SANJAY MARUTIRAO PATIL versus UNION OF INDIA AND OTHERS
[2020] 3 S.C.R. 329, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Facts
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SANJAY MARUTIRAO PATIL
v.
UNION OF INDIA AND OTHERS
(Civil Appeal No. 2448 of 2010)
JANUARY 24, 2020
[L. NAGESWARA RAO AND M. R. SHAH, JJ.]
Army Act, 1950 – s. 63 – Army Rules, 1954 – r. 17 –
Termination from service – The appellant was charged u/s. 63 of
the Act – Appellant pleaded guilty – The Summary Court Martial
awarded the appellant with the punishment of reduction in rank –
Thereafter, appellant was served with a show cause as to why he
should not be discharged from Army Service under the provisions
of s. 20 of the Army Act r/w. r. 17 of the Army Rules, 1954 – Appellant
denied the allegations made therein – Consequent to which, Court
of Inquiry was held and appellant was terminated – Aggrieved, the
appellant filed appeal, which was dismissed – Appellant filed a writ
petition before the High Court and the same was also dismissed –
Before the Supreme Court, the appellant contended that he was
punished twice by the respondents for the same offence, once the
Summary Court Martial awarded the punishment, thereafter to
dismiss the appellant u/s. 20 of the Army Act r/w. r. 17 of the Army
Rules would be double jeopardy, which is not permissible – Held:
There is nothing on record that the order passed by the Summary
Court Martial by which the appellant was reduced in rank was
even confirmed by the chief of the Army Staff in exercise of powers
u/s. 164 of the Army Act – Therefore, in the facts and circumstances
of the case, the respondent no. 3 was justified
in exercising the
power u/s.20 r/w r. 17 – The only procedure which is required to be
followed u/r. 17 of the Army Rules was, a person who is sought to
be dismissed or removed from service was 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 service – In the present case, such an opportunity
was given to the appellant, therefore, proper procedure was followed
before dismissing the appellant from service – Insofar as double
jeopardy is concerned, it is required to be noted that earlier the
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appellant was tried by the Summary Court u/s. 63 of the Army Act
only – However, the particulars of charges disclosed that offences
were fraudulent in nature – Thereafter, after giving an opportunity
to the appellant as required u/r. 17, the order of dismissal was passed
u/s. 20 of the Army Act r/w. r. 17 of the Rules and the said order was
confirmed by the Chief of the Army Staff u/s. 164 of the Act –
Therefore, the order of dismissal passed u/s. 20 and confirmation
by the Chief of the Army cannot be said to be violative of the
principle of double jeopardy.
Dismissing the appeal, the Court
HELD: 1. From the facts emerging from the record, it
appears that earlier the appellant was subjected to Summary Court
Martial. However, it is required to be noted that at the relevant
time, the aforesaid lapses/charges were not considered to be
fraudulent in nature and the appellant was tried by Summary Court
Martial for the said lapses/charges under Section 63 of the Army
Act, 1950. Thereafter, the appellant was inflicted with the penalty
of reduction in rank. Nothing is on record that the order passed
by the Summary Court Martial by which the appellant was reduced
in rank was even confirmed by the Chief of the Army Staff in
exercise of powers under Section 164 of the Army Act. Therefore,
it cannot be said that the order passed by the Summary Court
Martial by which the appellant was inflicted with the penalty of
reduction in rank
attained finality on being confirmed by the
competent authority (in the present case the Chief of the Army
Staff). Therefore, considering the observations made by this Court
in paragraphs 24 to 27(more particularly, paragraph 27) in the
case of Harjeet Singh Sandhu, it was open for the competent
authority to exercise powers under Section 20 of the Army Act
read with Rule 17 of the Army Rules, 1954. The power vested
with the Chief of the Army Staff and conferred under Section 20
of the Army Act is an independent power available and for which
the procedure under Rule 17 of the Army Rules is required to be
followed, however, subject to the restrictions as observed by this
Court in paragraph 27 in the case of Harjeet Singh Sandhu.
Meaning thereby that only in a case where the final verdict of
guilty or not guilty pronounced by a Court Martial has been
confirmed by the competent authority and has attained finality,
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the power to proceed under Section 19 read with Rule 14 or
Section 20 read with Rule 17 shall not be available to be exercised.
