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1982 DIGILAW 370 (RAJ)

A. K. Mallik v. Union of India

1982-09-23

M.C.JAIN

body1982
JUDGMENT 1. These two writ petitions are being disposed of by this common order as the writ petition No. 882 of 1978 is a sequel to the first writ petition No. 387 of 1978. 2. The petitioner was working as a Civilian Officer Gr. I under the Border Roads Development Board (for short the BRDB') in the General Reserve Engineer Force (hereinafter referred to as the GREF'). The petitioner was suspended on September 5, 1977(AB) vide No.f.15 (4) Vig/BRDB/75 dated August 17, 1977 (Ex. 1). While working as Officer Commanding in 505 Engineer Stores & Supply Company (CREF) situated at Bhutan, an alleged theft of 300 liters CREF 280 liters of 83 Octara along with 16 Nos. Barrels (200 litres each) was committed on June 24, 1975. A preliminary enquiry into the alleged theft was conducted by the Commander 29 Border Road Task Force and thereafter, the petitioner was served with the charge-sheet on November 22, 1975 by the Commander 29 Border Road Cask Force relating to the charge of abetment under section 66 of the Army Act, 1950 (for short 'the Act'). After service of the charge-sheet upon the petitioner, the General Court Martial (for short the GCM') was convened by the order of, the Chief Engineer, Project Dentak under section 109 of the Act. The petitioner appeared before the GCM. The petitioner along with the other two sub-ordinate co-accused was prosecuted. After trial, the GCM gave the verdict of not guilty' in, favour of the petitioner on December 6, 1975 vide Ex. 5. The GCM forwarded this finding of 'not guilty' along with the entire record of the proceedings to the Director General, Border Roads (Respondent No. 2), who was the confirming authority. The Director General did not confirm the verdict and recorded the order 'not confirmed' on August 30, 1976 (Ex.6). This order was promulgated at the Unit location of 505 Engineers Stores and Company at Bhutan on September 18, 1976 (Ex. 4) by the Commander, 29 Border Roads Task Force. The petitioner also alleged that the petitioner was suspended as the disciplinary proceedings were contemplated against him. The petitioner soon thereafter requested the Director General, Border Roads to supply the copies of the proceedings of GUM. 4) by the Commander, 29 Border Roads Task Force. The petitioner also alleged that the petitioner was suspended as the disciplinary proceedings were contemplated against him. The petitioner soon thereafter requested the Director General, Border Roads to supply the copies of the proceedings of GUM. The petitioner then submitted an appeal under Rule 23 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as 'the CCA Rules') on January 30, 1978, which was acknowledged by the President Secretariat, New Delhi vide No. D. 662-PI(1)/78 dated February 13, 1978 and the petitioner was intimated that the copy was forwarded to the Secretary to the Government of India, Ministry of Shipping and Transport. The petitioner also made reference to the fact that the second charge-sheet dated March 27, 1978 has been served upon the petitioner on April 18, 1978 on the identical charges. In the first writ petition, the petitioner challenged the order of the Director General. Border Roads dated August 30, 1976 (Ex. 3) on various grounds and he prayed that the said order may he quashed and the respondent No. 2 Director General, Border Roads may be directed to confirm the finding and the verdict dated December 3, 1975 of the GCM. 3. In the second writ petition, the petitioner alleged that from the final address of the prosecutor (Ex. 3) and summing up of the judge Advocate (Ex. 4) it is evident that the charge of abetment and of manipulating of causing manipulation of certain records and of influencing and pressurising certain members of the staff of the unit, were the subject matter in issue in the proceedings held against the petitioner before the GCM. The GCM after considering the evidence led before it and the written arguments found the petitioner 'not guilty'. However, the petitioner, was served with the charge-sheet containing two Articles of Charge. The petitioner submitted a representation to the President of India on July 7, 1978 for decision on his appeal dated January 30, 1978 (Ex. 5) and further sent a reminder on July 22, 1978 for early disposal of the appeal. On August 11, 1978, the petitioner received memorandum dated August 5, 1978(Ex. The petitioner submitted a representation to the President of India on July 7, 1978 for decision on his appeal dated January 30, 1978 (Ex. 5) and further sent a reminder on July 22, 1978 for early disposal of the appeal. On August 11, 1978, the petitioner received memorandum dated August 5, 1978(Ex. 12) issued by the Deputy Secretary Ministry of Shipping and Transport, Border Roads Development Board, New Delhi whereby, the petitioner's request for dropping the disciplinary proceedings against the petitioner for his involvement in the alleged theft was rejected. The petitioner received the letter dated July 13, 1978 from the Commissioner for Departmental Enquiries for commencement of the Departmental Enquiry with effect from July 24, 1978. The petitioner again submitted his representation dated September 7, 1978 to the President of India and the copy of the said representation was forwarded to the Commissioner for Departmental Enquiries and further sent a reminder dated September 24, 1978. In the second writ petition, the petitioner challenged the charge-sheet (Ex 8) dated March 10, 1978 on the grounds that the petitioner was prosecuted before the GCM on the same charges, which arc the subject matter of the Departmental Enquiry. The petitioner thus cannot be proceeded against the departmental enquiry under the CCA Rules and in the petitioner's writ petition No. 370 of 1978, this Court held that the disciplinary authority can either proceed under the Army Rules or take proceedings under the CCA Rules. The petitioner prayed for quashing of the charge-sheet and for restraining the respondents from proceeding with the departmental enquiry against the petitioner. 4. Counter to the writ petitions have been filed. In reply to the first writ petition, the respondents took the stand that the findings of the GCM were not confirmed by the Confirming Authority, so such a finding of the GCM is invalid. The effect of non-confirmation neither amounts to acquittal nor conviction. It was further averred that the personnel of the Border Roads Organisation are governed by the Army Rules as well as CCA Rules. According to para 32 of the Border Roads Regulations, all members of GREF are subject to the certain provisions of the Army Act and the Rules made thereunder as laid down in SRO in 329 and 330 of 1960 for the purpose of discipline. According to para 32 of the Border Roads Regulations, all members of GREF are subject to the certain provisions of the Army Act and the Rules made thereunder as laid down in SRO in 329 and 330 of 1960 for the purpose of discipline. Thus, it is the discretion of the authority to 'take action either under the Army Act or under the C.C.A Rules, which are applicable to the organization. As per para 32 of Border Roads Regulations when the confirming authority did not confirm the finding of the GUM, the same became invalid and Border Roads Development Board decided to proceed against the petitioner under the CCA Rules as the question of moral turpitude was involved. The respondent also averred that under section 160 of the Act, the Confirming Authority can send the proceeding for revision of the findings by the GUM, but in the GCM, the minimum number of 5 persons should constitute the GUM. The GCM was constituted of' the five officers but. unfortunately. one member Shri Kapoorsingh fell ill due to Cancer after conclusion of the GCM proceedings and was admitted in the hospital for a prolonged treatment. He was not available to sit as a member for revision and without him, the court would have fallen below the minimum five officers as required under section 160(3) and Section 113. Therefore, the revision of the funding of the GCM became impracticable. It was then decided to proceed against the petitioner under the CCA Rules, as the petitioner simultaneously was governed by the C.C.A. Rules. Under Rule 70 of the Army Rule, the powers of non-confirmation vests in the Confirming authority. It was also stated that Section 160 only empowers the authority to send the finding for revision but that does not mean that power conferred under section 153 of confirming or non-confirming is watered-down b Section 160 of the Act. Both the sections have different area of operation. Rule 70 is not ultra vires of the Act but it is intra vires of the Act and is in consonance with Section 153 of the Act. 5. A similar stand has been taken by the respondents in reply to the writ petition No. 802 of 1978. Besides that, it was stated that the court of enquiry was held against the petitioner regarding loss of Meat on Hoof. 5. A similar stand has been taken by the respondents in reply to the writ petition No. 802 of 1978. Besides that, it was stated that the court of enquiry was held against the petitioner regarding loss of Meat on Hoof. In that court of enquiry, liability to the tune of Rs. 2091 .85p. was fixed on the petitioner. Against this Court of enquiry, the petitioner filed a writ petition No. 370 of 1978, Shri A.K. Mallick v. Union of India & Others . The petition was dismissed on August 14, 1978 and the petitioner's Special Appeal No. 52 of 1978 was also dismissed on December -18, 1978. When the petitioner's non-confirmation neither amounts to acquittal nor conviction, the petitioner can be tried under any law applicable to him. The course of action to proceed against the petitioner under the C.C.A. Rules is thus legal and is also in conformity to the decision of this Court in S.B. Civil writ Petition No. 370 of 1978. 6. A rejoinder has been filed in the first writ petition. Besides reiterating the stand taken in the main petition, it was alleged that Shri Kapoorsingh was and is in the service of the respondent. If any member of the GCM is absent during the trial, the trial can be adjourned after recording the reasons of the absence of the members. An affidavit was further placed on record. Shri Kapoorsingh joined the duty after sick-leave in the month of August, 1976. Thereafter, he is continuously in service but this affidavit was controverted and in the counter affidavit, it was deposed that Shri Kapoor Singh was last posted at Western Store Division, Pathankot and had died on April 13, 1981 at Chitranajan Hospital, Calcutta. 7. I have heard Mr. S.R. Singhi, learned counsel for the petitioner and Mr. J. P. Joshi, learned counsel for the respondents. 8. From the pleadings of the parties, it would appear that the main questions, which arise for consideration in the writ petitions are as to whether the order of non-confirmation dated August 30, 1978 passed by the Confirming Authority is legal and whether after passing of the non-confirmation order, the petitioner can legally be proceeded against the C.C.A. Rules. 9. 8. From the pleadings of the parties, it would appear that the main questions, which arise for consideration in the writ petitions are as to whether the order of non-confirmation dated August 30, 1978 passed by the Confirming Authority is legal and whether after passing of the non-confirmation order, the petitioner can legally be proceeded against the C.C.A. Rules. 9. It is a common ground between the parties that by virtue of the notification No. SRO 329 dated September 23, 1976 and SRO 330 of the same date issued in the exercise of the powers conferred by Sections '(1) and 4(4) of the Act, the Central Government applied the provisions of the Act with the exception shown in the Schedule A and subject to the modification mentioned in Schedule (B) of the notification, to GREY. The petitioner is a member of the GREF, thus the provisions of the Army and the Rules made thereunder are applicable to the petitioner in accordance with the above notification. 10. For facility of reference and for proper appreciation and adjudication of the controversies which need consideration and determination in the present writ petition, it is essential to refer to the relevant provisions of the Act and Rules made thereunder. The Army Act is divided into several Chapters. Chapter II deals with the Offences. Chapter VII deals with the punishments and in Section 71 of the Act-Punishments award able by Court Martial are specified. Apart from death sentence and imprisonment punishments in the nature of cashiering, dismissal, reduction to the lower mark or to a lower rank or grade or place in the list of their rank or forfeiture Seniority or rank or forfeiture of all or any part of their service for the purpose of promotion or forfeiture of service for the purpose of increased pay, pension etc. or forfeiture of pay and allowances for the period not exceeding 3 months or forfeiture in the case of person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances or stoppage of pay and allowances can be awarded. Chapter VIII deals with Penal Deduction and Chapter IX deals with the Arrest and Proceeding before Trial. The provisions relating to the Court Martial and the procedure of the Court Martial are embodied in Chapter X and Chapter XI. Chapter VIII deals with Penal Deduction and Chapter IX deals with the Arrest and Proceeding before Trial. The provisions relating to the Court Martial and the procedure of the Court Martial are embodied in Chapter X and Chapter XI. For the purposes of these writ petitions, the provisions contained in Chapter XII are material. This Chapter relates to confirmation and revision. For our purposes, the relevant provisions are Sections 153, 154, 158, 160, 164 and 165, which are reproduced hereunder:- "153 Finding and sentence not valid, unless confirmed. No finding or sentence of a general district or summary general, court-martial shall be valid except so far as it may be confirmed as provided by this Act. 154. Power to confirm finding and sentence of general court-martial. The findings and sentences of general court-martial may be confirmed by the Central Government, of by any officer empowered in this behalf by warrant of the Central Government. 158. Powers of confirming authority to mitigate or remit or commute sentences. (i) Subject to such restrictions, reservations or conditions as may be contained in any warrant issued under section 154 or section 155 and to the provision of sub-sections (2), a confirming authority may, when confirming the sentence of a court-martial, mitigate or remit the punishment thereby awarded, or commute that punishment for any punishment or punishments lower in the scale laid down in section 71. 2. A sentence of transportation shall not be commuted for a sentence of imprisonment for a term exceeding the term of transporation awarded by the court. 160. Revision of finding or sentence 1. Any finding or sentence of a court-martial which requires confirmation may be once revised by order of confirming authority and on such revision, the court, if so directed by the confirming authority may take additional evidence. 2. The court, on revision, shall consist of the same officers as were present when the original decision was passed, unless any of those officers are unavoidably absent. 3. In case of such unavoidable absence the cause thereof shall be duly certified in the proceedings, and the court shall proceed with the revision, provided that, if a general court-martial, it still consists of five officers or, if a summary general or district court-martial, of three officers. 164. 3. In case of such unavoidable absence the cause thereof shall be duly certified in the proceedings, and the court shall proceed with the revision, provided that, if a general court-martial, it still consists of five officers or, if a summary general or district court-martial, of three officers. 164. Remedy against order, finding or sentence of court-material: (1) Any person subject to this Act who considers himself aggrieved by any order passed by any court-martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court-martial, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceedings to which the order relates. 2. Any person subject to this Act, who considers himself aggrieved by a finding or sentence of any court-martial which has been confirmed, may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, the Chief of the Army Staff or other officer, as the case may be, may pass such order thereon as it or he thinks fit. 165. Annulment of proceedings. The Central Government, the Chief of the Army Staff or any prescribed officer may annul the proceeding of any court-martial on the ground that they are illegal or unjust." 11. The relevant Army Rules are 68, 70 and 71, which are given under the the heading 'Confirmation and Revision' are as under:- "68. Revision-(1) Where the finding is sent back for revision under section 160, the court shall reassemble in open court, the revision order shall be read, and if the court is directed to take fresh evidence such evidence shall also be taken in open court. The court shall then deliberate on its finding in closed court. 2. Where the finding is sent back for revision and the court does not adhere to its former finding, it shall revoke the finding and sentence, and record the new finding and if such new finding involves a sentence, pass sentence afresh. 3. Where the sentence alone is sent back for revision, the court shall not revise the finding. 4. 2. Where the finding is sent back for revision and the court does not adhere to its former finding, it shall revoke the finding and sentence, and record the new finding and if such new finding involves a sentence, pass sentence afresh. 3. Where the sentence alone is sent back for revision, the court shall not revise the finding. 4. After the revision, the presiding officer shall date and sign the decision of the court, and the proceedings, upon being signed by the judge, advocate, if any, shall at once be transmitted for confirmation. 70. Confirmation:-Upon receiving the proceedings of a general or district court-martial, the confirming authority my confirm or refuse confirmation, or reserve confirmation for superior authority and the confirmation, non-confirmation, or reservation shall be entered in and form part of the proceedings. 71. Promulgation:-The charge, and finding, and sentence, and any recommendation to mercy shall, together with the confirmation or non-confirmation of the proceedings, be promulgated in such manner as the confirming authority may direct; and if no direction is given, according to the custom of the service. Until promulgation has been effected, confirmation is not complete and the finding and sentence shall not be held to have been confirmed until they have been promulgated". 12. It would appear from the provisions of Sec 153 of the Act that the finding and sentence of the three court-martial mentioned therein and not of summary court-martial shall not be valid unless the same is confirmed and powers of confirmation is provided under section 154 of the Act. Section 158 confers powers on the confirming authority, when confirming the sentence of a court-martial to mitigate, remit the punishment awarded or to commute the punishment for any punishment subject to such restrictions, reservations or condition as may be contained in any warrant issued under section 154 of section 155 of the Act. Section 160 confers powers on the confirming authority to order revision and this power can be exercised by the Confirming Authority only once. The Confirming Authority, while passing such an order may direct to take additional evidence. Section 160 confers powers on the confirming authority to order revision and this power can be exercised by the Confirming Authority only once. The Confirming Authority, while passing such an order may direct to take additional evidence. Sub-section(2) of Section 160 of the Act lays down that the Court, on revision shall consist of the same officers as were present, when the original decision was passed unless any of those officers are unavoidably absent and sub-section (3) provides the situation when any officer is unavoidably absent, in that case, cause of absence will be recorded and the court shall proceed with the revision provided in the case of General Court Martial, the court still consists of 5 officers. Section 164 lays down the remedy of presenting a petition, if any person is aggrieved by an order passed by a court martial and if' aggrieved by any finding or sentence confirmed by the Confirming Authority he may press on the petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior to the confirming authority. Section 165 of the Act provides for annulment of the proceedings on the grounds that they are illegal and unjust by the Central Government or by the Chief of the Army Staff or any prescribed officer. 13. On behalf of the petitioner, Mr. Singhi contended with all emphasis at his command that none of the provisions in the Army Act conferred power of non- confirmation. The Army rules framed under See. 191 of the Act cannot go beyond the scope of the provisions of the Act and Rules 70 and 71 to the extent, they contemplate non-confirmation are ultra vires of Section 153 of the Act. According to Shri Singhi, learned counsel for the petitioner, the confirming authority can pass an order for revision under Section 160 but where it does not pass such an order, it cannot withhold confirmation and pass the order of non-confirmation. 14. I am unable to agree with this submission of Mr. Singhi. The power of confirmation includes the power of non-confirmation as well The finding or sentence would be valid only when it is confirmed. It implies that the finding or sentence can even be not confirmed. The power of confirmation cannot. only be exercised by a positive act of confirmation, but can equally be exercised by a negative act of non-confirmation. The power of confirmation includes the power of non-confirmation as well The finding or sentence would be valid only when it is confirmed. It implies that the finding or sentence can even be not confirmed. The power of confirmation cannot. only be exercised by a positive act of confirmation, but can equally be exercised by a negative act of non-confirmation. Under Section 191 (2) (h), the Central Government is empowered to make rules to provide for confirmation, revision and annulment of the findings and sentence of the Court Martial and in exercise of this power, Rules 70 and 71 have been framed. Rule 70 provides that the Confirming Authority may either confirm or refuse confirmation or reserve confirmation for the superior authority and that confirmation, non-confirmation or reservation will form part of the proceedings. Refusal of confirmation is equated to non- confirmation under this Rule. Similarly, under Rule 71, non-confirmation of the proceedings are required to be promulgated. I do not find that Rules 70 and 71 have been enacted in excess of the authority, of the provisions contained in Sections 153 and 154 of the Act. Thus, I hold that rule 71 is a valid rule and is in no way ultra wires of the provisions contained in Section 154 of the Act. 15. It is still to be seen as to whether the Confirming Authority is possessed of the power to reverse the finding or sentence of the GCM or for that matter the District Court Martial and the summary General Court Martial. It may be stated that the summary Court Martial, stands on a different footing than the GCM or the District Court Martial or the summary Court Martial. The confirming Authority no doubt, is vested with the power to mitigate or remit or commute the sentence, but it is not vested with the power to reverse the finding of 'guilty' or not guilty' and thereafter, pass any sentence or order any punishment. Undoubtedly, under Section 160, the Confirming Authority is vested with the power to ask for revision by a Court Martial, and such a power can be exercised only once. The scheme of the provisions contained in Chapter XII, appears to be that the ultimate power regarding recording of the finding guilty' or not guilty' entirely and exclusively vests in the GCM. The scheme of the provisions contained in Chapter XII, appears to be that the ultimate power regarding recording of the finding guilty' or not guilty' entirely and exclusively vests in the GCM. When the Confirming Authority has not been conferred with a power to revers- the finding and sub- rule its finding and when revision can be asked only once then it would mean that if the GCM on revision again records the finding 'not guilty' and that the Confirming Authority has no alternative except to conform such a finding of the GCM. Such a conclusion necessarily follows because the power of revision can be exercised only once. The power of non-confirmation and the power of revision have to be considered together along with this situation that the power of reversal and substitution of the finding are not vested in the Confirming Authority. The power' of revision, after being exhausted, in the absence of the power of reversal, the power of non-confirmation cannot be exercised second time. The dominent object behind the provisions of Chapter XII appears to be that the verdict of Court Martial on revision should prevail. However, the finding of not guilty' recorded by the court martial will not be considered extinct or not existent. In this connection, I may profitably make reference to some cases cited by Mr. Singhi, learned counsel for the petitioner. The cases have some relevance and do throw the light to some extent as to how the provisions contained in Chapter XII have been construed. 