Skip to content


Ex. Major Virendrarai J. Kharod Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR963
AppellantEx. Major Virendrarai J. Kharod
RespondentUnion of India (Uoi) and ors.
Cases ReferredS.P.N. Shama v. Union of India and Anr.
Excerpt:
- - he gave his opinion on august 31, 1976 and also recommended that the petitioner be exonerated of all the three charges and reverted back to his corps with 'full honour'.even though the charges levelled against the petitioner were dismissed, a general court martial was convened to try the petitioner for those very charges. if the conditions precedent are not satisfied, then obviously the court martial would have no jurisdiction to investigate the charges and to hold the trial for that purpose. if it holds the trial even though the conditions precedent are not satisfied, then it can be said without any hesitation that its action is without jurisdiction; if the commanding officer, on consideration of the evidence recorded by him is of the opinion that the evidence does not show that.....g.t. nananavati, j.1. the petitioner, a civil engineer, joined the military service as a iind lieutenant in the corps of engineers on december 11, 1962. he was promoted to the post of captain and later on became a major. at his request he was transferred to the office of the commander works engineers (cwe), gujarat area at baroda on 20-12-1971. it is the petitioner's case that while he was serving as a garrison engineer at baroda, he came in conflict with his superior officer lt. col. sundaram, who was the commander works, as the petitioner had declined to comply with his requests which were contrary to the rules. at the instance of lt. col. sundaram, a vigilance check of the work done by the petitioner was carried out; but nothing adverse was found. even then sundaram appointed a board.....
Judgment:

G.T. Nananavati, J.

1. The petitioner, a Civil Engineer, joined the Military Service as a IInd Lieutenant in the Corps of Engineers on December 11, 1962. He was promoted to the post of Captain and later on became a Major. At his request he was transferred to the office of the Commander Works Engineers (CWE), Gujarat Area at Baroda on 20-12-1971. It is the petitioner's case that while he was serving as a Garrison Engineer at Baroda, he came in conflict with his superior officer Lt. Col. Sundaram, who was the Commander Works, as the petitioner had declined to comply with his requests which were contrary to the rules. At the instance of Lt. Col. Sundaram, a vigilance check of the work done by the petitioner was carried out; but nothing adverse was found. Even then Sundaram appointed a Board of Officers on August 29, 1974 to investigate the circumstances under which excess-provisioning in the divisional stock was ordered by the petitioner's office and also to verify whether purchases of stores and works carried out through local Bazar agencies on supply orders, during April to July 1974, were in accordance with the prescribed procedure. It is the petitioner's case that the findings recorded by the Board of Officers were in his favour. However, the Commander Works Engineers disagreed with those findings and referred the matter to the Chief Engineer, West Coast, Bombay. The matter was then referred to the Headquarters B.S.A. which directed Station Headquarters, Baroda to hold a Staff Court of Enquiry to investigate into the case. Accordingly, Station Headquarters, Baroda by its order dated December 20, 1974 appointed a Court of Enquiry. The proceedings before the Court of Enquiry were over on April 30, 1975 when the petitioner was permitted to leave Baroda and join his parent unit viz 36 Unit Border Road Task Force. The report of the Court of Enquiry was submitted in June, 1975. On the basis of the said report, the Commander, B.S.A. ordered that formal disciplinary action should be taken against the petitioner. Therefore, on or about February 23, 1976, the petitioner was directed to report back to Baroda as for investigation of the charges a summary of evidence was to be recorded. The evidence was recorded between May, 1976 and August, 1976. The Commanding Officer, after going through the said summary of evidence found that the charges levelled against the petitioner were baseless and they were either disproved or not proved. He gave his opinion on August 31, 1976 and also recommended that the petitioner be exonerated of all the three charges and reverted back to his corps with 'full honour'. Even though the charges levelled against the petitioner were dismissed, a General Court Martial was convened to try the petitioner for those very charges. The petitioner objected to the convening of a General Court Martial and raised a plea-in-ban but that plea was overruled. It is the case of the petitioner that thereafter, the General Court Martial was held in breach of the principles of natural justice. The General Court Martial found the petitioner guilty of all the charges; and by way of punishment, dismissed him from service subject to the confirmation by the higher authority. The Chief of Army Staff agreed with the findings recorded by the General Court Martial and confirmed the punishment by his order dated 9-5-1978. The petitioner thus came to be dismissed from service. Against that order, the petitioner preferred an appeal to respondent No. 1 - Union of India. It was dismissed on 2-1-1980. As no reasons were communicated to the petitioner, he applied for the same. But inspite of repeated requests and reminders made by him, no reasons were supplied to him. The petitioner has, therefore, approached this Court byway of this petition under Article 226 of the Constitution of India.

