DALBIR SINGH versus UNION OF INDIA & ORS.

Citation: [2019] 9 S.C.R. 29 · Decided: 02-07-2019 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Disposed off

Judgment (excerpt)

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                                       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 the
appellant was so serving, it was ordered on August 13, 2006 to
cordon and carry out search in a village in the Jammu and Kashmir
– On reaching the village there was exchange of fire, after which
the militants took cover in a maize field – When the appellant and
the group in which he was given the responsibility to search the
house was searching the said house, they heard firing from the
direction of the maize field and as such the group exited the house
and the cordon was thereafter adjusted around the maize field – In
that regard the Light Machine Gun (LMG) was also placed and the
LMG was manned by Sapper ‘GS’ and the appellant – Intense fire
came from the direction of the maize field towards the LMG spot
wherein Sapper ‘GS’ and the appellant were also positioned –
Charge against the appellant is that he left his post, jumped across
the stone wall and failed to retaliate against the militants due to
which the militants broke the cordon and killed ‘GS’ – Appellant
dismissed from service, sentenced to undergo imprisonment for six
months by the Summary General Court Martial (SGCM) – Armed
Forces Tribunal (AFT) upheld the order – On appeal, held: Task
assigned to the group of officers was to cordon the area and prevent
the militants from breaking through – Apart from the fact that the
appellant was hit by a bullet in the leg while jumping over the wall,
the other actions indicate that the appellant did not rise to the
occasion more particularly when his colleague was attacked and
killed – Though he contended that he jumped the wall to protect
himself, there is no reasonable explanation as to why he did not use
the weapons with him when the attack from the militants had already
taken place and his colleague was injured – Tribunal rightly
concluded that the theory of the appellant having become
[2019]  9 S.C.R. 29
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SUPREME COURT REPORTS
[2019] 9 S.C.R.
unconscious cannot be accepted since all incidents which occurred
from the time there was attack by the militants including the act of
the militants in taking away the LMG was explained by the appellant,
which he would not have been aware of if he was actually
unconscious – In that circumstance, when the evidence has been
adverted to by the AFT and when such conclusion reached does
not indicate any perversity it would not be appropriate to interfere
in the matter – No other material or circumstance brought on record
by the appellant to indicate, but for the incident that there was any
other reason due to which he was victimized or to show that it is a
malafide action – Order of dismissal justified – However, in the
peculiar facts and circumstance of the case, the order to undergo
rigorous 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 past
conduct, both positive and negative will be relevant not only while
referring to the misconduct 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 or sympathetic consideration as in other cases
cannot be applied.
Disposing of the appeal, the Court
HELD: 1.  The task assigned to the group of officers was
to cordon the area and prevent the militants from breaking
through. From the evidence of the witnesses the manner in which
the incident had occurred has been referred to in detail.  Insofar
as charge against the appellant, apart from the fact that he was
injured the other actions would indicate that the appellant did
not rise to the occasion more particularly when his colleague was
attacked and killed. Though he contended that he had jumped
the wall to protect himself, there is no reasonable explanation as
to why he had not used the weapons which were with him when
the attack from the militants had already taken place and his
colleague was injured. Even if the explanation sought to be put
forth by him that he was unconscious for about 10 to 12 seconds
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is taken note the same was not of such a long duration which had
prevented hi

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