16. In J.C. Subedar Surat Singh v. The Chief Engineer Projects (A.I.R 1970 J & K 179) , the petitioner was tried by the General Court Martial arid finding of not guilty' was recorded and was acquitted of the charges upon which, he was arraigned and the finding was sent for confirmation under sections 153 and 154 of the Act read with rule 63 of the Rules. The Confirming Authority acted under Section 160 of the Act and sent back the finding of 'not guilty' to the GCM for revision. The GCM saw no reason to depart from the previous finding and re-affirmed the same. This finding was again sent up for confirmation Th, Confirming authority refused to confirm the same and directed the re-trial of the petitioner by another GCM. The petitioner challenged the order of retrial by another GCM. The GCM saw no reason to depart from the previous finding and re-affirmed the same. This finding was again sent up for confirmation Th, Confirming authority refused to confirm the same and directed the re-trial of the petitioner by another GCM. The petitioner challenged the order of retrial by another GCM. His Lordships Jaswantsingh, J., as he then was, considered the contention advanced on behalf of the respondents that if the finding given on second time by the GCM is still perverse, it can refuse to confirm the finding and order retrial because not to try the offender again, would mean allowing the charge against him to remain without valid adjudication which would be against the provisions of Section 153 of the Act. In exercise of the powers conferred under Rule 70 of the Army Rules after refusing confirmation, the Confirming Authority can order for retrial in order to meet the requirements of discipline as well as ends of justice, so the proposed fresh trial cannot be said to be against the provisions of the Act and Rules. This contention was negatived. After considering the relevant provisions of the Act and the Rules, his Lordship observed that the powers of the Confirming Authority being limited as stated above, it cannot go beyond that, and direct retrial of the accused, specially in the absence of a provision for retrial like the one contained in Sections 423 (1) (a) and 476(b) of the, Code of Criminal Procedure. It was further observed that the legislature could not have reasonably intended that an officer convening a general court inertial can go on dissolving such Courts and re-constituting them ad infimitum until be obtains a verdict or a finding of his own liking. That would not only be against public policy and the ancient maxim "name debet bis vaxari prounaetendem cause" (no person should be twice disturbed for the same cause); it would also reduce the provisions of the Act to a mockery and give an appearance of mala fides His Lordship then declared the order to be invalid as it would not he warranted by any provisions of the Rules or the Act. His Lordship S. Murtaza Fazl Ali, C. J , as he then was, agreed with the view taken by Jaswantsingh. J. 17. . His Lordship S. Murtaza Fazl Ali, C. J , as he then was, agreed with the view taken by Jaswantsingh. J. 17. . In Major Manoharlal v. The Union of India and another (1971(1) S.L.R 717) the petitioner was a Major in the Army and he was tried by the GCM and the GCM gave he verdict of 'not guilty' in his favour. The finding was sent for conformation. The Confirming Authority directed the General Officer Commanding (H.Q.). Western Command, Simla, who was empowered to convene the GCM, to hold a fresh trial en the ground that the proceedings of the first GCM are null and void under Rule 40(2) of the Rules, the reason being that one of the members of the CCM was of the rank of a Captain, when a Major was available and no certificate had been issued by the convening authority. On fresh trial, the petitioner was held guilty and was punished to three years' loss of seniority for increments, promotion and pension etc. He moved a petition under section 164(2) of the Act to the President of India, which was rejected. The petitioner then,challenged the second Court Martial and the sentence imposed on him. It was observed in that case, that a duty is cast on the members of the Court Martial, when they assemble as a court to hold all enquiry as to its constitution. An enquiry can be presumed and it would be taken that no invalidity was found. It was observed that according to the provisions of Section 113 of the Act and Rule 40 of the Rules, a Captain is eligible to be made a member of the GCM and merely because the convening officer did not append the certificate that an officer of the rank of the accused was not available, does not make the constitution of that GCM invalid nor can it be held that the finding given by the GCM was without jurisdiction or the proceedings of the trial before it, were null and void In this view of the matter, this question was not decided whether a second trial could be ordered by the General Officer Commanding-in-Chief, when the proceedings were forwarded to him for confirmation and it was held that the second trial is clearly without jurisdiction and sentence was wholly illegal. The proceedings of second General Court Martial were quashed and the order of the President rejecting the petitioner's representation against the sentence imposed upon him was also quashed and the second respondent was directed to pass an order on the proceedings of the first General Court Martial. 18. In Squadren Leader G.B. Singh v. Union of India thr. Secretary. Ministry of Defence and others (1973(2) S.L.R. 807) , the petitioner was tried by the GCM on ten Charges. The GCM found the petitioner guilty on the first five counts and acquitted him of the remaining five charges. The finding and sentence were referred to the Air Officer Commanding-in-Chief for confirmation under section 152 of the Air Force Act. The Confirming Authority then, reserved the same for confirmation by superior authority and forwarded the proceedings to the Chief of the Air Staff. The Chief of the Air Staff passed an order not confirming the findings and sentences awarded 'by the court-martial. After a lapse of 10 months, a fresh GCM was ordered to be convened for retrial The findings and sentences of the GCM were not confirmed and it was found that the proceedings were not in order. Thus there was no valid order of the court-martial convicting or acquitting the petitioner. The petitioner's contention was that once, he was convicted and sentence was awarded by the court-martial, the respondents have no jurisdiction to convene a second General Court Martial for his retrial Reference was made to Section 120 of the Air Force Act, which bars the second trial, which corresponds to section 125 of the Army Act. H.N. Seth. J. considered the relevant provisions of the Air Force Act and rule Rides and observed that if the Confirming Authority does not agree with the finding recorded by the court-martial and thinks that the proceedings should be revised or the accused be retried, it may send the case back to the court-martial for revision as provided in Section 151 of the Air Force Act corresponding to section 160 of the Act. It was also observed that if the Confirming Authority does not confirm the finding recorded by the Court Martial but thinks that no further action its the matter is necessary it may just make an order not confirming the sentence and the proceedings and leave the mister at that. It was also observed that if the Confirming Authority does not confirm the finding recorded by the Court Martial but thinks that no further action its the matter is necessary it may just make an order not confirming the sentence and the proceedings and leave the mister at that. Cases where the proceedings are illegal, are required to be annulled under the orders of the Central Government or the Chief of the Air Staff or the prescribed authority under section 162 of the Act analogous to section 165 of the Act. Effect of such annulment would be as if no such proceedings have takers place, 'file learned judge did not accept thee submission made on behalf of the Union of India that when a finding is not confirmed by the Confirming Authority it would remain invalid and it cannot be taken notice of, for any purpose, whatsoever, including that for purposes of Section 120 of the Art, which bars the second trial and in such cases, the concerned authority is not debarred from convening a second court-martial for retrying the