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PETITIONER: MAJOR SURESH CHAND MEHRA

       Vs.

RESPONDENT: DEFENCE SECRETARY (U.O.I.) AND OTHERS

DATE OF JUDGMENT13/11/1990

BENCH: MISRA, RANGNATH (CJ) BENCH: MISRA, RANGNATH (CJ) KANIA, M.H.

CITATION:  1991 AIR  483            1990 SCR  Supl. (3)  48  1991 SCC  (2) 198        JT 1990 (4)   590  1990 SCALE  (2)1102

ACT:     Army  Act, 1950/Army Rules, 1954  Sections 80,  83,  84, 85/Rules  22,  25, 53,  177---Commanding  Officer  directing disciplinary  action against a Major--Proceedings  initiated and  summary trial ordered-Major opting to accept the  award of    Court   Martial    reprimand    recommended--Affecting promotion--Validity of proceedings.

HEADNOTE:     The  petitioner was commissioned in the Indian  Army  in January  1959  and was promoted to the substantive  rank  of Major  on  March 11, 1983. In January 1986,  the  petitioner joined  63rd Fd. Regiment. The 24th Rising Day of  the  Unit fell  on September 1, 1986. In connection with the  celebra- tions of the said Day, the petitioner went to respondent No. 2,  Regimental Medical officer of the Unit, at  about  10.30 p.m. on 29.8.86 to pursuade him loan his steel almirah,  for two  or  three days. Respondent No. 2 refused  to  loan  the Almirah to the Petitioner which led to hot exchange of words between them at about 11.00 p.m. Thereupon Respondent No.  2 lodged  a complaint with the Commanding Officer that he  had been beaten by the petitioner. The Commanding Officer visit- ed the quarters of the Respondent No. 2 at about 15  minutes past  midnight of 29/30th August 1986. He made some sort  of inquiries at that time and made a noting that the accusation made  by respondent No. 2 against the petitioner was  unsub- stantiated.  It  appears Respondent No. 2 at that  point  of time was not able to participate in the investigation due to head injuries received by him. However the documents  reveal that respondent No. 2 had to be hospitalised as a result  of injuries received by him at the hands of the petitioner.  In or  about September 1986, a staff court of inquiry was  held which  opined  that due to contradictions and lack  of  evi- dence,  it was not possible to pin-point the blame  for  in- juries  sustained  by respondent No. 2. The  proceedings  of the  court of inquiry were later reviewed by the  Commanders in chain upto General Officer Commanding 4 Corps who came to the  conclusion  that there  was  sufficient  circumstantial evidence,  corroborated by independent evidence of the  head injuries  suffered  by  respondent No. 2  showing  that  the petitioner  was  responsible for the  same.  The  Commanding

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officers,  therefore, inter alia directed that  disciplinary action be taken against the petitioner for causing  injuries to respondent No. 2 49 and  further  the  case be dealt with summarily  by  GOC,  2 Mountain Division. Accordingly Disciplinary proceedings were initiated  and a summary of evidence against the  petitioner was  recorded. After recording the evidence, the  Commanding Officer  remanded  the  petitioner to the  GOC,  2  Mountain Division,  for  summary trial under section 84 of  the  Army Act, 1950. The petitioner was attached to 54 Fd Regiment for purposes of completing the disciplinary action against  him. At  the trial, the petitioner pleaded not guilty,  but  when asked  by the GOC as to whether he would elect to  face  the trial by the General Court Martial or would accept the award passed  by the General Officer Commanding, 2 Mountain  Divi- sion,  the petitioner opted to accept the award of the  GOC. The  petitioner  was  thereupon awarded  the  punishment  of severe  reprimand. By the instant petition under Article  32 the petitioner seeks the quashing of the sentence of ’severe reprimand’, as according to him his promotion is held up  on that account. Dismissing the petition, this Court,     HELD:  A perusal of sub-rule (i) of Rule 22  shows  that the rule deals with the charges against a person subject  to the Army Act other than officers. Admittedly, the petitioner in the instant case was an officer and hence, the provisions of  Rule  22 had no application to it. It is Rule  25  which lays  down the procedure in respect of the  charges  against the officers and it contains no provisions analogus to  sub- rule (2) of Rule 22 of the Army Rules. In view of this, Rule 22 does not come into play at all. [53B-D]     The provisions of sub-rule (i) of the Rule 177 show that the inquiry must be by an assembly of officers of the  ranks described in sub-rule (1) and the purpose of this inquiry is merely  to  collect evidence and if so required,  to  report with regard to any matter which may be referred to the  said officers.  This  is merely in the nature  of  a  preliminary investigation and cannot be equated with a trial. [53F]     From his record it appears that, apart from his  impetu- ousness exhibited by the incident in question, the petition- er  is considered by his superiors to be a good officer  and after a reasonable time, the army authorities could consider him  for promotion if permissible under the law,  the  rules and the practice followed in the army. [54F]

JUDGMENT: