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PETITIONER: UNION OF INDIA AND ORS.

       Vs.

RESPONDENT: NAIK SUBEDAR CLK(S) BALESHWAR RAM AND ORS.

DATE OF JUDGMENT27/10/1989

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH SAWANT, P.B. RAMASWAMY, K.

CITATION:  1990 AIR   65            1989 SCR  Supl. (2)  19  1989 SCC  Supl.  (2) 652 JT 1989 (4)   260  1989 SCALE  (2)944

ACT: Army Act, 1950: Sections 52, 63. Army Rules 1954: Rule 22. Dismissal pursuant to General Court Martial--Validity of. Non-compliance with Rule--Effect of.

HEADNOTE:     The  respondents  faced trial for the charge  of  theft. After  a  General  Court Martial, they  were  found  guilty, convicted  and  sentenced. All the  three  respondents  were dismissed from service.     The respondents filed a writ petition in the High  Court challenging the decision of the Court martial, and the order of  the  dismissal. The High Court set aside  the  order  of conviction and punishment of imprisonment as also the  order of  dismissal from service by holding that the trial  before the Court Martial General was in contravention of Rule 22 of the  Army  Rules, 1954. Hence this appeal by  the  Union  of India. Allowing the appeal in part, this Court.     HELD:  1. It is a fact that the allegation at the  stage of  inquiry  under Rule 22 was described as  prejudicial  to good order and military discipline but the basic facts  said to constitute that allegation were nothing else than removal of  the foodstuff which constituted the charge of theft.  It is,  therefore, clear that no prejudice has been  caused  to respondent  1  and the enquiry under Rule 22 and  the  trial before  General Court Martial were over the selfsame  facts. [21H; 22A]     2.  It  is a fact that as against respondents  2  and  3 there was no inquiry under Rule 22. It is not disputed  that the  Commanding  Officer of the Unit had stated  before  the General Court Martial that he did not find any case  against respondents 2 and 3. The conclusion reached by the  Command- ing Officer was reasonable. Therefore there is no justifica- tion  to  set aside the order of the High Court  so  far  as respondents 2 and 3 are concerned. [21D-E] 20     Lt. Col. Prithi Pal Singh Bedi v. Union of India & Ors., [1982] 3 SCC 140, referred to.

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JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  778  of 1988.     From the Judgment and Order dated 5.8. 1987 of the Assam High Court in Civil Rule No. 372 of 1982. Anil Dev Singh and P. Parmeshwaran for the Appellants.     A.K.  Ganguli, I.A. Ansari and Ms. Mridula Ray  for  the Respondents. The Judgment of the Court was delivered by RANGANATH  MISRA, J. This appeal is by special leave and  is directed  against the judgment of the Division Bench of  the High Court of Guwahati setting aside the order of conviction and  the  punishment of imprisonment as also  the  order  of dismissal  from service inflicted on the  three  respondents following a finding of guilt by the General Court Martial.     Naik  Subedar  Baleshwar Ram was a  Junior  Commissioned Officer of Amaribari Supply Point in the far eastern  sector and  was in overall charge of the said supply point.  Around 5.30 p.m. on June 19, 1980, he directed Driver Rattan  Singh to  park an army vehicle near the ration store  for  loading dry  ration.  Respondent Ramji with the help of  one  labour from  civilian  side loaded the dry ration in  the  vehicle, whereafter  Baleshwar  Ram directed the truck  to  be  taken towards Balipura. Respondent No. 1 sat in the front seat  in civil dress while respondents 2 and 3 sat behind the body of the truck. By the time the vehicle reached Balipura, it  had become dark and respondent No. 1 ordered the driver to  take the  vehicle  towards Tezpur. When the vehicle  reached  the outskirts of village Eatavari, respondent No. 1 directed the driver  to slow down and turn the vehicle towards the  right and  take  it off on a narrow kutcha track  not  leading  to Tezpur.  The driver of the vehicle was not prepared to  take the  vehicle on the kutcha road but upon respondent No.  1’s insistence the vehicle was so taken and on the kutcha  track the  vehicle  bogged  down mid-way and could  not  be  taken further.  In  the meantime, some civilian  persons  gathered there. The respondents 2 and 3 got down and started  unload- ing  some ration until they were prevented by the  civilians present there. Respondent No. 2 21 slipped away from the place. The civilians being  suspicious informed  the  civil  police, who in turn  handed  over  the matter  to military police for investigation  and  necessary action. After due inquiry a disciplinary action was initiat- ed and inquiry under Rule 22 of the Army Rules was undertak- en. A General Court Martial followed where definite  charges were  given and ultimately on the basis of summary  evidence available all the three persons were found guilty, convicted and sentenced. Order of dismissal from service followed.     The  decision  of  the Court Martial and  the  order  of dismissal were challenged before the Guwahati High Court  in a  writ petition. The High Court found that as  against  re- spondents  2 and 3 there was no inquiry under Rule  22.  The High  Court  relied upon the decision of this Court  in  Lt. Col. Prithi Pal Singh Bedi v. Union of India & Ors.,  [1982] 3  SCC 140 and held that the proceeding before  the  General Court  Martial was in violation of the mandatory  provisions of the Army Rules. On that finding the High Court set  aside the  order of conviction and punishment of  imprisonment  as also the order of dismissal from service.     It  is a fact that as against respondents 2 and 3  there was  no inquiry under Rule 22. It is not disputed  that  the

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Commanding Officer of the Unit had stated before the General Court Martial that he did not find any case against respond- ents 2 and 3. The summary of evidence recorded in the Gener- al  Court Martial has been made available to us and we  have read  the  same. The conclusion reached  by  the  Commanding Officer seems to us to be a reasonable one. We do not  think there  is  any justification to set aside the order  of  the High Court so far as respondents 2 and 3 are concerned.     So  far as the case against respondent No. 1 goes  there was an inquiry under Rule 22. The point raised on behalf  of respondent  No. 1 in the High Court was different  from  the case  made out by respondents 2 and 3. It had  been  pleaded that  the inquiry under Rule 22 as against respondent No.  1 related  to  an offence which came under section 63  of  the Army  Act,  namely, conduct prejudicial to  good  order  and military discipline; while the charge he was called upon  to face in the General Court Martial was one of theft  punisha- ble  under section 52(a) of the Army Act. We have  seen  the evidence recorded in the inquiry under Rule 22. It is a fact that  the allegation at the stage of inquiry under  Rule  22 was  described  as prejudicial to good  order  and  military discipline  but  the  basic facts said  to  constitute  that allegation  were nothing else than removal of the  foodstuff which constituted that charge of 22 theft.  It is, therefore, clear that no prejudice  has  been caused to respondent 1 and the inquiry under rule 22 and the trial  before General Court Martial were over the self  same facts.     In  these circumstances, we are inclined to sustain  the judgment of the High Court in regard to respondents 2 and  3 but we would reverse the judgment in regard to respondent  1 and restore the order of the General Court Martial. Respond- ent  No. 1 has already been dismissed from service.  He  has undergone  more than 9 months of the punishment out  of  one year of imprisonment. There has been a gap of several  years since  he has been released from jail initially on bail  and Later  on  the basis of the judgment of the High  Court.  In these  circumstances he need not be taken into  custody  for suffering the balance period of the sentence. The appeal  is partly allowed. There shall be no order for costs. T.N.A.                                  Appeal allowed. 23