accused. The learned Judge construed Section 120 akin to 153 of the Act that the expression used in that provision, can either mean that (i) a finding or sentence pas,ed by the court-martial comes into existence only when it is confirmed or (ii) that the finding or sentence exists, but it cannot be put into effect unless it has been confirmed. The learned Judge was of the opinion that the expression 'no finding of sentence of a general, distinct or summary general court-martial' shall be valid unless confirmed as provided in Section 120 of the Act has been used in the second of the two senses. It was observed that:- "the provisions of the Act do not require the Confirming Authority to record or to substitute its own findings in place of the findings recorded by the Court-Martial. All that they require is that the confirming authority will either confirm a finding or not confirm it or to send the same back for revision to the court martial itself. Rule 78, which require, promulgation after the matter has been dealt with by the confirming authority, make it clear that the finding and sentence passed by the court-martial do not merge in the order passed by the confirming authority. Rule 78, which require, promulgation after the matter has been dealt with by the confirming authority, make it clear that the finding and sentence passed by the court-martial do not merge in the order passed by the confirming authority. Even when the authority does not confirm the proceedings, its order does not have the effect of setting aside the finding and sentence awarded by the court-martial. If the intention of the Legislature was that a finding or sentence recorded by the court-martial is set aside, as a result of non-confirmation of proceedings, there was absolutely no point in requiring them to be promulgated alongwith the order of non-confirmation. It is true that when the findings are not confirmed, it would not be possible to take any further action on their basis, and the sentence passed by the court-martial cannot be carried out as provided in Section 120 of the Act,but this does not mean that if the Endings arc not confirmed they arc wiped out of the existence or cease to exist. It follows that even if a finding of conviction recorded by a court-martial is not confirmed, and that no action can be taken on that basis. it does not affect the fact that the accused has been tried and convicted by a court martial. In such a case Section 120 of the Act will fully apply and bar a retrial of the accused by another court- martial." 19. In Capt. Harish Uppal v. Union of India and others (A.I.R. 1973 S.C. 258) , the petitioner was an officer of the Indian At my and was tried before the Summary Court Martial on the charge of committing robbery. The court sentenced him to be cashiered. The Confirming Authority passed an order directing revision of sentence. The petitioner was asked by the Court Martial whether he wanted to address the court. On receiving a reply in the negative, the court after considering the observations of the Confirming Authority revoked the sentence and further sentenced him to cashiering and to suffer R. I. for 2 years Their Lordships while considering the provision of revision observed that the Confirming Authority, while pointing out facts had left the discretion regarding the punishment to be imposed to the court martial If the court martial inspite of the direction given by the confirming authority, had reaffirmed its original order. if the confirming authority could do nothing because it exercises its power of directing revision only once and that power was already exhausted. In this case, the question of giving of an opportunity of hearing by the Confirming Authority before directing revision of sentence was also considered The petitioner's contention of not giving an opportunity of hearing was negatived Firstly, it was negatived on the ground that the petitioner was given the reasons of requiring revision and he was asked whether he wants to address the court. He replied in the negative. Thus, it was open to him to have pointed out that how the observations of the confirming authority were wrong and how they were not borne out by the evidence on record. Having failed to avail the opportunity accorded to him, it was observed that the petitioner cannot be heard to complain that he was not given an opportunity by the confirming authority before he directed revision. As regards an opportunity before confirmation of sentence, it was observed that it is not the requirement under the Act and their Lordships further observed as under : "While it can be at least said that there is some semblance of reasonableness in the contention that before he ordered what in effect was an upward revision of the sentence passed on the petitioner, he should have been given a bearing, but to insist that the confirming authority she told give a heating to the petitioner before it confirmed the sentence passed by the court-martial, is a contention which cannot be accepted. To accept this contention would mean that all the procedure laid do done by the Code of Criminal Procedure should be adopted in respect of the court-martial, a contention which cannot be accepted in the face of the very clear indications in the Constitution that the provisions which are applicable to all the civil cases are not a requirement of the principles of natural justice. Indeed when he was informed that the subsequent sentence passed on him had been sent to the Chief of the Army Staff for confirmation it was open to the petitioner to have availed himself of the remedy provided under Section 164 of presenting a petition to the confirming officer i.e., the Chief of the Army Staff in this case. Indeed when he was informed that the subsequent sentence passed on him had been sent to the Chief of the Army Staff for confirmation it was open to the petitioner to have availed himself of the remedy provided under Section 164 of presenting a petition to the confirming officer i.e., the Chief of the Army Staff in this case. He does not appear to have done so." (Emphasis supplied).I have referred to the above observations here as a contention in this regard has also been raised on behalf of the petitioner in these petitions. 20. In Dharma Pal Kukrety v. Chief of Army Staff and others (1978 Lab I.C. 9) , the petitioner was it Major in the Army. He was tried by the Court Martial for the incident, which took place on the night of the 6th/ 7th of November, 1975. The court-martial by its verdict dated March 13, 1976 acquitted him. The confirming authority did not confirm the verdict of the courtmartial and directed that he should be tried by the GCM again. The GCM reaffirmed its verdict of not guilty on 14. 4. 1976. The Confirming Authority forwarded the papers to the General Officer Commanding-in-Chief, Central Command, who by his order dated April 25, 1976 refused to confirm the verdict of the GCM, on the ground of overwhelming evidence on the record in support of the charges and the finding of the GCM were perverse. The superior authority forwarded the proceedings along with his recommendations that the petitioner should not be retained in service to the Chief of Army Staff on June 29, 1976 for suitable action. The Chief of the Army Staff' was of the view that the petitioner was not fit to be retained in service, so he issued a show cause notice tinder Rule 14 of the Rules for removal from service. The show cause notice stated that a fresh court-martial for the trial of the offences was in- expedient. Their Lordships considered the question whether the verdict of the second court-martial required confirmation or not. In this connection, it was observed as under:- "Section 169 (1) provides that a finding or the sentence of a court- martial which requires confirmation may be once revised by the confirming authority. Their Lordships considered the question whether the verdict of the second court-martial required confirmation or not. In this connection, it was observed as under:- "Section 169 (1) provides that a finding or the sentence of a court- martial which requires confirmation may be once revised by the confirming authority. The section is silent as to the power of the confirming authority as to what it can order, if it is dis satisfied with the findings of the general court-martial which is sent for revision under the provisions of section 160(1) of the Army Act. Obviously, the power of revision can only be exercised once. The Army Act does not contemplate successive trial by a court martial till a verdict acceptable