2. Various allegations have been made in the petition against Lt. Col. Sundaram. The petitioner has also alleged that the Board of Officers and the Court of Enquiry were not properly constituted and that the proceedings were not held by them fairly and in accordance with the principles of natural justice. The petitioner has also challenged the convening of the General Court Martial on the ground that it was contrary to the Rules and has also alleged that the proceedings before the Court Martial were not conducted fairly and in accordance with the principles of natural justice.

3. Respondent No. 4 has filed his reply to the petition and has denied the allegations made against Lt. Col. Sundaram. He has also denied the other allegations made and the contentions raised by the petitioner in the petition, It is not necessary to refer to all those allegations, contentions and denials as the main contention which was raised before me by the Learned Counsel for the petitioner deserves to be accepted; and on that ground alone the petition deserves to be allowed.

4. Before I refer to that contention, preliminary objections raised on behalf of the respondents will have to be dealt with.

5. It was urged that the plea regarding jurisdiction of the Court Manial can be raised under Rules 51 and 53 of the Army Rules, 1954 (hereafter referred to as 'the Rules'). Such a plea was in fact raised by the petitioner before the Court Martial and the Court Martial rejected the same. Again, the same plea is raised by the petitioner in this petition. Therefore, in essence and substance, this petition should be regarded as one filed under Article 227 and not under Article 226 of the Constitution. It was then urged that in view of the provision contained in Article 227(4), the 'High Court has no power of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces; and, therefore, this petition should be regarded as not maintainable. In support of this contention, reliance has been placed on the decision of this Court in Tham Bahadur v. Union of India 1984(1) XXV(1) G.L.R. page 429. In that case 'what was challenged before the Court was the legality of the order of conviction passed by the Court Martial as a result of which the petitioners in that case were detained. The petitioners had prayed for a writ of habeas corpus or any other appropriate writ, order or direction. Even though the petition was filed under Articles 226 and 227 of the Constitution, this Court observed that since the trial held by the Court and its ultimate result or decision were challenged, the petition was really one under Article 227 of the Constitution. Relying heavily upon the observations made in paragraph 7 of the judgment it was urged by the Learned Counsel for the respondents that in this case also what the petitioner is challenging is the legality of the trial by the Court Martial and the ultimate order passed by it; and, therefore, in view of the decision of this Court, present petition must be regarded as one filed under Article 227 of the Constitution. Even if it is assumed that this petition is one under Article 227, it cannot be thrown out on the ground that it is not maintainable, as what is challenged is the jurisdiction of the Court Martial to investigate into the charges and not merely the procedure adopted by it or its ultimate conclusion. As pointed out by the Delhi High Court in S.P.N. Shama v. Union of India and Anr. AIR 1968 Delhi page 156, if an order passed by a Court Martial is shown to non-est the High Court can interfere with such an order. In this case, the petitioner submitted that the order passed by the Court Martial is really non-est as the Court Martial could not have been convened in this case; and, therefore, the Court Martial had no jurisdiction to investigate into the charges levelled against the petitioner. In that view of the matter, this preliminary contention raised on behalf of the respondents must be rejected.

6. It was then urged that if this petition is really regarded as one under Article 226 of the Constitution, then in that case also, it should be held that it is not maintainable because 'the respondents do not fall within the definition of 'any person' or 'authority' or 'any Government' used in Article 226 of the Constitution of India and they are not subject to the jurisdiction of the High Court under Article 226 of the Constitution of India.' It is not possible to accept this contention, as in my opinion, a Court Martial constituted under the Army Act, 1950 (hereafter referred to as 'the Act') can be said to be an authority contemplated under Article 226 of the Constitution. The Learned Counsel for the respondents was unable to point out how the Court Martial cannot he said to be an authority contemplated under Article 226. It is an authority constituted under the Army Act and it has to discharge the statutory functions assigned to it. It has the power to investigate into the charges and hold a trial for that purpose, subject to certain conditions. If the conditions precedent are not satisfied, then obviously the Court Martial would have no jurisdiction to investigate the charges and to hold the trial for that purpose. If it holds the trial even though the conditions precedent are not satisfied, then it can be said without any hesitation that its action is without jurisdiction; and the order passed by it is non-est. Under these circumstances, there is no reason why this Court cannot exercise its powers under Article 226 of the Constitution and grant the reliefs prayed for by the petitioner. In my opinion, when an order passed by the Court Martial is challenged on the ground that it has been passed without jurisdiction, such a writ petition would be maintainable; and, therefore, the preliminary contention raised on behalf of the respondents to the contrary must be rejected.

