infront ofyour quarter andfor being latefor thefall-in. " and again stated—^when asked if petitioner had requested Naib Subedar R.S. Dogra not to shout and use abusive language— that petitioner did askNaib SubedarR.S. Dogra not to shout and abuse. Naik Baijnath had also deposed in the same lines.

8. The witnesses had also deposed that thereafter, a brawl ensued after between them, they grappled'and^started punching,,each other. Even they were separatedv'th^yContinued to trade abuses,'again scuffled and started physicall^^'assMting each^other. Th'#witnesses\l|o stated that prior // to this incidentI'pn the same day at tHe timejofgames parade, f^aib Subedar •i J 'L !i ij If y jj R.S. Dogra hadi.told the family membeMlp^ the fawans to clean their areas -.[1] • dSM^ri. // \\ // and that he wouM, visit iif'lie.faMMMikiilWiror^^ng fall-iA' after drinking four pegs and if thewas'newfound ^gleaC in front of their family members.

9. 'All these materials show that petitioner alone cannot be solely blamed for the incident. The unbecoming behaviour of the senior (using abusive language) triggered the incident. The testimony ofNaib Subedar R.S. Dogra and other witnesses also show that the petitioner had asked Naib Subedar R.S. Dogra not to abuse him. Naib Subedar R.S. Dogra, in his deposition, W.P. (C) No. 7509/2014 Page[5] even has stated that the petitioner while requesting him not to abuse, had used the words 'saab do not use abusive language hereThese facts clearly show that it was the senior officer who had first violated the discipline of Force and insulted his junior inpublic and infront ofhis family members. A senior officer, while addressing his subordinates, is expected to maintain decorum and to refrain from insulting them or lower their dignity in public. After all, subordinates too^have th,eiQiignity,,^ahd-iseJf-respect which should, W -4 a !/ be respected and preseryedV-A senior like Naik Suhedaf'R.S. Dogra should ^ iC-.. ' i ) K"If ^S V\ • ^ 'f v. have refrained,fronrtsing ''abusive lanfu^e against^'.life subordinate, especially in the family/common resilMfiil&rea. The petitioner had reacted Jr.. jlPII ii when he was insulted in public, innfrbrit|qB.his family membeirs and others. I iTllriMi _ ' / The Court was informedtthk.^^^le Dogfa was given a x'-",-'"..'i-.-iiiiaarsiKic----' "?> // comparatively lighte^^ppfiishment, the jietit^^ in rank, besides being sentenced to figorolis imprisof^ military custody for 70 days.

10. We are of the opinion that in the given circumstance of the case, the penalty imposed is harsh and excessive. Given all the circumstances and the fact that the petitioner underwent 70 days rigorous imprisonment, the penalty of reduction in rank was disproportionate. Consequently, we modify fV.P. (C) No. 7509/2014 Page 6 uthe impugned order as far as it reduces the petitioner to rank of Sepoy. The rankof the petitioner be restored to that of Naik/Auto Elect(B Veh) with all the consequential benefits accrued to him on the basis of this modified penalty, including restoration of the increments, seniority, etc. within four weeks from today. The writ petition is allowed in above terms. n Ij ?%„DEEPA SHARMA ()• M, --s,s //.r •«}' • "••••A (JUDGE) I AUGUST 27,2015 ' w BG W.P.(C)No.7509/2014 /f ^<v rAl ^vrsT:- -v#' f(fi I mI "•••i;-.. ''iv"f -r^-"...-s.'"-"' W S. RAVINDRA BHAT (JUDGE) N 4t if Page 7 « » $-15 * + IN THE HIGH COURT OF DELHI AT NEW DELHI REVIEW PET.336/2016, CM APPL.27360/2016 IN W.P. (C) 7509/2014 SEPOY BALWAN CHOUDHARY Petitioner Through: Mr. Pramod Kr. Tiwari, proxy for Ms. Archana Ramesh, Advocate.

VERSUS

JUSTICE S. RAVINDRA BHAT HON'BLE MS.

JUSTICE DEEPA SHARMA % ORDER 13.10.2017 This Court had set aside the reduction in rank on the ground that it was disproportionate to the findings of the disciplinary authority. The Indian Army - which has preferred the review proceedings - contends that since the conviction and sentence was technically not set aside, the promotional benefits cannot be granted. The Court had held the consequent punishment of reduction of rank as disproportionate. This in fact implicated on the conviction and sentence. However, in order to ensure that justice is done, the Court hereby states and declares that the petitioner shall be entitled to consequent seniority and promotion and that this shall not be treated as a precedent. The review petition is disposed ofin the above terms. LJUSuy

S. RAVINDRA BHAT, J

OCTOBER 13, imivikasi DEEPA SHARMA, J