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2000 DIGILAW 971 (DEL)

DARSHAN LAL SACHDEV v. UNION OF INDIA

2000-11-10

A.K.SIKRI

body2000
A. K. SIKRI ( 1 ) PETITIONER was a member of the armed forces. During the period 16/06/1993 to 2/12/1993 he was hospitalised as he was suffering from various ailments. When he was still in the hospital charge-sheet dated 28/11/1993 was served upon him alleging certain irregularities. These irregularities related to carrying out purchase of 3140 cakes of soap toilet for his troop for Rs. 14. 915. 00e Rs. 4. 75 per cake. General Court Martial was convened and the petitioner was tried. This resulted in the conviction of the petitioner. The punishment awarded to the petitioner wide order dated 12/08/1994 is reproduced below: "the Court sentence the accused IC-261631 Lieutenant Colonel Darshan Lal Sachdev. 27 Mountain Division Ordnance Unit, attached to Headquarters 123 Mountain Brigade:- (a) to be cashiered and: (b) to forfeit either years past service for the purpose of pension. " ( 2 ) THIS sentence was confirmed by the Confirming Authority vide order dated 10/03/1995. ( 3 ) IN the meantime, petitioner retired from service on 31/07/1974 (A. N. ). petitioner also filed post confirmation petition dated 2 1/01/1997 against the aforesaid conviction. However, this petition was also rejected by the Government vide order dated 11/12/1997. At this stage, it may be mentioned that on the retirement of the petitioner from service on 31/07/1994 petitioner started getting pension which was released upto 10/03/1995. However, once the disciplinary proceedings concluded and punishment awarded vide order dated 10/03/1995 the pension of the petitioner was stopped as per Regulation 16 (a) of the Pension Regulations for Army (Part-1), 1961. ( 4 ) THIS Regulation reads as under:- "regn 16 (a): when an officer who has to his credit the minimum period of qualifying service required to earn pension, is cashiered or dismissed or removed from service, his pension, may at the discretion of the President be forfeited or be granted at a rate not exceeding that for which he would have otherwise qualified had he retired on the same date. " ( 5 ) IN order to give the petitioner another opportunity to be heard in person, a show cause notice has been issued vide Government of India, Ministry of Defence letter No. B/39020/331/ag/ps-4 (c)/1433/a/d (Pens/sers) dated 22/09/1995 to urge upon reason for his entitlement of pensionery benefits is view of his punishment of cashiering. " ( 5 ) IN order to give the petitioner another opportunity to be heard in person, a show cause notice has been issued vide Government of India, Ministry of Defence letter No. B/39020/331/ag/ps-4 (c)/1433/a/d (Pens/sers) dated 22/09/1995 to urge upon reason for his entitlement of pensionery benefits is view of his punishment of cashiering. Petitioner submitted reply dated 6/11/1995 and after consideration of this reply order dated 7/11/1997 was passed forfeiting the entire pensionery benefits to which the petitioner, would have been entitled had he retired in the normal manner on the date of cashiering. ( 6 ) ALTHOUGH various submissions are made in the writ petition challenging the court martial proceedings and the award of punishment as well as stoppage of pension at the time of arguments Ms. Shyamala Pappu, learned senior counsel appearing for the petitioner laid stress on the following submissions: ( 7 ) THE petitioner had excellent track record and his conduct was exemplary. This was so testified by the respondent themselves in the statement dated 10/08/1994 relating to the character and particulars of the service of the petitioner. Petitioner had not committed any irregularity or misconduct during his entire service career. The charge-sheet in question was totally misconceived as petitioner had not committed any irregularity while carrying out local purchase of soap toilet in question. It was submitted that the price at which petitioner purchased the aforesaid cakes was Rs. 4. 75 per cake (total cakes purchased were 3140 for Rs. 14, 915. 00 ). This was infact the rate prevailing and the same was rather lesser than the normal rate at which the respondent were making such purchases. Therefore, there was no question of defrauding the respondent in making the aforesaid purchase. The total amount Involved was only Rs. 14,915. 00. Therefore, the petitioner was unnecessarily implicated and charge-sheeted for the alleged irregularity. The punishment imposed for the alleged offence was clearly harsh and shockingly disproportionate to the alleged irregularity. ( 8 ) ON the other hand, it was argued by Mr. Keshav Dayal, learned senior counsel appearing for the respondents that the petitioner was rightly charge-sheeted for irregularities in local purchase of soap toilet, as while making this purchase he had not followed the procedure contained in Army Headquarter letter No. 42919/1/mgo/ EM/gsandc dated 23/02/1990. ( 8 ) ON the other hand, it was argued by Mr. Keshav Dayal, learned senior counsel appearing for the respondents that the petitioner was rightly charge-sheeted for irregularities in local purchase of soap toilet, as while making this purchase he had not followed the procedure contained in Army Headquarter letter No. 42919/1/mgo/ EM/gsandc dated 23/02/1990. As per this letter petitioner was required to procure the item for units through Canteen Store Department (independent by resorting to Unit Local Purchase Order-ULPO ). Instead petitioner purchased this items directly from outside sources and thereby violated the mandate contained in aforesaid letter dated 23/02/1990. According to the learned counsel, the General Court Martial was properly convened which gave due opportunity to the petitioner to defend himself. Plethora of evidence and other material-was produced before it. General Court Martial took into consideration the said evidence and material and found that the petitioner was guilty of the charge and accordingly sentenced his. There was no irregularity and illegality in the, General Court Martial proceedings. In view of this, the Court should not interfere in the matter. In this connection, submission was made that the power of the Court under Article 226 of the Constitution in respect of the General Court Martial (GCM) proceedings in a case related to the Army Act and Rules is extremely limited. Reference