1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JOHDPUR. JUDGMENT Cheta Ram Vs. Union of India & Ors. D.B. CIVIL SPECIAL APPEAL (WRIT) NO.552/1996 against the judgment and order dt.9.8.1996 passed by learned Single Judge in S.B. Civil Writ Petition No.1980/96 Date : 19.7.2007 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE MANAK LALL MOHTA Mr. S.K. Nanda for the appellant. Mr. Kuldeep Mathur for the respondents. ______ BY THE COURT (PER HON'BLE RAJESH BALIA, J.) Heard learned counsel for the parties. This appeal is against the judgment of learned Single Judge dated 9th August, 1996 by which the writ petition filed by the appellant was dismissed in limine by observing that the petitioner was caught red- handed selling four tins of grease belonging to the Force. The evidence was recorded and on the basis of that evidence, he was terminated from service. His 2 appeal to the Lt. General, who was Commander in Chief, was also rejected. The learned Single Judge observed that cases of misappropriation of army property must be severely dealt with, few procedural lapses of hyper technical nature need not hinder maintenance of discipline, and dismissed the petition in limine. This led to filing of this appeal. Reply to the writ petition was filed after the appeal was admitted. When the matter was heard on 13.3.2007, the Division Bench hearing the appeal opined after hearing for some time necessity to look into the record of the court martial proceedings. The record of the court martial proceedings has been placed for our perusal today in pursuance of the order dated 13th March, 2007. The petitioner's case appearing from the 3 petition is that he was appointed to the Indian Army on 12th May, 1979 as L/NK and then rose to the rank of Havaldar after obtaining regular promotion in 1990 and had unblemished record until the alleged incident in question happened pursuant to which he was dismissed from service. Shorn of the technicalities the tentative charges which were framed after hearing of summery of evidence on 21st September, 1995 and the charge which was referred to summary court martial reads as under:- TENTATIVE CHARGE SHEET The accused No.13612706Y Hav Cheta Ram Jat, 10 PARA (SPECIAL FORCE), is charged with:- ARMY ACT DISHONESTLY MISAPPROPRIATES SECTION 52(b) PROPERTY BELONGING TO THE GOVT. In that he, at Jodhpur, on 02 A pr 95, at 1230h, attempted to sell 110 kg of grease, the property of Govt for a price of Rs.5800/-.” 4 “CHARGE SHEET The accused No.13612706Y Hav Cheta Ram Jat, 10 PARA (SPECIAL FORCE), is charged with:- ARMY ACT DISHONESTLY MISAPPROPRIATES SECTION 52(b) PROPERTY BELONGING TO THE GOVT. In that he, at Jodhpur, on 02 A pr 95, at 1230h, attempted to sell 110 kg of grease, the property of Govt for a price of Rs.5800/-.” Apart from alleging the irregularities in recording of summary of evidence on 26th October, 1995 after service of tentative charge sheet dated 21st Sept., 1995, the final charge was framed on 15th December, 1995 and the petitioner was informed that he shall be tried by court martial on 22nd December, 1995. Further the petitioner's case is that he persuaded through his designated friend to plead guilty which would lead to mitigate punishment in the form of reduction in rank. Again leaving aside mere technicalities, the 5 petitioner's specific case is that in pursuance of his pleading guilty in the aforesaid circumstances, he was informed that he has been punished with reduction in rank on 22nd December, 1995 itself. But on 22nd December, 1995 itself at about 8 PM, the petitioner was required to obtain clearance certificate from the various departments without informing about the punishment of dismissal and on 23rd December, 1995, he was brought before parade and was relieved from his rank and punishment of dismissal was pronounced. The petitioner urges that according to the record, the court martial commenced at 13:30 PM on 22.12.1996. It concluded at 14:45 PM on 22.12.1995 that is to say a court martial commenced at 1:30 PM and concluded at 2:45 PM. But punishment has already been imposed prior to that. Hence the proceeding was merely a rig morale. The record of summary court martial produced before us substantiate this conclusion. The punishment imposed by the summary court martial records 2 punishments i.e. (I) to be 6 reduction of rank and (II) to be dismissed from service. Curiously enough the promulgation and extract of summary court martial has been recorded at 11 hours on the 22nd Day of December, 1995 that is to say even prior to the commencement of the proceedings for summary court martial on 22.12.1995. In this connection, he further points out that on 22nd December, 1995 itself a clearance certificate was obtained which could have only followed the promulgation of order made earlier to be implemented on 22.12.1995 Annex.A/8 has been placed on record, which has not been denied. This can lead only to one conclusion that the proceedings about punishment have already been recorded before the commencement of summary court martial and it has already been decided that punishment of dismissal to be awarded. Our this conclusion is verified with the memorandum in terms of Army Order 309/73 recorded 7 by the Commanding Officer at the time of promulgating order which is also dated 22nd December, 1995. It would be profitable to reproduce the whole of it. “MEMORANDUM IN TERMS OF ARMY ORDER 309/73 1. No.13612706Y Hav Cheta Ram Jat brought up for Summary Court Martial on a charge under Army Act Sec 52(f) i.e. misappropriation of Govt property. 