to the confirming authority is reached. Section 121 of the Army Act prohibits a second trial by a court-martial for the same offence whether any person subject to the Act has been convicted or acquitted of an offence. Section 160 (1) of the Army Act is in the nature of an exception to the law laid down in section 121 of the Army Act, and must be restricted to the actual language employed in the section. The net result is that if there is a second verdict by a court-martial consequent on it direction by the confirming authority for revision of the verdict, the confirming authority has no option but to confirm the verdict." After referring to the provisions of Sections 153 and 154 of the Act, it was further observed as under:- "In order to give validity to the second verdict of the court-martial consequent on are vision under orders under section 169(1) of the Army Act, the confirming authority is bound in law to confirm the verdict so that it has validity. This Court, therefore holds that Major Dharampal Kukrety stands validity acquitted of the charges framed against him as a result of the second verdict of the general court-martial." In that case, a further question was considered who her it is open to the Chief of the Army Staff to issue an impugned show cause notice under rule 14 of the Rules. In the facts of their case, it was observed that it, therefore, not possible to hold that the Central Government or the Chief of the Army Staff was satisfied that it was inexpedient or impracticable to h, Id a court - martial, as far as the petitioner was concerned. The fact that after the not guilty' verdict of the second court- martial, the Chief of the Army Stall' thought it inexpedient or impracticable to hold a third court-martial, would not, to the mind of' this Court give him jurisdiction to issue the impugned show cause notice. The Central Government or the Chief of the Army Staff has an option initially either to have the officers concerned tried by a court-martial or to take action under Army Rule 14. Having decided to court-martial the officer concerned, neither the Central Government nor the Chief of the Army Staff was competent to take action against the officer, after he was acquitted, to take recourse ut the provisions of Army Rule 14. The impugned notice issued to the, petitioner under Army Rule 14 must, therefore, be held to be without jurisdiction. 21. From the review of the above case law, I am of the opinion as already stated above that the confirming authority is only vested with the power of non confirmation and direct revision. It is not vested with the power to substitute its own findings or enhance the sentence though it has the power to mitigate, remit or commute sentences. The power of directing revision can be exercised only once and in case, this power is exhausted and if second time, the same findings are re-affirmed by the court, the second revision cannot be directed and if second time the power of non- confirmation is exercised, that would reader the provisions unworkable. In that situation, the confirming authority has no option except to accept the finding recorded by the court second time. This appears to be the scheme of the provisions relating to Confirmation and Revision under Chapter XII as has been considered in the case law and further fresh trial ad infinitum is not con em plated. 22. Thus, so far as the present case is concerned, it can be said that the order of non-confirmation, which was duly promulgated, was validly passed by the confirming authority but simultaneously revision has to be directed. 23. 22. Thus, so far as the present case is concerned, it can be said that the order of non-confirmation, which was duly promulgated, was validly passed by the confirming authority but simultaneously revision has to be directed. 23. But, the order of the confirming authority has further been attacked on the ground of being violative of the principles of natural, justice, inasmuch as, the petitioner was not given an opportunity of hearing by the confirming authority before recording the order of non-confirmation and further, it has also been challenged on the ground that it is not a speaking order. Mr. Singhi, learned counsel for the petitioner, in this regard submitted that if a finding and sentence adverse to the accused is recorded, the accused has a remedy by way of petition under Sec 164 and the petitioner may not be given an opportunity of oral hearing before the confirming, authority. But, when the confirming authority is refusing to confirm the finding or sentence of the court or passes an order of non-confirmation, the accused should be allowed an opportunity of hearing by the confirming authority before passing an order of non-confirmation. If such an opportunity is denied, it would be violative of the principles of natural justice. 24. Reliance was placed on the above observations of the Supreme Court in Harish Uppal's case supra, where their Lordships expressed that there is s one semblance of reasonableness in the contention that before he ordered what in effect was an upward revision of the sentence passed on the petitioner, he should have been given a hearing. It is true, that in that case, this contention was negatived on the ground that full opportunity was given by the GCM and the petitioner was even intimated the reasons for requiring the revision, so that contention was negatived, but still these observations do lend support to the contention of the petitioner. 25. In view of the above observations of the Supreme Court, I am of the opinion that where a finding of not guilty' is not being confirmed, the accused should be given an opportunity of hearing. Denial of the opportunity of hearing would undoubtedly prejudicially affect the accused as he would be denied the opportunity to satisfy the confirming authority that the finding of' 'not guilty' should be confirmed and that the confirmation should not be refused. Denial of the opportunity of hearing would undoubtedly prejudicially affect the accused as he would be denied the opportunity to satisfy the confirming authority that the finding of' 'not guilty' should be confirmed and that the confirmation should not be refused. I, therefore, hold that the order of the confirming authority in the present case is rendered invalid on account of violation of the principles of natural justice.25A. It has also ben contended by Mr. Singhi, learned counsel for the petitioner that the two words order -Not confirmed" is not a speaking or a reasoned order. The Confirming Authority has not given any reasons for non -confirmation. In the absence of reasons, it is not known as to why the confirming authority refused to confirm the order Mr. Singhi has placed reliance on a decision of Delhi High Court in (6) Raghbir Singh Sangwan v. Union of India and others (1981 Lab.I.C.1 13l) . I n the case, the petitioner was awarded a 'severe displeasure' by the General Officer Commanding-in-Chief That order was challenged inter alia on the ground twat the order is non-speaking order. In para 10. it was observed that even assuming that the Commanding Officer can differ from the finding of the court of inquiry, he must do so by stating his reasons, particularly when the three courts of inquiry had established innocence of the petitioner. A finding of guilt ought. to state as to why the findings of the court of inquiry are wrong. A speaking order in these circumstances is a sine qua non of fair play. It was further observed that where an order is of a grave consequence an order to be a reasoned order with convincing justification for it in the public interest. 26. In P. Chendra Mouli v. Union of India and others(1980 Cr.L.J. 1241) a direction was given by the court to the effect that the confirming authority would also pass the speaking order as to which of the charges has been established and why. 27. It may be stated that so far as the recording of a finding by the court- martial is concerned, there is a specific rule, how and in what manner, the consideration to the finding i, to be made and in what form, the finding is to be recorded. 