1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.423 of 2005 Shri Sanjay Marutirao Patil. .. .. Petitioner Versus 1.Union of India 2.The Chief of Army Staff 3.Commander 4.Commandant, Ordnance Transit Group . .. .. Respondents Mr.N.V. Bandiwadekar for petitioner. Mr.J.C.Satpute with Smt.Lata Patne i/by S.S. Sarkar for respondents. ----- CORAM : SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. Date of reserving the judgment : 15th January 2008 Date of pronouncing the judgment : 31st January 2008 JUDGMENT : (Per Roshan Dalvi, J.) 1.The petitioner joined the Indian Army as a Sepoy in the year 1990. He was promoted to the post of Naik in the year 1994- 95. He was served a charge-sheet setting out three charges of misconduct against him on 31.8.1999. 2. These three charges were framed against the petitioner under Section 63 of the Act. Section 63 reads thus:- 2 “63. Violation of good order and discipline. -Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years of such less punishment as is in this Act mentioned.” The charges were that the petitioner incorrectly prepared certified Receipt Convoy Note of others and for having furnished false information of not having received buckets of steel unloaded on 27.2.1996. The petitioner was called upon to face a Summary Court Martial in respect of those charges. He pleaded guilty to each of the charges in writing. After considering his defence the petitioner was awarded the punishment of reduction in rank to that of Sepoy. 3. The said order was brought before the higher authority. The higher authority considered it to be an unreasonably lenient order for the charges that were framed against the petitioner. He considered that the charges were fraudulent in nature. Hence, he issued a show cause notice dated 24.3.2000 to the petitioner disclosing that offences were fraudulent in nature and called upon the petitioner to explain why he should not be discharged from Army service 3 under the provisions of Section 20 of the Army Act, 1950 (the Army Act) read with Rule 17 of the Army Rules, 1954 (the Army Rules). Section 20 and Rule 17 read thus:- “ 20. Dismissal, removal or reduction by the Chief of the Army Staff and by other officers.- (1) The Chief of the Army Staff may dismiss or remove from the service any person subject to this Act, other than an officer. (2)The Chief of the Army Staff may reduce to a lower grade or rank or the ranks, any warrant officer or any non-commissioned officer. (3)An officer having power not less than a brigade or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his command other than an officer or a junior commissioned officer. (4)Any such officer as is mentioned in sub-section (3) may reduce to a lower grade or rank or the ranks, any warrant officer or any non-commissioned officer under his command. (5)A warrant officer reduced to the ranks under this section shall not, however, be required to serve in the ranks as a sepoy. (6)The commanding officer of an acting non- commissioned officer may order him to revert to his permanent grade as a non-commissioned officer, or if he has no permanent grade above the ranks, to the ranks. 4 (7)The exercise of any power under this section shall be subject to the said provisions contained in this Act and the rules and regulations made thereunder.” 17. Dismissal or removal by Chief of the Army Staff and by other officers.- Save in the case where a person is dismissed or removed from service on the ground of conduct which has led to his conviction by a criminal court or a court-martial, no person shall be dismissed or removed under sub-section(1) or sub-section (3) of section 20; unless he has been informed of the particulars of the cause of action against him and allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service : Provided that if in the opinion of the officer competent to order the dismissal or removal, it is not expedient or reasonably practicable to comply with the provisions of this rule, he may after certifying to that effect, order the dismissal or removal without complying with the procedure set out in this rule. All cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported to the Central Government.” 4. The petitioner replied to the show cause notice on 10.4.2000. He denied the allegations made therein. Consequently, it is seen that, though he had pleaded guilty to the three charges, he denied that those charges were fraudulent in nature. Upon such denial, a Court of Inquiry came to be held in January 2001 to ascertain the facts 5 revealed by the petitioner in the notice. 5. Under Rule 177(1) of the Army Rules, a Court of Inquiry is an assembly of officers directed to collect evidence and to report with regard to the matter referred to them. Rule 177(1) of the Army Rules reads thus:- “177. Courts of Inquiry.-(1) A court of inquiry is an assembly of officers or of officers and junior commissioned officers or warrant officers or non- commissioned officers directed to collect evidence and, if so required, to report with regard to any matter which may be referred to them.” The procedure of the Court of Inquiry is set out under Rule 179. The relevant sub-sections i.e. sub-sections (3), (4), (5A) and 6 of Section 179 read as under:- “ (3) Previous notice should be given of the time and place of the meeting of a court of inquiry, and of all adjournments of the court, to all persons concerned in the inquiry except a prisoner of war who is still absent. (4)The court may put such questions to a witness as it thinks desirable for testing the truth or accuracy of any evidence he has given and otherwise for eliciting the truth. 