2. No 13612706Y Hav Cheta Ram Jat was RP Hav of the unit, therefore he was responsible for stopping any theft from the unit lines. In stead of stopping theft he himself succumbed to the pressures of need and greed. Therefore, the gravity of offence is higher in his case as he not only misappropriated the Govt property but also failed to perform his duty in safeguarding against misappropriation. 3. Through out investigations and proceedings of SCM the individual pleaded guilty and behaved in a soldierly manner. During the period awaiting trial and during trial the individual was observed to be repentant. Keeping these aspects in view and the fact that in past he has been very loyal and honest and has been being assigned tasks of important nature, I felt that the individual needs reformatory punishment. However as continuance in service of soldier charged with such an offence is not in the interest of services Hav Cheta Ram Jat has been dismissed from service. 8 4. In awarding the sentence of reduction to ranks and dismissal from service, I have been guided by following two factors :- (a) Undesirability of the continuation of individual in service in terms of guidelines contained in Para 448 read with 468(c) of the Regulations for the Army (Revised) 1987. (b) The past unblemished conduct of the individual and soldierly manner in which he pleaded guilty. Station : C/O 56 APO (Sheonan Singh) Dated : 22 Dec 95 Colonel Commanding Officer 10 PARA (SF) From the perusal of aforesaid noting, it is clear that Commanding Officer himself was convinced that it was not a case for extreme penalty of dismissal and probably he was tormented between desirability of the continuing with the service of the delinquent on the one hand and providing him lessor punishment keeping the exemplary behaviour and the service record which incumbent has kept up till that time. This is clear from the remark recorded in the proceedings of court martial and also in para 3 of the report reproduced above wherein the Commanding Officer has complemented the petitioner with remark about his soldierly behaviour 9 throughout the investigation and that he has been very loyal and honest and that he has been assigned the task of an important nature. Notwithstanding all this, it will be desirable to continuous service, he has given reasons for awarding the sentence of reduction of rank. These two things go to show that he considered the past conduct in the manner in which he has been required to do and propose lesser punishment than dismissal that is to say awarding of punishment of reduction in rank. But in no case he has made out a case for awarding two punishments. We further find that one Shri Ramakrishnan, had been nominated as prosecution witness in the summary report prepared for the summary court martial. Yet he has been nominated as independent observer also. This belies the fairness of proceedings of the court martial proceedings. The prosecution witness named in the summary report could not have been appointed as observer on the court martial by any standard of fair play. 10 In that view of the matter, we are of the opinion that the summary court martial procedure stood vitiated not by any hyper technical flaws but flaws of substantial nature affecting the very basic requirement of fair play in the matter of holding departmental enquiry which has resulted in serious prejudice to the petitioner's case. This takes us to consider to what relief the petitioner is entitled to now. Undoubtedly the happening of incident has not been denied by the petitioner even now. Therefore, notwithstanding the defects in holding of the enquiry the end result about the alleged incident would not be exoneration even if the fresh enquiry is held. The flaw in the procedure has really affected the decision about measure of punishment to be awarded to the petitioner. Considering this aspect of the matter and taking note of the Commanding Officer's report that in 11 view of the alleged incident it is not desirable to continue the service of the petitioner but nonetheless looking to the entire past record which is of example nature, the punishment of dismissal is not the right punishment to be imposed. We are of the opinion that in these circumstances, it is a fit case for exercise of discretion which was within the domain of respondents under Section 13 of Army Act read with Rule 22 of the Army Rules to have discharged the services of the incumbent by premature bringing his services to an end but without affecting his future. Accordingly, instead of quashing the entire proceedings and remitting the matter back for holding summary court martial de novo at this belated stage, we deem it just and proper to direct that instead of punishment of dismissal or removal, on the totality of the circumstances, the petitioner be discharged from service with effect from the date the order of punishment was passed. There shall be no orders as to costs. Consequences of discharge order shall take place. 12 The writ petition is accordingly, disposed of. No order as to costs. [ MANAK LALL MOHTA], J. [ RAJESH BALIA ], J. babulal/