27. It may be stated that so far as the recording of a finding by the court- martial is concerned, there is a specific rule, how and in what manner, the consideration to the finding i, to be made and in what form, the finding is to be recorded. Thus, so far as the court martial is concerned, reasons of finding are not required, to be recorded but there is no such clear rule for the confirming authority. In the absence of such it rule for confirming authority like rule 162 in case of court-martial, in my opinion, it is essential for the confirming authority to record a reasoned order when it differs with he findings of the court-martial. Although, in Sq. Ldr. G.B. Singh 's case supra, observations have been made that "it is significant to note that the Act does not require either the court-martial or the confirming authority to write a judgment in support of the orders passed by them. Rule 71 requires the court-martial merely to record its finding as 'not guilty' or guilty'. Similarly, the confirming authority is also required to make an order either confirming or not confirming the proceedings o- to send flit m back for revision under section 159 of the Act " With utmost respect to the learned Judge. I different The position of the court martial, as regards the recording of its finding, in my opinion, is different from the position of the confirming authority. It may he stated that the court-martial affords full heat in, no the accused and, thereafter specific provisions have been made, how it has to deliberate. It is required to deliberate on its finding in a closed court in the presence of Judge advocate and each member of the court has to give his opinion on the findings by word of mouth on each charge separately and then it has to record simply the findings of not guilty' or guilty'. It is note-worthy that the minimum number of member of the GCM is five and of other court-martial is three, so how the matter is to be deliberated and how the findings are to be recorded, are specifically provided for in the rules 61 and 62. It is note-worthy that the minimum number of member of the GCM is five and of other court-martial is three, so how the matter is to be deliberated and how the findings are to be recorded, are specifically provided for in the rules 61 and 62. But so far as the proceedings of the confirming authority are concerned, a single officer constitutes a confirming authority and when it differs from the findings of the court-martial, then in my opinion, the confirming authority is required to pass a reasoned order, after giving an opportunity of hearing to the accused. I have already considered above that simply recording non-confirmation is insufficient as the confirming authority is not empowered to substitute its own finding and enter conviction and pass the sentence, so along with the non-conformation, the only power that can be exercised by the confirming authority is directing revision under section 160 of the Act. Even when, the revision is directed, the confirming authority should record its reason so that the court-martial as well as the accused may be aware as to how the mind of the confirming authority has acted. The wisdom of the provisions of Confirmation and Revision lies in that the opinion of the court-martial consisting of more than one member may prevail. That appears to be the philosophy behind these provisions. Their Lordships of the Supreme Court recently had an occasion to express an opinion in the Indian Express dated August 27, 1982 on the Military Justice System. Their Lordships observed as under:- "The wind of change blowing over the country has not permeated the closs and sac rosanct precincts of the Army. Judicial approach by people well-versed in objective analysis of evidence, trained by experience to look at facts and law objectively fair play and justice cannot always be sacrificed at the alter of military discipline. Unjust decision would be subversive of discipline. There must be judicious admixure of both." 28. Mr. J.P. Joshi, referred to a decision of the Supreme Court in Sons Datta v. Union of India (A.I.R 1969 S.C.414) and Kalyansingh v. Union of India (S.B. Civil writ petition No. 765 of 1979, decided on October 22, 1980) . These are not cases of non-confirmation. Cases of non-confirmation stand on a different footing from cases of confirmation. Mr. J.P. Joshi, referred to a decision of the Supreme Court in Sons Datta v. Union of India (A.I.R 1969 S.C.414) and Kalyansingh v. Union of India (S.B. Civil writ petition No. 765 of 1979, decided on October 22, 1980) . These are not cases of non-confirmation. Cases of non-confirmation stand on a different footing from cases of confirmation. Thus, the order of the confirming authority is liable to be struck down on this ground as well i.e. there was no speaking or reasoned order. 29. Mr. J.P. Joshi, learned counsel for the respondents submitted that after the death of Shri Kapoorsingh, revision of the finding of the GCM is not possible and even at the time of passing of the order by the confirming authority, the provisions of Section 169 could not be resorted to by the confirming authority as Shri Kapoorsingh, Member of the GCM was not available to participate in the GCM proceedings so the revision could not be directed. Under such a situation, there was no alternative left with the authorities except to initiate the disciplinary proceedings against the petitioner under the C.C.A. Rules, Earlier, he also submitted that there were no proceedings pending as a result of non-confirmation and consequently, no direction for revision, was given, so it was within the competence of the authority to resort to the action under the C.C.A. Rules. So far as, the second aspect is concerned, I may state that the finding of GCM is not wiped of, when the same is not confirmed and the only course open was for directing revision. As regards, the impracticability of the holding of the GCM on revision, is concerned, it may be pointed out that under sub-sec.(2) of Section 160 of the Act, the Court on revision is required to consist of the same officers as were present when the original decision was passed unless any of those officers are unavoidably absent. When they are unavoidably absent, their cause is required to be certified in the proceedings and the court is empowered to proceed with the revisions, provided the GCM still consists of five officers. The pleading of the respondent is not clear as to whether on the date of the order passed by the confirming authority, Shri Kapoorsingh was on duty or not or proceeded on leave if so, for whit period and when be joined his duty. The pleading of the respondent is not clear as to whether on the date of the order passed by the confirming authority, Shri Kapoorsingh was on duty or not or proceeded on leave if so, for whit period and when be joined his duty. The Confirming Authority has no-where recorded in its order as to why the revision is not directed. It may be stated that it was not for the confirming authority to see whether a revision is practicable or not. After directing revision, the GCM could have proceeded with the proceedings or not, was the look-out of the GCM. If the five officers were not available, it may be that the GCM could not have held its proceedings and what would have been its effect, would be a question. which would have arisen for consideration. It could be said that the verdict recorded earlier would continue to prevail until it is revoked. Further as considered above the order of 'non-confirmation' is liable to be, quashed. I need not go into the question as to whether revision is possible or not on account of the death of Shri Kapoor Singh and whether some officer can be appointed on the GCM in place of Shri Kapoor Singh. Although, contention has been advanced that Section 160 (3) only requires the presence of five officers and not the same five officers or that section 160(3) should be construed in the light of the provisions of Rule 38. 