In other words, so long as a final verdict of guilty or not guilty
pronounced by a Court Martial and confirmed by the competent
authority as to be effective is not available, the power to proceed
under Section 19 read with Rule 14 or Section 20 read with Rule
17, as the case may be, exists and remains available to be
exercised. Therefore, in the facts and circumstances of the case
and in the absence of any confirmation of the order passed by the
Summary Court Martial by which he appellant was reduced to
rank, the respondent no.3 herein was justified in exercising the
power under Section 20 read with Rule 17. At this stage, it is
required to be noted that while exercising the power under
Section 20 of the Army Act, the only procedure which is required
to be followed would be under rule 17 of the Army Rules, namely,
a person who is sought to be dismissed or removed from service
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. In the present case, such an opportunity has been given
to the appellant and therefore the proper procedure has been
followed before dismissing the appellant from service, in exercise
of powers under Section 20 of the Army Act. [Para 7][344-F; 345-
B-H;
346-A-B]
2. Now so far as the submission on behalf of the appellant
that the order of dismissal passed under Section 20 of the Army
Act would be violative of the principle of double jeopardy is
concerned, for the reasons stated above, the same cannot be
accepted. There is one another reason also why the order of
dismissal under Section 20 of the Army Act cannot be said to be
violative of the principle of double jeopardy. It is required to be
noted that when earlier the appellant was treated by the Summary
Court Martial, he was tried for the offences under Section 63 of
the Army Act only. However, subsequently the Chief of the Army
Staff was of the opinion that the particulars of charges for which
earlier the appellant was tried by the Summary Court Martial
and which were tried under Section 63 of the Army Act disclose
that the offences were fraudulent in nature. Therefore, while
treating and considering the offences as fraudulent in nature and
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thereafter after giving an opportunity to the appellant as required
under Rule 17 and thereafter having been satisfied that the
appellant cannot be continued in service, the order of dismissal
has been passed by respondent no.3 herein in exercise of powers
under Section 20 of the Army Act read with Rule 17 of the Army
Rules and the said order of dismissal has been confirmed by the
Chief of the Army Staff while exercising the powers under Section
164 of the Army Act on a petition filed by the appellant. Therefore,
in the facts and circumstances of the case, the order of dismissal
passed under Section 20 of the Army Act and confirmed by the
Chief of the Army Staff cannot be said to be violative of the
principle of double jeopardy. [Para 8][346-C-G]
Union of India and Others v. Harjeet Singh Sandhu (2001) 5
SCC 593 : [2001] 2 SCR 1127 - relied on.
State of Madhya Pradesh v. Hazari Lal (2008) 3 SCC 273 :
[2008] 2 SCR 787; Chief of Army Staff v. Major Dharam Pal
Kukrety (1985) 2 SCC 412 : [1985] 3 SCR 415 – referred
to.
Case Law Reference
[2008] 2 SCR 787
referred to
Para 4.7
[2001] 2 SCR 1127
relied on
Para 5.6
[1985] 3 SCR 415
referred to
Para 6.3
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2448
of 2010.
From the Judgment and Order dated 31.01.2008 of the High Court
of Judicature at Bombay in Writ Petition No. 423 of 2005.
Braj K. Mishra, Makarand D. Adkar, Vijay Kumar, Mustafa
A. Khan, Ms. Kriti Sodhi, Vishwajit
Singh, Advs. for the Appellant.
Ms. Sonia Mathur, Sr. Adv., Ms. Niranjana Singh, Arvind Kumar
Sharma, Anmol Chandan, Sridhar Potaraju, Ms. Shiwani Tushir,
G. Ushasri, B. Krishna Prasad, Advs. for the Respondents.
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The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 31.01.2008 passed by the High Court of Judicature at
Bombay in Writ Petition No. 423 of 2005,by which the High Court has
dismissed the said writ petition preferred by the appellant herein and has
refused to interfere with the order of dismissal passed by the respondent
dated 29.04.2002, the original writ petitioner has preferred the present
appeal.
2. The facts leading to the present appeal in nutshell are as under:
That the appellant herein – original writ petitioner (hereinafter
referred to as the ‘Appellant’) joined the Indian Army as a Sepoy on
30.08.1990. In the year 1994-95, he was promoted as Naik. Thereafter,
he became qualified for promotion to the post of Hawaldar. He was
served with a charge sheet dated 3.8.1999 levelling three charges of
misconduct. That the three charges were framed against the appellant
under Section 63 of the Army Act, 1950 (hereinafter referred to as the
‘Army Act’). With respect to the above charge sheet, the appellant was
called upon to face a Summary Court Martial. The appellant pleaded
guilty to each of the charges in writing. After considering his defence,
the Summary Court Martial proceedings were completed/concluded and
the appellant was awarded with the punishment of reduction in rank,
vide order dated 7.8.1999. That thereafter the appellant was served
with a show cause notice
dated 24.3.2000, by which the appellant was
called upon to show cause as to why he should not be discharged  from
Army service under the provisions of Section 20 of the Army Act, read
with Rule 17 of the Army Rules, 1954 (hereinafter referred to as the
‘Army Rules’). That the appellant replied to the said show cause notice
on 10.4.2000. He denied the allegations made therein. According to the
department, though the appellant pleaded guilty to the three charges, he
denied those charges in the reply to the show cause notice dated 24.3.2000
and therefore the same were fraudulent in nature. According to the
department, upon such denial, a Court of Inquiry came to be held in
January, 2001 to ascertain the facts revealed by the appellant in the
notice. According to the department, thereafter again meeting of the
Court of Inquiry was held. The appellant appeared as a witness. He
was examined. The Court of Inquiry put to him such questions as it
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thought desirable for testing the truth or accuracy of the statement made
by him in his reply and for eliciting the truth. According to the department,
the report of the Court of Inquiry was submitted to the authority concerned.
