Union of India & ANR. Vs. Purushottam

FACTS

The Respondent herein, No. 7773409X Havildar (Military Police) Purushottam, was enrolled in the Corps of Military Police, on 7th June 1983. On 27th November 2001, while the Respondent was posted to 916 Provost Unit (General Reserve Engineer Force, or GREF), he was detailed as a member of Mobile Squad and was tasked to carry out checks of various Gref detachments located on the Udhampur-Srinagar highway. On completion of duty, the Squad Commander reported the following activities of the Respondent:

He had demanded Rs. 15000 from the Commander 367 RM Platoon (Kanbal) against surplus construction stores held with the platoon;

he had taken 100 litres of HSD (high speed diesel) with barrel from Superintendent BR-I HL Meena of 367 Platoon, Gund Detachment and thereafter had sold it along with the barrel to a civilian for Rs.1800/-, and this allegation was levelled by the driver of the vehicle in which he was traveling;

He had extorted Rs.6000/- from Superintendent BR-II Sanjay Kumar, 385 RM Platoon, for not reporting surplus construction material held by the platoon;

He had taken one coat/parkha along with two steel hammers from QM, at 118 RCC

Based on these reports, the Chief Engineer, Project Beacon, ordered a Court of Inquiry which investigated these allegations and concluded that the Respondent was blameworthy for two of the four aforesaid acts committed without authority: firstly, demanding and taking 100 litres of HSD from BR- I HL Meena on 30th November, 2001 and selling it to a civilian, and secondly, on 5th December, 2001 demanding and taking a coat/parkha and two stone breaking steel hammers. The Chief Engineer partially agreed with the findings of the Court of Inquiry and directed disciplinary action against the Respondent for the aforementioned two acts.

The Respondent was arraigned on two counts for the two respective acts and charged with committing extortion, under Section 53(a) of the Army Act, 1950. Summary of Evidence was recorded under Rule 23, Army Rules and the Respondent was tried by Summary Court Martial (SCM), headed by Lt. Col CM Kumar, Officer Commanding, (OC) on 11.04.2002. The Respondent pleaded guilty to both charges. At the hearing of the SCM, two prosecution witnesses were examined, both of whom the Respondent declined to cross-examine. The Respondent neither made any statement in his defence, nor did he produce any defence witnesses. He was ultimately awarded the sentence of a reduction in rank to that of “Naik”.

Thereafter, for reasons recondite, the ‘reviewing authority’ purportedly acting under Section 162 of the Act, while ‘reviewing’ the SCM, set aside the same, “due to incorrect framing of charge and lackadaisical recording of evidence at the summary of evidence”. This intervention is in the teeth of the Certification in consonance with Rule 115. Inasmuch as it is the Deputy Judge-Advocate General who has made these observations and the records do not bear out and authenticate that his opinion/observation, was subscribed to or approved by the ‘reviewing authority’ who statutorily has to be the senior ranking officials enumerated in Section 162, there appears to us that a ‘review’ did not actually take place.

This is essentially a usurpation of power by Deputy Judge-Advocate General. Rule 133 no doubt mentions this officer, but his role is restricted to forwarding the proceedings of the Summary Court Martial to the officer authorised to deal with them in pursuance of Section 162. At the most the Deputy Judge-Advocate General may append his own opinion to the proceedings of the Summary Court Martial while forwarding them to the authorised officer.

This is amply clear from the fact that the records made available to the High Court as well as to this Court do not contain any Order of the “prescribed officer” setting aside the proceedings or reducing sentence to any other sentence which the SCM had imposed. It also seems to us to be plain that instead of setting aside or reducing the sting of the sentence the Deputy Judge-Advocate General has opined, without any statutory authority, that the Summary Court Martial itself should be set aside and the Accused/Respondent be relieved of all consequences of trial. Wholly contrary to his own opinion, the Deputy Judge-Advocate General has gone on to return a finding of misappropriation and a sentence that the conduct of the Accused/Respondent renders his retention in the service as undesirable.

 ISSUES

The Respondent filed a CWP against this Discharge repudiating the legality of its issuance against the same alleged acts that had already been subjected to a Court Martial proceeding. The Respondent relied on Articles 14, 16, 21 and 311 of the Constitution, and declaimed against the “illegal procedure and short cut method” taken by the Army authorities to get rid of him. The Appellants stated in their reply before the High Court, as a preliminary point, that no right of the Respondent, let alone a fundamental right, had been violated.

The jurisdiction of the High Courts thus being unwarranted, the Appellants prayed for a preliminary dismissal on that point. The Appellants denied that the Respondent had been Discharged for offences of extortion; rather, the Respondent’s misconduct, amounting to moral turpitude and gross indiscipline, meant that his continued service in the Army was no longer considered desirable. The Appellants canvassed that the Respondent, not being a “civil servant”, could not claim the protection of Article 311. Finally, they submitted that the Discharge procedure had been strictly followed in this case.

The High Court allowed the Respondent’s writ petition, and quashed Show Cause Notice as unsustainable. The Court so concluded on the basis that the Show Cause Notice relied on exactly the same set of charges as had run their course in the Court Martial, resulting in the Respondent’s acquittal. The Court did not accept the distinction articulated by the Appellants, between extortion being the subject of the Court Martial, and misconduct and indiscipline being the subject of the Show Cause Notice and Discharge. Nevertheless, the High Court did not preclude the Respondent before it from “taking any departmental action against the petitioner in respect of the allegations, in accordance with law.” This is the Judgment which is before us for our scrutation.

The factual tapestry having been threaded, we are confronted primarily as to whether the Appellants could have legally issued the notice and discharged the Respondent for misconduct and indiscipline when the same set of alleged acts had been earlier charged as offences and put through a Court Martial, in which the Respondent was ultimately acquitted. In other words, the legal nodus that we have to cogitate upon is the propriety of the initiation of a Discharge Enquiry of a member of the Army subsequent to Summary Court Martial proceedings against him on the same or similar charges having been set aside.

In terms of the impugned Judgment, Discharge Order passed by the Army/Union of India (UOI), Appellants before us, has been quashed. However the commencement of Departmental action in respect of the same allegations has not been interdicted or precluded. The Appellants vehemently contend that the High Court erred in quashing the assailed Discharge Order. Conspicuously, the Respondent has not assailed the grant to the UOI of leave to initiate a Departmental Enquiry.

However, it has been vehemently contended before us that the SCN dated 31.10.2002 suffers from the vice of double jeopardy and, therefore, has been correctly quashed by the Division Bench. The rubicon cleaving the commencement or continuance of Departmental proceeding when criminal charges have also been levelled is always difficult to discover. But there is a watershed which can be discerned albeit with a fair share of arduousness.

 JUDGEMENT

The appeal was disposed off.

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