DALBIR SINGH versus UNION OF INDIA & ORS. on 2 July 2019

[2019] 9 S.C.R. 29

DALBIR SINGH

v.

UNION OF INDIA & ORS.

(Civil Appeal No.9885 of 2011)

JULY 02, 2019

[M. R. SHAH AND A.S. BOPANNA, JJ.]

Armed Forces – Appellant was posted to 3 Rashtriya Rifles(RR) Battalion in 2006 – According to the prosecution while theappellant was so serving, it was ordered on August 13, 2006 tocordon and carry out search in a village in the Jammu and Kashmir– On reaching the village there was exchange of fire, after whichthe militants took cover in a maize field – When the appellant andthe group in which he was given the responsibility to search thehouse was searching the said house, they heard firing from thedirection of the maize field and as such the group exited the houseand the cordon was thereafter adjusted around the maize field – Inthat regard the Light Machine Gun (LMG) was also placed and theLMG was manned by Sapper ‘GS’ and the appellant – Intense firecame from the direction of the maize field towards the LMG spotwherein Sapper ‘GS’ and the appellant were also positioned –Charge against the appellant is that he left his post, jumped acrossthe stone wall and failed to retaliate against the militants due towhich the militants broke the cordon and killed ‘GS’ – Appellantdismissed from service, sentenced to undergo imprisonment for sixmonths by the Summary General Court Martial (SGCM) – ArmedForces Tribunal (AFT) upheld the order – On appeal, held: Taskassigned to the group of officers was to cordon the area and preventthe militants from breaking through – Apart from the fact that theappellant was hit by a bullet in the leg while jumping over the wall,the other actions indicate that the appellant did not rise to theoccasion more particularly when his colleague was attacked andkilled – Though he contended that he jumped the wall to protecthimself, there is no reasonable explanation as to why he did not usethe weapons with him when the attack from the militants had alreadytaken place and his colleague was injured – Tribunal rightlyconcluded that the theory of the appellant having become

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Aunconscious cannot be accepted since all incidents which occurredfrom the time there was attack by the militants including the act ofthe militants in taking away the LMG was explained by the appellant,which he would not have been aware of if he was actuallyunconscious – In that circumstance, when the evidence has beenadverted to by the AFT and when such conclusion reached doesBnot indicate any perversity it would not be appropriate to interferein the matter – No other material or circumstance brought on recordby the appellant to indicate, but for the incident that there was anyother reason due to which he was victimized or to show that it is amalafide action – Order of dismissal justified – However, in theCpeculiar facts and circumstance of the case, the order to undergorigorous imprisonment is set aside – Army Act, 1950 – s.34(c) –Service Law.

Service Law– Disciplined Forces – Grant of punishment –Considerations for – Held: Though in service matters the pastDconduct, both positive and negative will be relevant not only whilereferring to the misconduct but also in deciding the proportionalityof the punishment, the Court should be cautious while consideringthe case of an officer/soldier/employee of a disciplined force andthe same yardstick or sympathetic consideration as in other casescannot be applied.E

