Non-Reportable  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 4852 of 2011

RABINDRA KUMAR SHAW .... Appellant(s)

Versus

UNION OF INDIA, MINISTRY OF DEFENCE & ORS.  …. Respondent (s)

J U D G M E N T

L. NAGESWARA RAO, J.

1. The  Appellant  was  enrolled  in  the  Indian  Army  on

27.07.2000 in the Corps of Signals.  When he was posted

with the 9th Corps Air Support Signal Unit (CASSU), he was

charged for disobedience of lawful command given by his

Company  Havaldar  Major  (CHM)  Pramod  Kumar.  The

charges communicated to the Appellant are as follows:

First charge

“Army Act Section 41(2)

DISOBEYING  A  LAWFUL  COMMAND  GIVEN  BY

HIS  SUPERIOR  OFFICER  IN  THAT  HE,  at  Yol

Cantonment, on 30 July 2009, when ordered by

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his Section Non Commissioned Officer Number

15361  420F  Company  Havaldar  Major

(Operator Cipher) Parmod Kumar of the same

unit to perform the duties as Detachment In-

charge  of  the  unit  Radio  Monitoring

Detachment from 1900 hrs. to 2359 hrs. on 30

July 2009 did not do so.  

Second charge

Army Act Section 41 (2)

DISOBEYING  A  LAWFUL  COMMAND  GIVEN  BY

HIS  SUPERIOR  OFFICER  IN  THAT  HE,  at  Yol

Cantonment,  on  03  August  2009,  when  his

Section  Non  Commissioned  Officer  Number

15361  420F  Company  Havaldar  Major

(Operator Cipher) Parmod Kumar of the same

unit ordered him to perform the duties as the

Detachment  In-charge  of  the  unit  Radio

Monitoring Detachment from 1900 hrs. to 2359

hrs. on 03 August 2009, failed to report to the

Radio Department.”    

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2. The Appellant denied the charges.   Proceedings were

initiated  before  the  Summary  Court  Martial.   Company

Havaldar  Major  Pramod  Kumar  of  Operation  Section,  9th

Corps deposed before the Summary Court Martial that the

Appellant  failed  to  perform  the  duty  of  Operator-cum-

Detachment In-charge of the Radio Monitoring Detachment

Unit from 1900 hrs. to 2359 hrs. on 30.07.2009.  As the

Appellant  did  not  report  for  duty  as  directed  by  him,

Company  Havaldar  Major  Pramod  Kumar  went  to  the

Barrack and directed the Appellant   to    explain    the

reason  for  not  reporting  for  duty.   Thereafter,  Pramod

Kumar  himself  performed  the  duties  of  Detachment  In-

Charge during  that  night.  The Appellant  again  absented

himself  from  duty  in  spite  of  directions  issued  on

03.08.2009.   The  Appellant  was  marched  up  to  the

Commanding  Officer,  Colonel  Rajiv  Sud  on  06.08.2009.

Tentative  charges  were  framed  and  explained  to  the

Appellant.  The Appellant refused to sign Appendix ‘A’ as

directed by the Commanding Officer.   

3. By  an  order  dated  26.08.2009,  the  service  of  the

Appellant  was  terminated  on  the  basis  of  the  findings

recorded in the Summary Court Martial.  He preferred an 3

appeal  to  Respondent  No.4  which  was  dismissed  by  an

order dated 16.02.2010.  Thereafter, the Appellant filed a

Writ  Petition  in  the  Calcutta  High  Court  which  was

transferred to the Armed Forces Tribunal, Kolkata Bench.

By the impugned order, the Armed Forces Tribunal upheld

the order of termination of service of the Appellant.   

4. The learned counsel for the Appellant submitted that

there  is  no  truth  in  the  allegations  that  he  willfully

disobeyed  the  orders  of  his  superior.   He  justified  his

absence from duty on the ground that he suffered an injury

in his little finger of the right hand.   He also submitted

that  the  penalty  of  termination  of  service  is

disproportionate to the charges framed against him.  

5. The  learned  Senior  Counsel  for  the  Respondents

stated that  the Appellant  was not  a  raw soldier,  having

served the Army for a period of 9 years prior to the date of

incident.    Disobeying lawful  command deliberately  and

intentionally  is  a  serious  charge.   The  learned  Senior

Counsel for the Respondent also stated that the Appellant

refused  to  sign  any  documents,  cross  examine  the

witnesses  or  make  a  statement  in  his  defence.    He

deliberately did not summon any defence witness.   4

6. The Armed Forces personnel are different from civil

services.   Not being present at his detachment unit  and

disobeying the lawful command cannot be ignored lightly.

There is abundant material to show that the Appellant is

guilty of disobeying the lawful command of his superiors

not once but on two occasions.  The Appellant is also guilty

of deliberately not co-operating with the Summary Court

Martial.   It  is also clear from the record that he did not

utilize the opportunity to defend himself.   The penalty of

termination of service of the Appellant cannot be said to

be incommensurate with the delinquency.       

7. In view of the above, we are of the opinion that the

Armed  Forces  Tribunal  did  not  commit  any  error  in

affirming the termination of service of the Appellant.  The

appeal is dismissed.      

   ...............................J.                                                                    [L. NAGESWARA

RAO]

…...........................J.                                                                   [HEMANT GUPTA]

New Delhi, August 28, 2019  

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