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2008 DIGILAW 4234 (MAD)

Sub. T. Appuni v. Chief of Army Staff

2008-11-17

M.JAICHANDREN

body2008
Judgment :- Heard the learned counsel appearing for the petitioner and the learned Central Government Counsel appearing for the respondent. 2. It has been stated that the petitioner was recruited to the Indian Army, on 168. After he had undergone the necessary training, he was posted to the 8 Madras Battalion at Nagaland, in the year 1969. Thereafter, he was promoted as a Subedhar Major. On 20.9.86, he was posted to the I.R.O. Independent Regiment, Delhi Cantonment. Thereafter, he was sent back to the 8 Madras Battalion. 3. It has been further stated that a Court of inquiry was held, on 25. 92, in respect of certain allegations made against the petitioner stating that the question papers for the written examination, conducted in the year 1987-88, for the direct entry Havildar Clerks had been sold by the petitioner. The proceedings of the Court of inquiry and its findings were not communicated to the petitioner. By efflux of time, the trial by Court Martial had become time barred. Thus, the petitioner had lost a valuable opportunity to prove his innocence. 4. A show cause notice had been issued to the petitioner, under Section 20 of the Army Act, 1950, read with Rule 17 of the Army Rules, 1954, by the proceedings of the Adjutant Generals Branch, Discipline and Vigilance Dte/DV-3, Army Headquarters, in No.C/04340/DV-3, dated 292. In the said notice, it had been stated that a Court of inquiry was held against the petitioner, on 25. 92, and on subsequent dates, in respect of the allegation of sale of question papers for Havildar Clerk examination during 1987 88. However, since a trial by Court Martial had become time barred, a notice, under Section 20 of the Army Act, 1950, read with Rule 17 of the Army Rules, 1954, had been issued. Fifteen days time had been granted to the petitioner to submit his explanation. 5. According to the letter submitted by the petitioner in the month of November, 1992, he had accepted the charges and he had sought for a lenient treatment. Thereafter, the Chief of Army Staff, the respondent herein, by an order, made in No.C/04340/DV-3, dated 3. 93, exercising his power, under Section 20(i) of the Army Act, 1950, read with Rule 17 of the Army Rules, 1954, directed the dismissal of the petitioner from service. Thereafter, the Chief of Army Staff, the respondent herein, by an order, made in No.C/04340/DV-3, dated 3. 93, exercising his power, under Section 20(i) of the Army Act, 1950, read with Rule 17 of the Army Rules, 1954, directed the dismissal of the petitioner from service. Thereafter, the petitioner had filed a writ petition before this Court in W.P.No.8391 of 1994, challenging the order of dismissal passed by the respondent, on 93. The said writ petition had been disposed of by this Court, on 17. 2001, directing the petitioner to file an appeal against the impugned order, within a period of three months from the date of receipt of a copy of the order. .6. Based on the said order, the petitioner had preferred an appeal, dated 19. 2001, before the respondent, under Section 27 of the Army Act, 1950. In the memorandum of appeal filed by the petitioner, he had raised various grounds to set aside the order, dated 93. The petitioner had submitted that he was not supplied with the findings of the Court of inquiry, nor he was given an opportunity to submit his defence. The show cause notice issued, on 210. 92, was vague and it was not clear as to what the actual charge against the petitioner was. However, on an erroneous appreciation of the facts and law, the respondent had dismissed the appeal, on 25. 2002, by proceedings No.C/07457/DV-3. Aggrieved by the order passed by the respondent, on 25. 2002, the petitioner has filed the present writ petition before this Court, under Article 226 of the Constitution of India. 7. A counter affidavit has been filed on behalf of the respondent taking note of the averments made by the petitioner. It has been stated that the petitioner was enrolled in the Madras Regiment, on 168. After his basic training, he was posted to 8 Madras Battalion, with effect from 3. 69. Subsequently, after serving in various Units/establishments, he was posted to Independent Recruiting Office (I.R.O), Delhi, in the rank of Sub, with effect from 20.86. During his tenure in the Independent Recruiting Office, Delhi, the petitioner was alleged to have involved in the sale of question papers meant for the written examination for Direct Entry Havildar Clerks, during the year 1987, which involves an act of criminal breach of trust. Thereafter, the petitioner had been dismissed from service, with effect from 14. During his tenure in the Independent Recruiting Office, Delhi, the petitioner was alleged to have involved in the sale of question papers meant for the written examination for Direct Entry Havildar Clerks, during the year 1987, which involves an act of criminal breach of trust. Thereafter, the petitioner had been dismissed from service, with effect from 14. 93, by the Chief of Army Staff, vide his minutes No.C/04340/DV-3, dated 3. 93, under Section 20(i) of the Army Act, 1950, read with Rule 17 of the Army Rules, 1954. Thereafter, the appeal filed by the petitioner, under Section 27 of the Army Act, 1950, on 19. 2001, had been rejected by the respondent, under Order No.C/07457/DV-3, dated 25. 02. Since the order of dismissal from service, issued against the petitioner, is in accordance with law, the writ petition filed by the petitioner cannot be sustained. 8. The main contention of the learned counsel appearing for the petitioner is that the impugned order passed by the respondent is without jurisdiction, as there is no statutory provision empowering him to entertain the appeal filed by the petitioner, under Section 27 of the Army Act, 1950. In fact, it is in clear violation of the principles of natural justice, according to which a person cannot be a judge in his own cause. The appeal filed against the respondent cannot be disposed of by the respondent himself. .9. On the other hand, the learned counsel appearing on behalf of the respondent had submitted that the appeal was disposed of by the respondent only in view of the fact that there was a direction by this Court, by an order, dated 17. 2001, in W.P.No.8391 of 1994, directing the respondent to dispose of the appeal filed by the petitioner, on merits, within a specified time. 10. At this stage of the hearing of the writ petition, Mr. K. Sridhar, the learned counsel appearing for the petitioner, as well as Mr. G. Jehanathan, the learned counsel appearing for the respondent, had submitted that the petitioner could file an appeal before the Central Government, challenging the impugned order of the respondent, dated 25. 2002, invoking Section 27 of the Army Act, 1950. 11. K. Sridhar, the learned counsel appearing for the petitioner, as well as Mr. G. Jehanathan, the learned counsel appearing for the respondent, had submitted that the petitioner could file an appeal before the Central Government, challenging the impugned order of the respondent, dated 25. 2002, invoking Section 27 of the Army Act, 1950. 11. In such circumstances, it is observed, without going into the merits of the case, that it is open to the petitioner to file an appeal before the Central Government, invoking the relevant provisions of the Army Act, 1950, and the rules framed thereunder, raising various grounds as may be available to the petitioner. On such appeal being filed, it is expected of the Central Government to pass appropriate orders thereon, in accordance with law, expeditiously. With the above observations, the writ petition stands closed. No costs.