According to the department, the Court of Inquiry gave the finding that
the appellant has given false and misleading reply in his say as well as in
his evidence before the Court of Inquiry. According to the department,
the appellant was, therefore, issued a show cause notice on 17.4.2001 to
show cause as to why he should not be discharged from the Army under
Rule 13(3) item III(V) as his services were no longer required, being
undesirable. That the appellant filed his reply to the said show cause
notice on 14.6.2001. That thereafter the respondents terminated the
appellant’s services on 29.4.2002, in exercise of the powers under Section
20 of the Army Act, read with Rule 17 of the Army Rules.
2.1 Feeling aggrieved and dissatisfied with the order of termination
dated 29.4.2002, the appellant preferred an appeal, which came
to be rejected on 22.12.2003. That thereafter the appellant
approached the High Court by way of present writ petition
challenging the order of dismissal of the appellant as well as the
order dismissing the appeal.
2.2 Before the High Court, it was the case on behalf of the
appellant that once the appellant faced the Summary Court Martial
and the appellant was awarded the
punishment of reduction in
rank, thereafter for the same charges, the appellant could not
have been dismissed from service in exercise of powers under
Section 20 of the Army Act, read with Rule 17 of the Army Rules.
It was the case on behalf of the appellant that once the Summary
Court Martial awarded the punishment, thereafter to dismiss the
appellant by passing an administrative order under Section 20 of
the Army Act, read with Rule 17 of the Army Rules, would be
double jeopardy, which is not permissible. However, the High Court
did not agree with the same and dismissed the writ petition by
observing that the administrative power under Section 20 of the
Army Act, read with Rule 17 of the Army Rules, is an independent
power and therefore the order of dismissal passed under Section
20 of the Army Act, read with Rule 17 of the Army Rules, is not
required to be interfered with.  Consequently, the High Court by
the impugned judgment and order has dismissed the said writ
petition and has refused to interfere with the administrative order
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dismissing the appellant from service, which was passed in exercise
of the powers under Section 20 of the Army Act, read with Rule
17 of the Army Rules.
3. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, the appellant – original writ petitioner
has preferred the present appeal.
4. Shri. Braj K. Mishra, learned Advocate appearing on behalf of
the appellant – original writ petitioner has vehemently submitted that in
the facts and circumstances of the case, the High Court has committed
a grave error in dismissing the writ petition and not interfering with the
termination order passed by the respondent-authority dated 29.4.2002.
4.1 Shri. Braj K. Mishra, learned Advocate appearing on behalf
of the appellant – original writ petitioner has vehemently submitted
that the High Court has materially erred in not appreciating the
fact that the order passed by respondent no.3 thereby dismissing
the appellant from service was actually illegal and bad in law and
would tantamount to double jeopardy.
4.2 It is submitted by the learned counsel appearing on behalf of
the appellant that the High Court has not properly appreciated
and considered the fact that the appellant for the one and the
same offence was sought to be punished twice by the respondents.
It is submitted that earlier the appellant was made to face Summary
Court Martial in respect of charges of misconduct enumerated in
the charge sheet dated 3.8.1999. The
appellant was found guilty
of the same misconduct and on 7.8.1999 the Court Martial imposed
the punishment of reduction in rank under Section 71 of the Army
Act. It is submitted that the said proceedings concluded after the
order of punishment was given to the appellant. It is submitted
therefore, after passing the order of punishment passed by the
Summary Court Martial and the same had attained finality,
thereafter it was not open for respondent no.2 to re-open the
matter and initiate any further proceedings against the appellant
on the same set of charges.
4.3 It is submitted by the learned counsel appearing on behalf of
the appellant that in the present case despite there being a sentence
awarded by the Summary Court Martial, which was after the
conclusion of the proceedings of the Summary Court Martial, the
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respondents issued a show cause notice dated 24.3.2000 alleging
against the appellant that the particulars of charges disclosed that
the offence was fraudulent in nature. It is submitted that therefore
the show cause notice dated 24.3.2000 itself was illegal and bad
in law.
4.4 It is vehemently submitted by the learned counsel appearing
on behalf of the appellant that after the conclusion of the Summary
Court Martial in which the appellant was given the punishment of
reduction in rank, thereafter respondent no.3 had no jurisdiction
to take any further action in respect of very same misconduct of
the appellant. It is submitted that if at all the offences were said to
be fraudulent in nature, it was open for respondent no.3 to impose
any punishment upon the appellant at the time of conducting the
Summary Court Martial itself. It is submitted that, however, at the
relevant time, respondent no.3 had taken a conscious decision to
impose the punishment of reduction in rank of the appellant. It is
submitted that in that view of the matter, thereafter respondent
no.3 was not legally entitled to re-open the matter and initiate
fresh proceedings on the same set of charges for which the
appellant had already been awarded sentence by way of reduction
in rank. In support of his above submissions, learned counsel
appearing on behalf of the appellant has taken us to the relevant
provisions of the Act, more particularly Sections 121,
161 and 162
of the Army Act.
4.5 It is further submitted by the learned counsel appearing on
behalf of the appellant that even the manner in which the Court of
Inquiry was subsequently conducted by the respondents is also
illegal and ab initio void. It is submitted that the appellant had
issued a show cause notice dated 24.3.2000 in which it was alleged
that the particulars of the charges mentioned in the show cause
notice disclosed that the offence is fraudulent in nature. It is
submitted that therefore it was necessary for respondent no.3 to
conduct further investigation/enquiry if at all permissible in law
only in respect of allegations which were called fraudulent in nature
of charges mentioned in the show cause notice dated 3.8.1999. It
is submitted that as such in view of the conclusion of the Summary
Court martial, the same was not permissible. It is submitted that,
however, according to respondent no.3, the Court of Inquiry was
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conducted from the fresh facts allegedly revealed in the reply on
behalf of the appellant to the show cause notice. It is submitted
that by the show cause notice dated 24.3.2000, the appellant was
called upon to submit his reply in respect of alleged fraudulent
nature of charges made against him in charge sheet dated
3.8.1999. It is submitted therefore that as a defence the appellant
denied the charges by stating that the same are not fraudulent
nature of charges. It is submitted that even otherwise, if at all
respondent no. 3 was of the opinion that the appellant had made
false statements or given any false information in his reply dated
10.4.2000 and for that purpose it was necessary to proceed against
the appellant under the Act and the Rules made thereunder, then
it was necessary for respondent no.3 to come up with a fresh
charge sheet making specific allegations against the appellant with
respect to specific contents of the appellant’s reply to the show
cause notice. It is submitted that it was also necessary for
respondent no.3 to give an appropriate and reasonable opportunity
to the appellant to meet with those specific allegations in relation
to the alleged false statements made by the appellant in his reply
to the show cause notice. It is submitted that, however, admittedly
neither such fresh charge sheet was issued to the appellant nor
any opportunity was given to the appellant by firstly explaining to
him which of the statements and contents of
his reply to the show
cause notice were false, misleading etc. It is submitted that the
appellant was also not called upon to submit his explanation to the
same. It is submitted that respondent no.3 straightway proceeded
to conduct the Court of Inquiry and came to the conclusion that
the appellant has committed the misconduct while submitting his
reply to the show cause notice and for such misconduct, he is not
authorised to retain in service or that further retention of the
appellant in service is considered undesirable. It is submitted that
therefore the entire proceedings conducted by respondent no.3
are illegal, bad in law and without jurisdiction and the same are
also in breach of the Army Act and the Rules made thereunder
and therefore the same ought to have been set aside by the High
Court.
4.6 It is further submitted that the exercise of the administrative
powers by respondent no.3 under Section 20 of the Army Act
read with Rule 17 of the Army Rules after the conclusion of the
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Summary Court Martial and award of sentence under Section 71
of the Army Actfor the very charge sheet/grounds for which the
Summary Court Martial was conducted, is wholly illegal and
without jurisdiction.
4.7 In support of his submissions, learned counsel appearing on
behalf of the appellant has relied upon a decision of this Court in
the case ofState of Madhya Pradesh v. Hazari Lal reported in
(2008) 3 SCC 273.
4.8 Making the above submissions and relying upon the above
decision of this Court, it is prayed to allow the present appeal.
5. The present appeal is vehemently opposed by Ms. Sonia Mathur,
learned Senior Advocate appearing on behalf of the respondents. Learned
Senior Advocate appearing on behalf of the respondents has vehemently
submitted that the order of termination passed by respondent no.3,
challenged before the High Court, was an administrative order passed in
exercise of powers under Section 20 of the Army Act, read with Rule 17
of the Army Rules.  It is submitted that powers under Section 20 of the
Army Act, read with Rule 17 of the Army Rules are independent powers
available to respondent no.3.  It is submitted that therefore the contention
on behalf of the appellant that a subsequent administrative order of
termination passed under Section 20 of the Army Act read with Rule 17
of the Army Rules is double jeopardy has no substance.
5.1 It is further submitted by the learned Senior Advocate appearing
on behalf of the respondents that proceedings under Section 20 of
the Army Act, read with Rule 17 of the Army Rules are
administrative in nature. It is submitted that the administrative
proceedings are independent of the criminal proceedings and even
both can run in parallel. It is submitted that assuming that the
proceedings under Section 20 of the Army Act are criminal
proceedings, still the offences tried for in the Court Martial were
different from those under Section 20 of the Army Act and
therefore there cannot be a case of double jeopardy as the action
taken under Section 20 of the Army Act cannot be considered to
be a “prosecution” under Article 20(2) of the Constitution of India.
5.2 It is further submitted that in the present case the impugned
order of termination in exercise of powers under Section 20 of
the Army Act read with Rule 17 of the Army Rules was passed
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after following due procedure as required, by passing the order
under Section 20 of the Army Act. It is submitted that Section 20
of the Army Act provides that the Chief of Army Staff or other
officers may dismiss or remove from the service any person subject
to the Army Act, other than an officer. It is submitted that the only
procedure prescribed  under the Army Rules for dismissal under
Rule 17 of the Army Rules isthat no person shall be dismissed or
removed unless he has been informed about 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 service.
5.3 It is submitted by the learned Senior Advocate appearing on
behalf of the respondents that as per the scheme of the Army
Act, Chapter 4 deals with conditions of service. It is submitted
that in the said Chapter, Section 18 provides the doctrine of pleasure
of President.  Sections 19 & 20 further provides power of Central
Government to terminate the services of the officer on misconduct
and the power of Chief of Army Staff and other officer to terminate
the service of other ranks. It is submitted that in Chapter 3 of the
Rules, Rules 14 and 17 deal with the procedure for the termination
of service by the Central Government on account of misconduct
in respect of the officer and dismissal or removal by Chief of
Army Staff and by other officers in respect of other ranks
respectively.
5.4 It is submitted by
the learned Senior Advocate appearing on
behalf of the respondents that in Rule 14 the phrase conviction by
Court Martial is not mentioned which is given in Rule 17 in respect
of other ranks. It is submitted that therefore the Parliament has
included the said phrase in Rule 17 because only other ranks can
be tried by Summary Court Martial which does not require
confirmation in terms of Section 153 of the Army Act. It is
submitted that in the absence of any power of confirmation which
is available in case of General Court Martial, Summary Court
Martial and District Court Martial, the Summary Court Martial
cannot be sent for revision once signed by the Commanding
Officer after the trial. It is submitted that in other words the scheme
of the Army Act and the Army Rules provide a mechanism to
rectify any error committed by Court Martial by way of revision
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under Section 160 of the Army Act read with Rule 68 of the
Army Rules, which is not available in the case of Summary Court
Martial.  It is submitted that in order to avoid miscarriage of justice,
Parliament has empowered the competent authority to take the
recourse of Section 20 of the Army Act read with Rule 17 of the
Army Rules by providing power to dismiss the individual after
being convicted by Court Martial.
5.5 It is further submitted by the learned Senior Advocate appearing
on behalf of the respondents that in the present case the charges
framed against the accused (appellant herein – original writ
petitioner) were all under Section 63 of the Army Act which were
very serious which warranted trial by either General Court Martial
or District Court Martial. It is therefore submitted that it was
imperative on the part of the Commanding Officer to refer the
same for proper legal advice. It is further submitted that there
was no proper application of mind at the relevant time when the
Summary Court Martial was held and conducted and the
Commanding Officer dealt with the matter without any proper
application of mind. It is submitted that the case of frauds needs
to be dealt with appropriately and laxity of the nature shown in
this case defeated the ends of justice and the wrong precedent
was set for the prospective offenders. It is submitted that therefore
in order to ensure that the accused does not escape from the
natural consequences of his fraudulent acts, recourse was
therefore taken to terminate his services under Section 20 of the
Army Act read with Rule 17 of the Army Rules.  It is submitted
that therefore the action of termination under Section 20 of the
Army Act read with Rule 17 is legally in order, as Rule 17 provides
for dismissal of a person convicted by a Court Martial whose
retention in service is not desirable.
