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2010 DIGILAW 1255 (PNJ)

G. S. Dhillon Lt. Col (Retd. ) v. Union Of India

2010-03-22

ADARSH KUMAR GOEL, ALOK SINGH

body2010
Judgment Adarsh Kumar Goel, J. 1. This appeal has been preferred against order of learned Single Judge dismissing the writ petition of the appellant against proceedings before the General Court Martial, wherein following punishments were awarded to the appellant- "a) Forfeitures: To forfeit 4 years past service for the purpose of pension. b) Severe reprimand: To be severely reprimanded. c) Stoppage: To be put under stoppage of pay and allowances until he has made good the sum of Rs.2637/- (Rupees Two thousand six hundred thirty seven only) in respect of the sale proceeds of 1200 surplus gunny bags." 2. The appellant was granted Emergency Commission in the Army in October 1963. In 1983, he was promoted to the rank of Lieutenant Colonel and was posted on deputation to Assam Rifles. Court Martial proceedings were initiated against him on four charges: i) Tearing of 2/3 pages from official register; ii) Permitting sale of liquor from the Unit Canteen to civilians; iii) Failure to deposit Rs.2637/- being sale proceeds of 1200 surplus gunny bags. iv) Absenting without leave on 25th and 26th February 1986. He pleaded guilty to charges (ii), (iii) and (iv) and was exonerated of Charge (I) and was awarded the punishment mentioned above.The same was confirmed by confirming authority on 28.4.1988. 3 Contention raised in the writ petition filed by the appellant was that he being on deputation with the Assam Rifles, only Director General of Assam Rifles could convene the Court Martial and not the Army authorities. Reliance was placed on judgments of the Honble Supreme Court in Maj. Gen. Inder Jit Kumar vs. Union of India and others, AIR 1997 SC 2085 and Union of India and others vs. Harish Chandra Goswami, AIR 1999 SC 1940. 4. The writ petition was opposed by submitting that the petitioner having submitted to the jurisdiction of the Court Martial was estopped from challenging the same as held in Maj.GS.Sodhi vs. Union of India, MR 1991 SC 1617. it was also submitted that Assam Rifle was under the control of the Army. Reliance was placed on judgments of the Honble Supreme Court in Union of India and others vs. Himmat Singh Chahar, AIR 1999 SC 1980 and Union of India vs. Maj. A.Hussain, AIR 1998 SC 577. Learned Single Judge did not find any merit in the objection of the writ petition. Reliance was placed on judgments of the Honble Supreme Court in Union of India and others vs. Himmat Singh Chahar, AIR 1999 SC 1980 and Union of India vs. Maj. A.Hussain, AIR 1998 SC 577. Learned Single Judge did not find any merit in the objection of the writ petition. It was also held that no prejudice was caused to him on account of alleged irregularities. 5. We have heard learned counsel for the parties and perused the record. 6. The appellant in person repeated the objection raised before learned Single Judge and also submitted that the appellant having rendered military service of more than 25 years, the punishment was disproportionate to the alleged charge of not depositing Rs.2637/- or alleged sale of liquor to civilians and absence from duty for two days. He submitted that he pleaded guilty to the charge under the impression that a lenient view will be taken. Some times sale of liquor to residents of insurgency affected areas had to be allowed in larger interest. Action in such matters is not called for against a senior Army Officer. There was no occasion for unauthorized absence for two days nor default in deposit of Rs.2637/- was by the appellant personally. Having regard to 25 years of dedicated service of the appellant, at best recovery of Rs.2367/- and reprimand may be upheld but forfeiture of four years past service for purposes of pension was not called for. 7. Question for consideration is whether interference is called for with the holding of Court Martial or with the punishment imposed. 8. While we do not find any ground to interfere with the view taken by learned Single Judge that no prejudice was caused to the appellant by alleged irregularity in the matter of convening of the Court Martial, punishment imposed calls for reconsideration in the light of submissions noticed above, which have prima facie substance. 9. Accordingly, we allow this appeal and direct the concerned authorities to reconsider the punishment of forfeiture of four years of past service for pension within three months from the date of receipt of a copy of this order. If the petitioner is not satisfied with the order that may be finally passed, he will be at liberty to take his remedy in accordance with law.