Disposing of the appeal, the Court

Conclusion

HELD: 1. The task assigned to the group of officers wasto cordon the area and prevent the militants from breakingthrough. From the evidence of the witnesses the manner in whichthe incident had occurred has been referred to in detail. InsofarFas charge against the appellant, apart from the fact that he wasinjured the other actions would indicate that the appellant didnot rise to the occasion more particularly when his colleague wasattacked and killed. Though he contended that he had jumpedthe wall to protect himself, there is no reasonable explanation asGto why he had not used the weapons which were with him whenthe attack from the militants had already taken place and hiscolleague was injured. Even if the explanation sought to be putforth by him that he was unconscious for about 10 to 12 seconds is taken note the same was not of such a long duration which hadprevented him from taking any action even thereafter and thattoo in a situation when the militants had killed a soldier and alsohad taken away the LMG. While taking note of the saidexplanation sought to be put forth by the appellant the Tribunalrightly arrived at the conclusion that the theory of the appellanthaving become unconscious cannot be accepted since all incidentswhich occurred from the time there was an attack by the militantsincluding the act of the militants in taking away the LMG wasexplained by the appellant, which he would not have been awareof if he was actually unconscious. In that circumstance, when theevidence has been adverted to by the Armed Forces Tribunaland when such conclusion reached does not indicate anyperversity it would not be appropriate for Supreme Court tointerfere in the matter. Further, there is no other material orcircumstance brought on record by the appellant to indicate, butfor the incident there was any other reason due to which he wasvictimized or to show that it is a malafide action. Though in servicematters the past conduct, both positive and negative will berelevant not only while referring to the misconduct but also indeciding the proportionality of the punishment, the Court shouldbe cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick orsympathetic consideration as in other cases cannot be applied.The resources of the country are spent on training a soldier toretaliate and fight when the integrity of the nation is threatenedand there is aggression. In such grave situation if a soldier turnshis back to the challenge, it will certainly amount to cowardice.The SGCM and the Armed Forces Tribunal were justified. Theorder of dismissal is justified and does not call for interference.In so far as the order for imprisonment, in the present facts andcircumstance it is noticed that though the appellant had exhibitedcowardice, the fact remains that he had also received a gunshotinjury in the incident. Further, there is long lapse of time and assuch in the peculiar facts and circumstance the order ofimprisonment need not be implemented at this stage.[Paras 6-9] [35-A, D-H; 36-A-G]

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ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 9885of 2011

From the Judgment and Order dated 26.08.2011 of the ArmedForces Tribunal, Regional Bench at Chandigarh, Chandimandir in OANo. 296 of 2010

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Jay Kishor Singh, Ravindra Keshavrao Adsure, Advs. for theAppellant.

R. Balasubramanian, Sr. Adv., S. K. Tyagi, Shankar Divate,A.K. Sharma, Ms. Saudamini Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered by C

A.S. BOPANNA, J.

1. The appellant is before this Court assailing the order datedAugust 26, 2011 passed by the Armed Forces Tribunal, ChandigarhRegional Bench at Chandimandir whereby the appeal filed by theDappellant herein has been dismissed and the sentence imposed by theSummary General Court Martial (‘SGCM’ for short) has been upheld.

2. The appellant was enrolled in the Army on April 06, 1999 andwas posted to 3 Rashtriya Rifles (RR) Battalion (Bn) in the year 2006.While he was so serving, in respect of an incident which occurred onEAugust 13, 2006, action was initiated under Section 34(c) of the ArmyAct, proceedings were held by the SGCM and the sentence to undergoimprisonment for six months and dismissal from service was imposed.The appellant assailing the same was before the Armed Forces Tribunaland in the said proceedings the order impugned dated August 26, 2011 ispassed. The incident referred to is that according to the prosecutionFwhile the appellant was posted to 3 Rashtriya Rifles (RR) Battalion(Bn), it was ordered on August 13, 2006 to cordon and search be carriedout in village Darigidiyan in the Jammu and Kashmir. The details of theofficers who formed a part of the contingent is also referred in theproceedings. On reaching the village there was a brief contact with theGmilitant and exchange of fire, after which the militants took cover in amaize field. In that view, for the purpose of operation two teams wereformed, among others the appellant was a part of the second team. Atabout 0800 Hrs on August 13, 2006 the team under Subedar SubhashChand in which the appellant was also a member was divided into twogroups. When the appellant and the group in which he was given theH