5.6 Now so far as the submission on behalf of the appellant on
exerciseof the powers by the Chief of Army Staff under Section
163 of the Army Act is concerned, learned Senior Advocate
appearing on behalf of the respondentshas heavily relied upon the
decision of this Court in the case of Union of India and others
v. Harjeet Singh Sandhu reported in (2001) 5 SCC 593. It is
submitted that in the aforesaid decision, this Court considered in
detail the entire scheme of the Army Act and the Rules with
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respect to Summary Court Martial etc. and the powers of the
Commanding in Chief Staff under Section 20 of the Army Act
read with Rule 17 of the Army Rules, and the case of an officer
whose service is proposed to be terminated on the ground of
misconduct which has led to his conviction by a criminal Court. It
is submitted that in the aforesaid decision, this Court recognised
the independent powers under Section 20 of the Army Act read
with Rule 17 of the Army Rules. Relying upon the aforesaid
decision, it is vehemently submitted by the learned Senior Advocate
appearing on behalf of the respondents that the proceedings under
Section 20 of the Army Act are administrative in nature and not
on the same footing as that of a Court Martialproceedings. It is
further submitted that there cannot be a case of double jeopardy
as the action taken under Section 20 of the Army Act cannot be
considered to be a “prosecution” under Article 20(2) of the
Constitution of India.
5.7 Learned Senior Advocate appearing on behalf of the
respondents has heavily relied upon the decision of this Court in
the case of Chief of Army Staff v. Major Dharam Pal Kukrety
reported in (1985) 2 SCC 412 in support of her submission that
in the present case the exercise of powers by the Chief of Army
Staff under Section 20 of the Army Act does not suffer from any
illegality.
5.8 It is further submitted by the learned Senior Advocate appearing
on behalf of the respondents that even otherwise on
merits also,
the order of termination passed by respondent no.3 in exercise of
powers under Section 20 of the Army Act read with rule 17 of the
Army Rules is not required to be interfered with.
5.9 It is submitted that in the present case the initial show cause
notice dated 24.3.2000 clearly set out that the conduct which led
to reduction in rank by the Summary Court Martial was fraudulent
in nature and therefore the appellant was called upon to show
cause as to why action under Section 20 of the Army Act read
with Rule 17 of the Army Rules be not taken. It is submitted that
in reply thereto, the appellant categorically stated that he was not
present in the unit till 29.2.1996. It is submitted that the assertion
of the appellant’s reply regarding his absence was subject of a
Court of Inquiry presided by a Colonel which found the said
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statement to be incorrect and recommended suitable disciplinary
action. It is submitted that on the basis of the opinion of the Court
of Inquiry, the Brigade Commander recommended disciplinary
action for giving false and misleading reply to the show cause
notice. It is submitted that it was in the above background a further
independent show cause notice dated 17.4.2001 was issued to
the appellant to show cause as to why he should not be discharged
under Rule 13(3) item III(v) as his services are no longer required,
being undesirable. It is submitted that power to discharge is under
Section 22 of the Army Act. It is submitted that the appellant has
duly understood the difference between the two show cause
notices, namely, show cause notice dated 24.3.2000 and the
subsequent show cause notice dated 17.4.2001 and replied
accordingly on 14.6.2001. It is submitted that the first show cause
notice dated 24.3.2000 was issued under Rule 17 which provides
for dismissal or removal from service while the second show cause
notice was for discharge under Section 22 read with Rule 13. It is
submitted that both the show cause notices were issued in exercise
of distinct powers vested under the Army Act and the Army Rules.
It is submitted that eventually the order dated 29.4.2002 for
dismissal has been passed under Section 20 of the Army Act read
with Rule 17 of the Army Rules. It is submitted that therefore the
procedural
requirements of Section 20 of the Army Act read with
Rule 17 have been duly complied with. It is submitted that there is
no contention regarding any non-compliance of any procedural
requirement. It is submitted that the only issue raised was
availability of the power to initiate administrative action after the
proceedings of Court Martial have attained finality. It is submitted
that thereafter having been satisfied that in the larger interest the
appellant cannot be continued in service and therefore his services
have rightly been terminated/he is rightly dismissed from service
under Section 20 of the Army Act read with Rule 17 of the Army
Rules.
5.10 Making the above submissions and relying upon the aforesaid
decisions of this Court, it is prayed to dismiss the present appeal.
6. We have heard the learned counsel appearing for the respective
parties at length.
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6.1 At the outset, it is required to be noted that in the present case,
the appellant has been dismissed from service by the Commander,
respondent no.3 herein, while exercising powers under Section
20 of the Army Act read with Rule 17 of the Army Rules.
