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New Delhi
Havildar dismmissal quashed
By Nirnimesh Kumar
NEW DELHI, FEB. 11. The Delhi High Court has quashed an order by summary court martial dismissing a havildar in the Army for making a false complaint against his commanding officer accusing him of failing to process his railway warrant.
Dismissing the order, Justice S.K. Kaul said: ``The punishment in the present case is so disproportionate to the offences as to shock the conscience of the Court to intervene under Article 226 of the Constitution. Thus, on account of disproportionate punishment, the impugned order is bad in law.''
However, the Judge clarified that the judgment would not preclude the Army from holding another court martial in the matter in accordance with law and to consider appropriate sentence in case the court martial held that the charges against the petitioner had been proved.
The petitioner, Havildar S.K. Sharma, posted in the Army Education Corps (AEC), in his complaint to GOC-in-C, Eastern Command, had said that Lt. Col. K.L. Yadav did not take any action on his application for railway warrant.
However, the havildar was charged with making a false allegation knowing fully well that it was a false one. It was further alleged the petitioner's act was prejudicial to good order and military discipline as he had bypassed the proper channel and contacted higher officials straightaway.
The petitioner belonged to 20 Mountain Division and had later been attached to 1842 Light Regiment for disciplinary proceedings.
Initially, it was recommended that the petitioner's be tried by a district court martial but one month later an order was issued saying that the havildar would be tried by a summary court martial.
In the summary court martial, the petitioner was found guilty and dismissed from the service.
Challenging the summary court martial of the petitioner, counsel for Mr. Sharma, Rekha Palli, submitted that the decision to try the petitioner by a summary court martial after three-and-half months of his attachment to the 1842 Light Regiment for trial by a district court martial had deprived her client of valuable rights of defence.
She submitted that once the petitioner had been attached to another unit for disciplinary proceedings, there was no urgency to justify the petitioner to be tried by a summary court martial.
Counsel for the Army, Rajiv Aneja, submitted that the grievance made by the petitioner was without any basis since the petitioner was tried on three charges.
He further said that the petitioner had participated in the trial without raising any objection and after pleading not guilty to the charges and was permitted extensive cross-examination of the witnesses.
The Judge allowed the stand taken by Rekha Palli on this point and declared the summary court martial of the petitioner unsustainable in law.
``The result of the aforesaid is that the proceedings of the summary court martial and the finding and the sentence are without jurisdiction and the punishment is exaggerated and disproportionate to the offences and is thus quashed,'' the Judge said.
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