responsibility to search the house along with Naik Sukhdev Raj and SapperBachitar Singh was searching, they heard firing from the direction of themaize field and as such the group exited the house from the window andthe cordon was thereafter adjusted for the night around the maize field.In that regard the Light Machine Gun (LMG) was also placed and theLMG was manned by Sapper Gurmail Singh and the appellant. To providesupport, Sapper Bachitar Singh was positioned to his left at about 5-7meters. At about 2300 Hrs intense fire came from the direction of themaize field towards the LMG spot wherein Sapper Gurmail Singh,Subedar Dalbir Singh and the appellant were positioned. The chargeagainst the appellant is that he left his post, jumped across the stone walland failed to retaliate against the militants. He failed to use his AK-47and a pistol which was with him due to which the militants broke thecordon, killed Sapper Gurmail Singh and took away the LMG. Whilejumping over the wall the appellant no doubt was hit by a bullet in theleg.

3. Based on such charge of exhibiting cowardice by abandoninghis post, the proceedings were held in the SGCM. The witnesses wereexamined and on analysing the same the sentence dated March 06, 2008was imposed. It is the said finding and sentence which was assailed inOA.No.296 of 2010 before the Armed Forces Tribunal. The ArmedForces Tribunal has referred to the evidence of each of the witnesseswho had been examined in the SGCM while prosecuting the chargeagainst the appellant and on such reappreciation had arrived at theconclusion that the sentence imposed on the appellant is justified.

4. The learned counsel for the appellant while assailing the findingand conclusion reached by the SGCM and the Armed Forces Tribunalhas contended that the conclusion reached is erroneous inasmuch as theevidence tendered by the witnesses has not been properly appreciated.The learned counsel contends that if the case of the prosecution asnarrated in the judgment of the Tribunal is taken note and, in thatbackground, the evidence of the witness is referred to, the same wouldnot be sufficient for establishing the charge. It is contended that theappellant himself was injured in the incident and in such circumstance, itcannot be concluded that he had abandoned the post and cannot bebranded as a coward. The learned counsel has referred to the crossexamination of the witnesses examined as PW-4 to PW-6 to contendthat the said witnesses have stated that the appellant was a good soldier A

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Aand had on earlier occasions accompanied the said witnesses in severaloperations and the appellant is not scared to take part in the operation.The learned counsel, therefore, contends that when the appellant hassuch record of service, the charge that he had moved away from thepost as an act of cowardice cannot be accepted and hence he seeks thatthe findings recorded by the SGCM and the conclusion reached by theBArmed Forces Tribunal be set aside.

5. The learned counsel for the respondents has taken us throughthe appeal papers including the order passed by the Armed ForcesTribunal. In that regard, it is contended that the SGCM based on theevidence of the prosecution witnesses had arrived at its conclusion. It isCpointed out that the Armed Forces Tribunal while considering the appealfiled by the appellant herein has reappreciated the evidence and hasthereafter arrived at its conclusion. It is contended that in suchcircumstance in the appeal of the present nature the concurrent findingsand orders rendered by the courts below do not call for interference.DOn the factual aspect it is contended that though the appellant presentlycontends that he had not abandoned the post, there is no explanation asto why even in a grave situation he had not made use of either the AK-47 gun or the pistol which was in his possession as a mark of retaliation.In that circumstance, it is contended that when in the attack carried outby the militants the colleague of the appellant late Gurmail Singh hadEdied and there was no action from the appellant, it is a grave situationwhich warranted the action taken and the same does not call forinterference.

6. In the above background, keeping in view the scope availablein examining a matter of the present nature we have taken note of theFnature of the consideration made by the Armed Forces Tribunal as thesame was in a statutory appeal against the proceedings by the SGCM.In the matter of the present nature when the task assigned to a soldier iscut out in a definite manner and when the duties are assigned, the onlyscope in a judicial proceeding is to find out whether the same has beenGperformed by him based on the finding of fact that is recorded. In amatter where allegation of cowardice is made, the reason for whichsuch allegation is made is to be taken note and considered. In that view,without adverting to all other aspects what is necessary to be taken noteis the charge that was made and the reason for which the competentauthority had arrived at the conclusion that the appellant instead ofH