6.2 It is the case on behalf of the appellant that as earlier he was
subjected to the Summary Court Martial for the very charges of
misconduct for which the order of dismissal has been passed and
earlier the Summary Court Martial passed an order of reduction
in rank, the subsequent order of dismissal passed by respondent
no.3 herein in exercise of powers under Section 20 of the Army
Act is bad in law and would be violative of the principle of double
jeopardy.
6.3 On the other hand, it is the case on behalf of the department
that power of dismissal under Section 20 of the Army Act vested
with the Chief of Army Staff and other officers is an independent
power and the two Sections, Section 20 and 71 of the Army Act,
are, therefore, mutually exclusive. While considering the submission
on behalf of the department that power under Section 20 of the
Army Act is an independent power vested with the Chief of Army
Staff and other officers, the decision of this Court in the case of
Harjeet Singh Sandhu (supra) is required to be referred to and
considered.
6.4 While considering the similar power of termination of service
by the Central Government under Section 19 of the Army Act, it
is observed and held by this Court
that power under Section 19
(vested with the Central Government)is an independent power.
It is further observed and held by this Court in the aforesaid
decision that the Central Government or the Chief of the Army
Staff may arrive at a satisfaction that it is inexpedient or
impracticable to have the officer tried by a Court Martial, then
the Court Martial may not be convened and additionally, subject
to formation of the opinion as to undesirability of the officer for
further retention in the service, the power under Section 19 read
with Rule 14 may be exercised. It is further observed and held
that such a decision under Section 19 read with Rule 14 may be
taken either before convening the Court Martial or even after it
has been convened and commenced, subject to satisfaction as to
the trial by a Court Martial becoming inexpedient or impracticable
SANJAY MARUTIRAO PATIL v. UNION OF INDIA
AND OTHERS [M. R. SHAH, J.]
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at which stage the Central Government or the Chief of the Army
Staff may revert back to Section 19 read with Rule 14. At the
same time, it is further observed and held that there shall be finality
to the finding and sentence of Court Martial subject to their being
confirmed and not annulled. It is further observed that questions
of correctness, legality and propriety of the order passed by any
Court Martial and the regularity of any proceedings to which the
order of Court Martial relates can be raised by way of petition
under Section 164. It is further observed that once the finding and
the sentence, if any, have been confirmed, the Court Martial being
a Special Tribunal dispensing military justice, it would not be
permissible to exercise additionally the power conferred by Section
19 read with Rule 14 and to inflict a penalty thereunder if the
Court Martial has not chosen to inflict the same by way of
punishment under Section 71. It is further observed that to permit
such a course would be violative of the principle of double jeopardy
and would also be subversive of the efficacy of the Court Martial
proceedings, finding and sentence. It is further observed and held
that so long as a final verdict of guilty or not guilty, pronounced by
a Court Martial and confirmed by the competent authority so as
to be effective is not available, the power to proceed under Section
19 read with Rule 14(2) exists and remains available
to be
exercised.
6.5 In light of the aforesaid observations and the law laid down by
this Court, the order of dismissal dismissing the appellant from
service which was passed by respondent no.3 herein in exercise
of power under Section 20 of the Army Act and its legality is
required to be considered.
7. From the facts emerging from the record, it appears that earlier
the appellant was subjected to Summary Court Martial on the following
lapses:
“(a) Not correctly preparing certified Receipt convoy note against
receipt convoy note 599 date 27 Feb. 1996.
(b) Not dispatching the consignments pertaining to OTG and receipt
Convoy Note on 29th Feb. 1996 and 02 March, 1996 and instead
dispatching consignments pertaining to receipt convoy Notes of
others.
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(c) Furnishing false information to the court that buckets steel
Qty 3700 were not received in OTG contrary to the fact that Qty
268 packages of buckets steel were unloaded in OTG on 27 Feb.
1996.”
However, it is required to be noted that at the relevant time, the
aforesaid lapses/charges were not considered to be fraudulent in nature
and the appellant was tried by Summary Court Martial for the said lapses/
charges under Section 63 of the Army Act. Thereafter, the appellant
was inflicted with the penalty of reduction in rank. Nothing is on record
that the order passed by the Summary Court Martial by which the appellant
was reduced in rank was even confirmed by the Chief of the Army
Staff in exercise of powers under Section 164 of the Army Act.