6 (5A) Any witness may be summoned to attend by order under the hand of the officer assembling the court. The summons shall be in the Form provided in Appendix III. (6)The whole of the proceedings of a court of inquiry shall be forwarded by the presiding officer to the officer who assembled the court.” 6. In this case, the relevant notice was given to the petitioner of the date and time of the meeting of the Court of Inquiry. He appeared as a witness. He was examined. The Court put to him such questions as it thought desirable for testing the truth or accuracy of the statement made by him in his reply and for eliciting the truth. The petitioner has not challenged that fact. A finding of that court has been given to the authority concerned. 7. It is seen that the Court of Inquiry conducted its proceedings by examining various witnesses, including the petitioner and came to the finding that the petitioner had given false and misleading reply in his say as well as in his evidence before the Court of Inquiry. 8. The petitioner was, therefore, issued a show cause notice on 17.4.2001 to show cause why he should not be discharged from the Army under Rule 13(3) item III(V) as his 7 services were no longer required, being undesirable. 9. The petitioner filed his reply to the said show cause notice on 14.6.2001. The respondents terminated the petitioner's services on 29.4.2002. 10. The petitioner preferred an appeal against the said order on 25.12.2002, which came to be rejected on 22.12.2003. 11. This writ petition challenges the order of dismissal of the petitioner as well as the order dismissing the appeal. 12. The petitioner faced the Summary Court Martial. The petitioner was awarded punishment under Section 71(f) of the Act. That was reduction in his rank from Naik to Sepoy. The petitioner has not challenged the said order. Mr.Bandiwadekar appearing for the petitioner concedes that, that order must hold against the petitioner. It is only because the higher authority to whom the order was sent considered that the offences were fraudulent in nature that the petitioner was issued a show cause notice as to why he should not be discharged from Army service. That was an administrative action. 8 13. It may be mentioned that the finding and sentence of the Summary Court Martial was not required to be confirmed by the higher authority as in the case of other Courts Martial. 14. It could be carried out forthwith. It is, however, required to be forwarded under Section 161 of the Army Act to the officer commanding revision or brigade within which the trial was held who may, under Section 162 of the Act, set aside the proceedings or reduce the sentence so imposed. Sections 161 and 162 read thus:- “161. Finding and sentence of a summary court- martial.- (1) Save as otherwise provided in sub- section (2), the finding and sentence of a summary court-martial shall not require to be confirmed, but may be carried out forthwith. 162. Transmission of proceedings of summary courts-martial.- The proceedings of every summary court-martial shall without delay be forwarded to the officer commanding the division or brigade within which the trial was held, or to the prescribed officer; and such officer, or the Chief of the Army Staff, or any officer empowered in this behalf by the Chief of the Army Staff, may, for reasons based on the merits of the case, but not any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the court might have passed.” 9 15. It is argued on behalf of the petitioner that the Commanding Officer has not set aside or reduced the sentence but has sought to enhance it. It is argued that the action is, therefore, without jurisdiction. 16. An administrative action is required to be initiated for dismissal, removal or reduction in rank of any person subject to the Army Act. In the case of the petitioner it was to be taken by the Sub Area Commander of the rank of Brigadier. Such order of dismissal, removal or reduction in rank is to be passed under Section 20 of the Army Act. That contemplates an administrative action to be undertaken subject to the Army Rules. 17. Rule 17 sets out how the administrative action is required to be initiated. Under Rule 17 of the Army Rules, the petitioner is required to be informed all the particulars of the cause of action against him and is required to be allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from service. This, therefore, contemplates a show cause notice. It further contemplates consideration of the reply, if any, to the notice. The administrative action would be initiated for any act done on the part of the petitioner. Administrative action can be 10 initiated against any person in service, whether or not there are criminal proceedings against him. Similarly administrative action could be initiated against the petitioner, whether or not there was a Court Martial held against him. It is a parallel proceeding and is to be initiated as contemplated under the provisions of the Army Act and the Army Rules. 