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TMI Blog2008 (12) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... draft prepared in respect of the said bill by PAD well in advance, otherwise to report to the Unit immediately. The Dak was collected from the Central Diary. They reached at their destination on 31.7.2000; collected the Dak from Central Diary, FHQ BSF New Delhi on 3.8.2000. Appellant informed the Second-in-Command on phone on 3.8.2000 that some unit drafts were to be collected from PAD. As 5th and 6th August, 2000 were holidays, appellant was directed to report back forthwith by boarding the evening train from Amritsar on 3.8.2000 as he had official Dak in his possession. He did not do so although he had already collected the official Dak. He reported for duty on 7.8.2000. An enquiry was initiated. He could not give a satisfactory reply before the Commandant. He was awarded 7 days' Rigorous Imprisonment (RI) in the custody of the force for absence without leave. The said punishment was imposed as the offence was committed by him for the second time during service. According to respondents, earlier he had committed the following offences. "1. Disobeyed the lawful command of then 21C of his Unit. 2. Kept official Dak with him for 4 days. 3. Absented himself from duty for 4 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommandant was detailed as a friend of the accused in the trial, the same should not be allowed to be raised. iii. Appellant pleaded guilty to both the charges; he did not adduce any evidence; he purported to have offered an explanation that he was suffering from stomachache and, therefore, he could neither take any food nor could participate in the pack drilling, which have been found to be incorrect, this Court should not interfere with the impugned judgment. 9. The question as to whether he was discriminated against vis-`-vis the aforementioned Kalipada Mandal having not been raised by him before the High Court, we are of the opinion that it is not possible for us to consider the said contention which has been raised for the first time. Mr. Pandey submitted that such a contention had been raised in the Writ Petition. It might have been raised but it does not appear from the impugned judgment that the same was pressed before the High Court. This Court is bound by the Judge's record. If the High Court, as contended by Mr. Pandey, despite raising a contention in that behalf did not deal therewith, the only remedy available to him was to move the High Court drawing its attenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andrabati Chowdhrain.) That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment." [See also Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111 and Dhanabhai Khalasi v. State of Gujarat, (2007) 4 SCC 241] 11. Appellant did not even raise any contention before the Summary Security Force Court that he intended to consult a lawyer or to select a friend of his choice as provided for in Rule 157 of the Rules. The High Court, therefore, in our opinion, has rightly opined that such a contention cannot be permitted to be raised. 12. So far as the question of imposition of disproportionate punishment on the appellant is concerned, suffice it to note that he pleaded guilty. It was an unconditional plea. He might have offered an explanation, but as it was not found to be correct; he sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrive at Amritsar. In any event, we are not concerned with the justification of imposition of the sentence or the quantum thereof in the disciplinary proceedings. The order imposing the said sentence is not in question before us. The purported harsh punishment as submitted by Mr. Pandey is, therefore, not a matter of which we can take cognizance at this stage. 14. The question as to whether refusal to take food by itself would come within the purview of Section 41 of the Army Act, 1950, this Court in Ranjit Thakur (supra) held: "The submission that a disregard of an order to eat food does not by itself amount to a disobedience to a lawful command for purposes of Section 41 has to be examined in the context of the imperatives of the high and rigorous discipline to be maintained in the Armed Forces. Every aspect of life of a soldier is regulated by discipline. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that, a mere refusal to eat food is an innocent, neutral act might be an over-simplification of the matter. Mere in-action need not always necessarily be neutral. Serious acts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /unqualified apology at the last appellate stage does not call for any sympathy or mercy." 17. Yet again in Union of India & ors. vs. Datta Linga Toshatwad [(2005) 13 SCC 709], this Court opined: "8. The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16.6.1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days ..... X X X X Extracts X X X X X X X X Extracts X X X X
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