Therefore, it cannot be said that the order passed by the Summary Court
Martial by which the appellant was inflicted with the penalty of reduction
in rank attained finality on being confirmed by the competent authority
(in the present case the Chief of the Army Staff). Therefore, considering
the observations made by this Court in paragraphs 24 to 27(more
particularly, paragraph 27) in the case of Harjeet Singh Sandhu (supra),
it was open for the competent authority to exercise powers under Section
20 of the Army Act read with Rule 17 of the Army Rules. The powervested
with the Chief of the Army Staff and conferred under Section 20 of the
Army Act is an independent power available and for which the procedure
under
Rule 17 of the Army Rules is required to be followed, however,
subject to the restrictions as observed by this Court in paragraph 27 in
the case of Harjeet Singh Sandhu (supra). Meaning thereby that only
in a case where the final verdict of guilty or not guilty pronounced by a
Court Martial has been confirmed by the competent authority and has
attained finality, the power to proceed under Section 19 read with Rule
14 or Section 20 read with Rule 17 shall not be available to be exercised.
In other words, so long as a final verdict of guilty or not guilty pronounced
by a Court Martial and confirmed by the competent authority as to be
effective is not available, the power to proceed under Section 19 read
with Rule 14 or Section 20 read with Rule 17, as the case may be, exists
and remains available to be exercised. Therefore, in the facts and
circumstances of the case and in the absence of any confirmation of the
order passed by the Summary Court Martial by which he appellant was
reduced to rank, the respondent no.3 herein was justified in exercising
the power under Section 20 read with Rule 17. At this stage, it is required
to be noted that while exercising the power under Section 20 of the
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AND OTHERS [M. R. SHAH, J.]
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Army Act, the only procedure which is required to be followed would be
under rule 17 of the Army Rules, namely, a person who is sought to be
dismissed or removed from service 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.  In the present case, such an opportunity has
been given to the appellant and therefore the proper procedure has been
followed before dismissing the appellant from service, in exercise of
powers under Section 20 of the Army Act.
8. Now so far as the submission on behalf of the appellant that
the order of dismissal passed under Section 20 of the Army Act would
be violative of the principle of double jeopardy is concerned, for the
reasons stated above, the same cannot be accepted. There is one another
reason also why the order of dismissal under Section 20 of the Army
Act cannot be said to be violative of the principle of double jeopardy. It
is required to be noted that when earlier the appellant was treated by the
Summary Court Martial, he was tried for the offences under Section 63
of the Army Act only. However, subsequently the Chief of the Army
Staff was of the opinion that the particulars of charges for which earlier
the appellant was tried by the Summary Court Martial and which were
tried under Section 63 of the Army Act disclose that the
offences were
fraudulent in nature. Therefore, while treating and considering the
offences as fraudulent in nature and thereafter after giving an opportunity
to the appellant as required under Rule 17 and thereafter having been
satisfied that the appellant cannot be continued in service, the order of
dismissal has been passed by respondent no.3 herein in exercise of powers
under Section 20 of the Army Act read with Rule 17 of the Army Rules
and the said order of dismissal has been confirmed by the Chief of the
Army Staff while exercising the powers under Section 164 of the Army
Act on a petition filed by the appellant. Therefore, in the facts and
circumstances of the case, the order of dismissal passed under Section
20 of the Army Act and confirmed by the Chief of the Army Staff cannot
be said to be violative of the principle of double jeopardy.
9. Now so far as the submission on behalf of the department that
subsequently the appellant was served with the show cause notice dated
17.04.2001 by which the appellant was called upon to show cause as to
why he should not be discharged under Rule 13(3) item III(v) which
was on the allegation that in reply dated 10.04.2000 to the show cause
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notice dated 24.03.2000, the appellant made a false and misleading reply
and thereafter the Court of Enquiry was conducted and thereafter having
found that the services of the appellant is no longer required being
undesirable and therefore the order of discharge has been passed after
following due procedure is concerned, it is required to be noted that the
order of dismissal which is the subject matter of the present appeal has
not been passed under Rule 13(3) item III(v). The order of dismissal in
the present case is specifically passed under Section 20 of the Army Act
read with Rule 17 of the Army Rules. Therefore, the justification of the
order of dismissal which is the subject matter of the present appeal on
the aforesaid ground is not sustainable. However, at the same time, and
for the reasons stated above, order of dismissal dated 29.04.2002 which
was the subject matter before the High Court and even before this Court
which has been passed under Section 20 of the Army Act read with
Rule 17 of the Army Rules is just, proper, legal and valid and the same is
rightly not interfered by the High Court. We are in complete agreement
with the ultimate conclusion arrived at by the High Court in the impugned
judgment and order.
10. In view of the above and for the reasons stated above, the
present appeal fails and is liable to be dismissed and is accordingly
dismissed. However, in the facts and circumstances of the case, there
shall be no order as to costs.
Ankit Gyan
Appeal dismissed.
SANJAY MARUTIRAO PATIL v. UNION OF INDIA
AND OTHERS [M. R. SHAH, J.]