performing his duty had run away from it. Limited to that aspect, whatis to be taken note is that in the background of the situation that hadarisen, the task assigned to the group of officers was to cordon the areaand prevent the militants from breaking through. The charge against theappellant is that despite the militants having attacked and killed SapperGurmail Singh who was in the group of the appellant and though theLMG was manned by the said deceased Sapper Gurmail Singh and theappellant, the appellant had not retaliated using either the AK-47 gun orthe pistol which was in his possession. On the other hand, the appellantabandoned the post and jumped over the wall to escape from the spot.The defence of the appellant, however, was that he had jumped over thewall to protect himself and attack the militants and in that process hewas also fired at, to his leg and was injured, in the process he had becomeunconscious for about 10 seconds and it is at that point the militants hadpicked up the LMG and carried it away. The appellant had also statedthat his AK-47 was jammed when tried to use it.

7. From the evidence of the witnesses the manner in which theincident had occurred has been referred to in detail. Insofar as chargeagainst the appellant, apart from the fact that he was injured the otheractions would indicate that the appellant did not rise to the occasionmore particularly when his colleague was attacked and killed. Thoughhe has contended that he had jumped the wall to protect himself, there isno reasonable explanation as to why he had not used the weapons whichwere with him when the attack from the militants had already takenplace and his colleague was injured. Even if the explanation sought tobe put forth by him that he was unconscious for about 10 to 12 secondsis taken note the same was not of such a long duration which hadprevented him from taking any action even thereafter and that too in asituation when the militants had killed a soldier and also had taken awaythe LMG. While taking note of the said explanation sought to be putforth by the appellant the Tribunal has rightly arrived at the conclusionthat the theory of the appellant having become unconscious cannot beaccepted since all incidents which occurred from the time there was anattack by the militants including the act of the militants in taking awaythe LMG was explained by the appellant, which he would not have beenaware of if he was actually unconscious. In that circumstance, whenthe evidence has been adverted to by the Armed Forces Tribunal andwhen such conclusion reached does not indicate any perversity it would A

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Anot be appropriate for this Court to interfere in the matter. Further, thereis no other material or circumstance brought on record by the appellantto indicate, but for the incident there was any other reason due to whichhe was victimized or to show that it is a malafide action.

8. Though the learned counsel for the appellant has sought toBrefer to the cross-examination of PW-4 to PW-6 to indicate that he hadtaken part in several operations earlier and the said witnesses haveadmitted him to be a good soldier, in the matter of protecting the border,a soldier cannot live merely on past glory but should rise to the occasionon every occasion to defend the integrity of the nation since such is thetrust reposed in a soldier. Though in service matters the past conduct,Cboth positive and negative will be relevant not only while referring to themisconduct but also in deciding the proportionality of the punishment,the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick orsympathetic consideration as in other cases cannot be applied. TheDresources of the country are spent on training a soldier to retaliate andfight when the integrity of the nation is threatened and there is aggression.In such grave situation if a soldier turns his back to the challenge, it willcertainly amount to cowardice. If in that background, the action takenagainst the appellant is taken note, we are of the opinion, that the SGCMand the Armed Forces Tribunal were justified.E

9. Having arrived at the above conclusion we also take note thatthe appellant apart from being dismissed from service has also beenordered to undergo rigorous imprisonment for six months. For the reasonsrecorded above, the order of dismissal is justified and does not call forinterference. In so far as the order for imprisonment, in the presentFfacts and circumstance we notice that though the appellant had exhibitedcowardice, the fact remains that he had also received a gunshot injury inthe incident. Further, there is long lapse of time and as such in thepeculiar facts and circumstance we are of the opinion that the order ofimprisonment need not be implemented at this stage.G

10. Consequently, the order of dismissal from service is upheldwhile the order to undergo rigorous imprisonment is set aside. The appealis accordingly disposed of with no order as to costs.

Divya PandeyH

Appeal disposed of.