was also invited to the decision of the Supreme Court in the case of Union of India and others Vs. Major A. Hussain reported in AIR 1998 SC 575, wherein it was held that the High Court does not have the powers to minutely examine the records of the GCM as if it is sitting in appeal. It was held that the GCM is not subject to the superintendence of the High Court under Article 227 of the Constitution. It was further held that "if a court martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court for that mater any Court must stay its hand". It has been further observed that "it has been rightly said that court-martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It has been further observed that "it has been rightly said that court-martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court martial for an act which is an offence under the Act". ( 9 ) IT was further submited that in the proceed case, the General Court Martial took into consideration all the evidence and other material produced before it and found that the petitioner is guilty of the charge and accordingly sentenced him. There is no irregularity and illegality and the petitioner was provided with reasonable opportunity to defend himself. The Supreme Court had examined in a great detail the verious provisions of the Army Act and Rules in the judgment of Union of India andothers Vs. Himmat Singh Chahar reported in JT 1999 (3) SC 631. It was held by the Supreme Court that "the said power of Judicial review cannot be a power of an Appellate Authority permitting the High Court to re-appreciate the evidence and in coming to a conclusion that the evidence is insufficient for the conclusion arrived at by the Competent Authorities in Court Martial proceedings". ( 10 ) IT was further argued on behalf of the respondents that the charge against the petitioner was serious and grave and the penalty imposed was reasonable and the Court cannot go into this aspect under Article 226 of the Constitution of India. Further more the convening authority was not bound in law to reduce the punishment even after holding that the conviction on the second charge was not proper. There is no , illegality as the charge was of grave and serious nature warranting the quantum of punishment imposed. ( 11 ) LEARNED counsel for the respondents also produced the voluminous record of the proceeding of the General Court Martial at the time of hearing, in two volumes containing more than 1000 pages, which was retained by this Court. ( 12 ) I have considered the respective submissions of the parties and have also gone through the relevant portions of the record. I am inclined to agree with the submissions of the learned senior counsel for the respondents. ( 12 ) I have considered the respective submissions of the parties and have also gone through the relevant portions of the record. I am inclined to agree with the submissions of the learned senior counsel for the respondents. The charge which is framed against the petitioner in the charge-sheet related to the purchase of 3140 cakes of soap toilet in violation of Army Headquarter letter dated 23/02/1990. As per the instructions contained in this letter the said item could be procured by units only through Canteen Store Department by resorting to the proper procedure. The petitioner had violated this procedure by making local purchase of the item in question. This defence of the petitioner that the prices at which the petitioner purchased the said material is allegedly less than the price at which the material is available would be of no help to the petitioner. The matter relates to violation of procedure contained in Army Headquarter letter dated 23/02/1990. The General Court Marital having found, on the basis of material produced on record, that the charge levelled against the petitioner stood proved, the petitioner could be convicted for this charge. The General Court Martial record shows that the proceedings went on for number of hearings. Witnesses were examined and documents produced. Proceedings ran into more than 600 pages. On the basis of these proceedings findings were recorded by General Court Martial holding that both the charges stood proved against the petitioner. Reasons for holding so are given in the findings recorded in pages 611 to 616 of the first volume. On this basis impugned sentence was pronounced on 12/08/1994. Nodoubt when the matter went before the Confirming Authority the conviction on the alternate charge was set aside. However, the punishment was still maintained keeping in view the seriousness of the first charge. This Court, in this writ petition can neither act as an Appellate Authority in so far as findings of the disciplinary Authority are concerned, nor can it interfere with the punishment imposed unless it is found that the punishment is shockingly disproportionate to the charge. The matter regarding sentence awarded by General Court Martial was considered by the Confirming Authority. Even the post-confirmation petition filed by the petitioner is dismissed by the Government. The matter regarding sentence awarded by General Court Martial was considered by the Confirming Authority. Even the post-confirmation petition filed by the petitioner is dismissed by the Government. These Authorities have taken, into consideration all the aspects of the matter and have considered various submissions made by the petitioner but did not find any merit in the same. Therefore, there is merit in the argument advanced by the learned counsel for the respondent and the judgment cited by him and referred to above clearly become applicable in the instant case. ( 13 ) BEFORE concluding, it may be pointed out that although the petitioner in the writ petition had challenged the impugned orders on various grounds like improper composition of the Court Martial, not granting reasonable opportunity to defend him; erroneous findings recorded by the General Court Martial etc. As stated earlier these contentions were not pressed by the learned senior counsel for the petitioner at the time of arguments. Still I have glanced through the relevant portins of the record and the counter affidavit filed on behalf of the respondents rebutting the aforesaid contentions and I find no infirmity in the Court Martial proceedings. This writ petition is, therefore, without any merit and is accordingly dismissed. ( 14 ) NO costs.