18. It is the case of the petitioner that for the same charge no action could have been taken against the petitioner after he was awarded any punishment under Section 71 of the Army Act. The petitioner has relied upon the provision contained in Section 121 of the Army Act, which prohibits a second trial. Section 121 reads thus:- “121. Prohibition of second trial. When any person subject to this Act has been acquitted or convicted of an offence by a court-martial or by a criminal court, or has been dealt with under any of the sections 80, 83, 84 and 85, he shall not be liable to be tried again for the same offence by a court-martial or dealt with under the said sections.” Under the said section, the petitioner could not have been tried of the aforesaid offences again by a Court Martial under Sections 80, 83, 84 and 85 of the Army Act. The petitioner has not been tried under those sections. The petitioner has not 11 been awarded any punishment under those sections. The petitioner has instead been proceeded against in an administrative action under Section 20 of the Army Act. Section 121 does not prohibit an administrative action after any person in Army service has been acquitted or convicted by a Court Martial. 19.It may be mentioned that the administrative action to be initiated against the petitioner would be dependent upon his reply to the show cause notice. The petitioner has been afforded the right of hearing contemplated under the Army Act. 20.Despite the fact that the petitioner had pleaded guilty to each of the three charges in the Summary Court Martial, the petitioner claimed that he was not present in the unit at the relevant time in his reply to the show cause notice. This reply would negate the petitioner' s plea of guilt. It was, therefore, verified. The verification was done in a Court of Inquiry. The petitioner was given a hearing. He was examined. Three other witnesses were also examined. Thereafter the authorities under the Army Act came to conclude that the reply of the petitioner that he was not present in the unit was false. This must be appreciated in 12 the light of the fact that for the same acts the petitioner had pleaded guilty earlier. 21. It is contended on behalf of the petitioner that action is sought to be taken against him under the charge of giving false evidence under Section 60 of the Army Act. Section 60 reads thus:- “ 60. False evidence. - Any person subject to this Act who, having been duly sworn or affirmed before any court-martial or other court competent under this Act to administer an oath or affirmation, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.” 22. It is not the case of the respondents that action has been sought to be initiated against the petitioner for the offence committed under Section 60 of the Army Act and hence, any false reply in a letter is not outside the purview of sanction by the authority in an administrative action. It is their case that the petitioner has committed the offence of violation of good order and discipline under Section 63 itself and has falsely replied that he was not present in the unit at the relevant time which fact, upon verification, has been found to be false and which has rendered his service in the 13 Army undesirable. Hence the petitioner's defence in the nature of an alibi has been verified to be false. Consequently, after following the procedure prescribed under Rule 17 of the Army Rules, action has been initiated under Section 20 of the Army Act against the petitioner. 23. It will have to be seen whether the petitioner has been discharged/dismissed from the Army after following the procedure prescribed by law. The only procedure prescribed under the Army Rules applicable to the petitioner is under Rule 17. The petitioner has to be informed of the particulars of the cause of action against him. The petitioner has been issued the show cause notice initially on 24.3.2000 when the administrative action was initiated against him. The petitioner had to be allowed reasonable time to state in writing the reasons urged against his dismissal or removal from service. The petitioner was given 15 days' time from the receipt of the notice to urge grounds against the proposed action. The petitioner sent his reply on 10th April 2000. His reply has been considered and verified. The administrative action is being sought to be initiated upon his reply. The petitioner has been afforded enough opportunity of being heard. The petitioner has been put in a number of questions in the inquiry which he had answered and which 14 had been considered by the Court of Inquiry. 24. It is contended on behalf of the petitioner that the order of dismissal passed against him is under Section 71(e) of the Army Act. It is not. The order has been passed against the petitioner under Section 20. The petitioner has not been dismissed from service upon being convicted by a Court Martial. The petitioner has wrongly challenged the punishment imposed upon him on the premise that it was the second order in the same Court Martial. It is seen that it was not so. 25. Consequently, the order dismissing him and the order in appeal cannot be faulted. 26. The documents reveal that the Commanding Officer has only sought to initiate administrative action upon concluding that the offences admittedly committed by the petitioner were fraudulent in nature. The administrative action was to be initiated under Sections 20 and 22 of the Army Act. Section 20 required action for dismissal, removal or reduction in rank. The action under Section 22 was required for retirement, release or discharge of any person from service. The action was to be taken in the manner 15 prescribed. The manner is prescribed under Rule 17 of the Army Rules. It is argued that there is a distinction between the dismissal and discharge and that the petitioner was to be discharged from Army service. We have gone through the Army Rules. We find that the procedure is prescribed for dismissal or removal from service under Rule 17. That procedure