30. I may now proceed to consider the question as to whether the enquiry under the CCA Rules can be initiated against the petitioner. When the order of the confirming authority goes away then no action can be initiated against the petitioner under the CCA Rules. The basis for initiating the action under the CCA Rules is that the proceedings of the GCM have been rendered null and void and the revision had become impracticable. When such is not the position, then, the authorities are required to proceed under the Army Act and the Rules made thereunder. Only one course is required to be adopted by the authorities. Regulation 32 of the Border Roads Regulations provides as under : "(a) Member of the General Reserve Engineer Force will be governed by the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 as amended from time to time. Only one course is required to be adopted by the authorities. Regulation 32 of the Border Roads Regulations provides as under : "(a) Member of the General Reserve Engineer Force will be governed by the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 as amended from time to time. (b) Notwithstanding the above, all members of the General Reserve Engineer Force will be subject to certain provisions of the Army Act, 1950 and Rules made thereunder as laid down in SROs 329 and 330 of 1960 reproduced as annexure 5, for purpose of discipline only. When the offence is such that the provisions of Army Act, 1950 as extended to GREF, apply for purposes of discipline, it will be open to the appropriate disciplinary authority under the Army Act, 1950 to proceed under its provisions. In all other disciplinary cases the provisions of CCS(CCA) Rules, 1965 will apply." From Clause (b) of para 32 of the Regulations, it would appear that when the offence is such that the provisions of the Army Act, 1950 as extended to GREF apply for purposes of discipline, it will be open to the appropriate disciplinary authority to proceed under the Army Act. In all other disciplinary cases, the provisions of the CCA Rules will apply. This court had an occasion to consider this question in S.B. Civil writ petition No. 370 of 1978 A. K. Mallick v. Union of India (decided on August 11, 1978) . This Court observed that the findings arrived at by the Court of Inquiry may thereafter lead to the award of punishment either by the court-martial or by the Disciplinary Authority in the proceedings conducted under the CCA Rules. The court after referring to para 32 of the Regulations, observed that it is open to the disciplinary authority under the Army Act to proceed either by one of the methods of the court-martial prescribed under the Army Act and the Army Rules or may take action under the CCA Rules. Reference may also be made to the Administrative Instructions issued by the Government of India under the CCA Rules. Reference may also be made to the Administrative Instructions issued by the Government of India under the CCA Rules. In Brouchure on Central Civil Services (Classification, Control and Appeal)Rules,1965, para 4 of the decision No. 3(B)under Rule 14 of the Army Rules, it is stated that if the facts or allegations had come to be examined by Court of competent jurisdiction and the court has given a finding that the allegations are not true, then it is not permissible to hold a departmental enquiry in respect of the charge based on the same facts or allegations. It has been considered above, that still the finding is not reversed by the GCM itself on revision, the finding of the GCM exists and so under the above Government decisions, it is not permissible to hold a departmental enquiry. The administrative decisions of the Government of India are binding on it. Reference in this connection may be made to the State of Uttar Pradesh v. Chandra Mohan Nigam and others(A.I.R. 1977 S.C. 2411) and Capt. Virendera Kumar v. Union of India (1981 Lab I.C. 433) : I may also refer here to a decision of the Supreme Court in Dr. Akshaibarlal and others v. Vice Chancellor, Banaras Hindu University and others (A.I.R. 1961 S.C. 619) . There Statute 30 provided for special action in special circumstances. The services of the incumbents were terminated by the University after following the procedure in the New Statute No. 30 and show cause notices were issued. But the incumbents had obtained a stay order from the High Court. Then, the Executive Committee had abandoned the section under Statute 30 and proceeded to act under powers, which it thought flowed from the agreements and the Ordinances and terminated the services of the incumbents. It was held that 'after the special procedure under the Statute No. 30 was invoked, it could not be dropped in the middle and other powers exercised. The University Act expressly made the Ordinance subject to the Statutes, and in case of any clash between them, the Ordinances must be made to stand down. Further, Statute No. 30 was enacted by Parliament to meet a special situation, (existence of which was admitted) and contained a Code for dealing with certain special kinds of cases. To that extent, the implication was not only one way, but was also clear. Further, Statute No. 30 was enacted by Parliament to meet a special situation, (existence of which was admitted) and contained a Code for dealing with certain special kinds of cases. To that extent, the implication was not only one way, but was also clear. The University could not, having started enquiries under Statute No. 30, abandon the enquiries in mid-course and pass on to something else." 31. In Dharam Pal Kukret'y case supra, referred 'to above, the notice to show cause for removal from service was field to be without jurisdiction and invalid, and it was observed that the authorities has an opt ion initially either to have the officer tried by the court-martial or to take action under rule 14 of the Rules. How the matter was considered in this case has already been dealt with above. 32. Mr. J. P. Joshi, learned counsel for the respondents submitted that all the provisions of the Army Act do not apply to the personnel of GREF. Clauses (d), (e), (f ), (g), (h) and (k) of Section 71 of the Act relate to punishments, which have been excepted in their application to the GREF, so the punishments relating to the service cannot be inflicted on the GREF personnel under the Army Act. Besides that the subject matter of the proceedings before the GCM and the subject matter of the disciplinary proceedings under the CCA Rules is different. There was no charge against the petitioner in the proceedings under the Army Act, which is the subject matter of charge of Article- II in the Disciplinary Proceedings under the CCA Rules and so, on that basis as well, it is competent for the disciplinary authority to proceed under the CCA Rules. I am unable to agree with this submission of the learned counsel. Charge of Article 11 is directly related to charge in Article I. It is in connection with the offence of abatement of theft under section 66, the petitioner h is been charged that the acts may not be proved so, he abused his official position and authority in manipulation of certain records of his unit, and in influencing and pressurising certain members of the staff of the unit not to reveal the truth and to make false statement. The allegations on the second charge have been the subject matter of consideration in the proceedings before the GCM and reference may be made to the final address to the prosecutor (Ex.3) and summing up by the Judge- advocate (Ex.4) in S B. Civil writ petition No. 802 of 1978. The nature of manipulation of records and influencing of the witnesses has been considered and the Judge-advocate invited the attention of the GCM to the provisions contained in Section 139 and Rule 62. The GCM is competent to record a special finding for an offence 'not charged'. Section 57 deals with the offences relating to falsifying official documents and false declaration and section 60 deals with the false evidence. Abatement of these offences, is specified in Section 66. Thus, in substance, the second charge in the disciplinary proceedings is a part and parcel of charge No 1 and can also be independently dealt with by the GCM by virtue of provisions contained in Section 139 and Rule 62. Viewed in this light; it cannot be said that the subject matter of the proceedings are different . When a particular act amounts to an offence and when the same can he dealt with the Arms Act and when the proceedings have been initiated under the Army Act. it is not open to the disciplinary Authority to proceed under the CCA Rules. 'thus viewed from any point the action taken by the disciplinary Authority under the CCA Rules cannot be upheld and is liable to be quashed. 33. In the light of the above consideration and findings, both the writ petitions deserve to be allowed Accordingly. both the writ petitions are allowed, the order of the Confirming Authority dated August 30, 1976 (Ex. 3) in S.B. Civil writ petition No. 389 of 1978 is quailed and the memorandum dated March 10, 1978 (Ex. 7) and the charge sheet (Ex. 8) along with its appendages Exhibits 9, 10 and 11 i:i the second writ petition are quashed. However, the Confirming Authority shall proceed with the matter of confirmation of the findings of the GCM and in case, it is of the opinion that the findings of the GCM is not to be conformed the authority shall afford an opportunity of hearing to the petitioner and shall pass a speaking and reasoned order and shall proceed in the light of the observations made above. 34. The parties shall bear their own costs of both the writ petitions. *******