7. It was lastly urged that this petition is filed after a long lapse of time and, therefore, it should be dismissed on the ground of 'delay 'and laches. It was urged that the order of dismissal was passed in the year 1978 and the petition has been filed in 1981 and, therefore, there is a delay of about 3 years. There is no substance in this contention also. In fact, after the order of dismissal was passed on 9-5-1978, the petitioner had presented a petition under Section 164(2) of the Act to respondent No. 1 Union of India. The said petition was rejected on 2-1-1980; and a copy of the order was served on the petitioner in February, 1980. As the order did not contain any reasons, the petitioner applied for the same. Inspite of repeated requests and reminders made by the petitioner, no reply was given to him till the date he filed the present petition. Under these circumstances, it cannot be said that the petition suffers from delay and laches. This contention is also, therefore, rejected.

8. Having rejected the preliminary objections raised on behalf of the respondents, 1 will now proceed to deal with the contentions raised on behalf of the petitioner. It was urged that before a Court Martial is convened, the charges levelled against the person concerned are required to be investigated by the Commanding Officer according to the Rules. If the Commanding Officer, on consideration of the evidence recorded by him is of the opinion that the evidence does not show that an offence under the Act has been committed or if he is satisfied that the charge ought not to be proceeded with, he has to dismiss the charge. It was urged that in the present case the Commanding Officer had found the charges to be baseless and he was satisfied that the charges did not deserve to be proceeded with. Though he did not specifically dismiss the charges, he impliedly did so by recommending to the authorities to permit the petitioner to resume his duties with full honour. As the charges were thus dismissed it was not legal and proper to convene the General Court Martial and to get the petitioner tried by it.

9. In order to appreciate this contention, it will be necessary to refer to Rules 22 to 25. They are as under:

22. Hearing of Charge :- (1) Every charge against a person subject to the Act other than an officer, shall be heard in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call any witnesses and make any statement in his defence.

(2) The Commanding Officer shall dismiss a charge brought before him if, in his opinion, the evidence does not show that an offence under the Act has been committed, and may do so if. in his discretion, he is satisfied that the charge ought not to be proceeded with.

(3) At the conclusion of the hearing of a charge, if the Commanding Officer is of opinion that the charge ought to be proceeded with, he shall without, unnecessary delay: (a) dispose of the case summarily under Section 80 in accordance with the manner and form in Appendix III; or

(b) refer the case to the proper superior military authority; or (c) adjourn the case for the purpose of having the evidence reduced to writing; or (d) if the accused is below the rank of Warrant Officer, order his trial by a summary court-martial;

Provided that the Commanding Officer shall not order trial by a summary court martial without a reference to the officer empowered to convene a district court-martial or on active service a summary general court-martial for the trial of the alleged offender unless either:

(a) the offence is one which he can try by a summary court-martial without any reference to that officer; or

(b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline.

23. Procedure for taking down the summary of evidence : (1) Where the case is adjourned for the purpose of having the evidence reduced to writing, at the adjourned hearing the evidence of the witnesses who were present and gave evidence before the Commanding Officer whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the Commanding Officer or such officer as he directs.

(2) The accused may put in cross-examination such questions as he thinks fit to any witness, and the question together with the answers thereto shall be added to the evidence recorded.

(3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him or if he cannot write his name shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded, the accused will be asked: 'Do you wish to make any statement You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.' Any statement thereupon made by the accused shall be taken down and read over to him, but he will not be cross-examined upon it. The accused may then call his witnesses, including, if he so desires, any witnesses as to character.

(4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness or accused, as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in a language which he understands.

(5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing), be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence.

(6) Any witness who is not subject to military law may be summoned to attend by order under the hand of the Commanding Officer of the accused. The summons shall be in. the form provided in Appendix III.

24. Remand of 'accused: (1) The evidence and statement (if any) taken down in writing in pursuance of Rule 23 (hereinafter referred to as the 'summary of evidence'), shall be considered by the Commanding Officer, who thereupon shall either:

(a) remand the accused for trial by a court-martial; or

(b) refer the case to the proper superior military authority; or

(c) if he thinks it desirable, rehear the case and either dismiss the charge or dispose of it summarily.

(2) If the accused is remanded for trial by a court-martial, the Commanding Officer shall without unnecessary delay either assemble a summary court-martial (after referring to the officer empowered to convene a district court-martial or on active service as summary general court-martial when such reference is necessary) or apply to the proper military authority to convene a court-martial, as the case may require.