has been followed. He has been recommended for dismissal after following due procedure. Consequently, he was to sign the discharge roll. The due procedure that is followed is in issuing him a show cause notice allowing him reasonable time to reply and considering his reasoned reply. Upon seeing that his reasoned reply revealed that it was false and misleading, the further process of holding a Court of Inquiry has also been initiated under Rule 177 of the Army Rules. The report of the Court of Inquiry by the Colonel (Administrative) dated 29.4.2002 has resulted in termination of the service of the petitioner. The said report annexed as Exhibit-M to the petition sets out the procedure followed by the relevant authority and what it has revealed. It has concluded that necessary action is required to be initiated in terms of Section 20 of the Army Act read with Rule 17 of the Army Rules and consequently, the copy of IAFY-1948A (Discharge Roll) duly complied in all respects for the petitioner’s dismissal was to be forwarded to him. It 16 may be mentioned that the Report dated 29th April 2002 has shown that the procedure has already been followed and only the action is required to be initiated based upon the procedure. That action is for dismissal of the petitioner’s service. The IAFY-1948A (Discharge Roll) was accordingly forwarded to the petitioner on 10th May 2002 and the petitioner was informed to sign the discharge roll under the letter dated 10th May 2002 marked Exhibit-N to the petition. 27. Thereafter under the letter of Lt. Col. Commandant dated 31.8.2002, Exhibit-O to the petition, the petitioner’s wife was intimated that a Summary Court Martial was held and the petitioner was dismissed from service as per the directions of the Commander, Head Quarters, 21 Sub Area. The same is directed to take effect from 2.9.2002. 28. It can be seen that the petitioner has been subjected to the Summary Court Martial. He has not challenged the proceedings thereat. The petitioner has pleaded guilty to the charges levelled against him. Those charges were found to be fraudulent in nature. Hence, administrative action has been taken against the petitioner upon which action is taken. The punishment in the Summary Court Martial has not been enhanced. Due 17 procedure has been followed. The action has been taken against the petitioner under Section 20 of the Army Act and not under Section 71(e) as contended on his behalf. The petitioner has preferred an appeal therefrom. 29. The petitioner has challenged the order dismissing his appeal dated 22.12.2003 as also the letter dated 31.8.2002 intimating his wife about the action taken against the petitioner. 30. The jurisdiction of this court for judicial review is limited in matters pertaining to the Army. The petitioner’s Advocate has drawn our attention to the recent judgment of the Apex Court in Pradeep Singh vs. Union of India & ors. 2007 DGLS 443. In paragraph 8 of the said judgment, it is held that the Court Martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution though the Court Martial itself is not subject to the superintendence of the High Court under Article 227 of the Constitution. It is further held in that judgment that if the 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 must stay its hands. This is because the procedures under 18 the Army Act, more specially the Court Martial, are held to be a specialized part of overall mechanism by which the military discipline is preserved. Any person serving in the Army and subject to the Army Act can be tried by a Court Martial for any act which is an offence under the said Act. The offences under the Act are set out in Chapter-VI relating to offences from Sections 34 to 70. It is further observed that even the Administrative Instructions of the Army show that the procedure prescribed is a fair procedure. In this case, we find that the Court Martial has been properly convened. In fact, it has ended to the petitioner’s plea of guilt on all the charges. The later action against the petitioner is sought to be challenged though the challenge is misconceived as a second trial. In our jurisdiction under Article 226, we are only required to see whether the later action is properly taken. We find that, that is an administrative action initiated and completed by following the procedure prescribed under the Army Act and the Army Rules. We also find that the Court of Inquiry proceedings have been held so as to give the petitioner a complete right of hearing thereunder. It is not possible for us to go into the proceedings of the Court of Inquiry or the subjective satisfaction arrived at by the Commanding Officer in concluding about falsity of the petitioner’s reply from the 19 evidence gathered by the Court of Inquiry determining the extent of punishment upon the petitioner since these proceedings are not under the supervisory jurisdiction of this court as held in the judgment in Pradeep Singh (supra). 31.We have been shown the judgment in Chief of the Army Staff & ors. vs. Major Dharam Pal Kukerty AIR 1985 SC 703 in which the procedure followed against an officer under Rule 14 of the Army Rules after a Court Martial has been considered. We may mention that the administrative action to be initiated against an officer in the Army by termination of his service is under Section 19 of the Army Act. For such termination the due procedure established under the Army Rules is laid down under Rule 14 thereof. For the dismissal of a person other than an officer under Section 20, the procedure established under