25. Procedure on charge against officer: (1) Where an officer is charged with an offence under the Act, the investigation shall, if he requires it, be held, and the evidence, if he so requires, be taken in his presence in writing, in the same manner as nearly as circumstances admit, as is required by Rule 22 and 23 in the case of other persons subject to the Act.

(2) When an officer is remanded for the summary disposal of a charge against him or is ordered to be tried by a court-martial, without any such recording of evidence in his presence, an abstract of evidence to be adduced shall be delivered to him free of charge as provided in Sub-rule (7) of Rule 33.

10. An analysis of the aforesaid Rules reveals that whereas Rules 22,23 and 24 provide for investigation of a charge against a person subject to the Act but other than an officer. Rule 25 provides for investigation of a charge against an officer. In case of a person other than an Officer, initially an oral inquiry is to be made. If as a result of such an inquiry the Commanding Officer finds that the evidence does not show that an offence under the Act has been committed, he has to dismiss the charge. If the evidence discloses commission of an offence, but the Commanding Officer in exercise of his discretion is satisfied that the charge ought not to be proceeded with, then also he is authorised to dismiss the charge. If he is of the opinion that the charge ought to be proceeded with then he has to adopt any one of the courses mentioned in Sub-rule (3) of Rule 22. In case he decides to proceed under Rule 22(3)(c) the procedure prescribed by Rule 23 is to be followed, for the purpose of recording the evidence and statement of the accused. Thereafter, the Commanding Officer has to act in the manner provided in Rule 24. In case of an officer, such an elaborate enquiry is not contemplated. Rule 25 provides for investigation of the charge in the manner prescribed by Rule 22 only if the officer so requires. Such an investigation can be parried on in the manner provided by Rule 22(1). But if the officer so requires, the evidence will have to be taken in writing in his presence. Sub-Rule (2) of Rule 25 provides that in case an officer is remanded for the summary disposal of a charge against him or is ordered to be tried by a Court Martial, in a case where the evidence is not recorded in writing in the presence of the officer, an abstract of evidence has to be delivered to him free of charge. It is significant to note that Rule 25 makes no reference to Rule 24. It would, therefore, mean that whatever decision the Commanding Officer is required to take has to be taken after holding an enquiry as contemplated by Rule 22(1). The idea appears to be to conclude the enquiry against an officer in one stage only. On consideration of the evidence thus collected, the Commanding Officer can either dismiss the charge or remand the officer for the summary disposal of the charge against him or order him to be tried by a Court-martial. It is also possible so take the view that he can refer the case to the proper superior military authority. But. in my opinion, it will not be open to him, looking to the object of Rule 25 to adopt the course specified in Rule 22(3)(c) of the Rules.

11. In this case neither the petitioner nor the respondents have made it clear as to whether the investigation was carried on and the evidence was recorded in writing in the manner prescribed by Rules 22 and 23 because the petitioner so required. However, it is an admitted position that whatever evidence was recorded in this case was reduced into writing and in the presence of the petitioner. It is not the case of the respondents that the preliminary hearing of the charges was held initially and thereafter the Commanding Officer was of the opinion that the charges ought to be proceeded with; and therefore, he adjourned the case for the purpose of reducing the evidence into writing. In my opinion, such a course was not open to the Commanding Officer; and, therefore, obviously he had not proceeded in that manner. After considering the evidence, the Commanding Officer recorded his opinion. In view of that opinion, whether the Commanding Officer dismissed the charge or referred the case to the proper superior military authority for taking appropriate action is the only point in dispute in this case. According to the petitioner, the Commanding Officer in clearest terms held that the charges were either not proved or disproved; and though he did not formally dismiss the charge, he was of the clear view that the charge ought not to be proceeded with and therefore, he can be said to have impliedly dismissed the charge as contemplated by Rule 22(2). On the other hand, it was contended on behalf of the respondents that the Commanding Officer did not dismiss the charge, but referred the case to the proper superior military authority for taking appropriate action. If he really wanted to dismiss the charge, he would have passed an order to that effect and would not have merely made a recommendation as he did in paragraph 13 of his opinion.

12. This is what respondent No. 4 has stated in his reply:

It is submitted that once the Commanding Officer leaves the final decision to the superior authority, his recommendations remain in the area of recommendation only and he has thereafter to accept the decision of the superior authority. It is submitted that in the case of the petitioner, the Commanding Officer transferred the case to superior authority for obtaining a decision. While so transferring the case, he also sent his recommendation along with the summary of evidence. This procedure followed by the Commanding Officer was not strictly according to the procedure. However, the main point to be considered is that the Commanding Officer did not in fact dismiss the charges before the petitioner was brought to trial.

It is also pointed out by respondent No. 4 in his reply that Lt. Col. D.S. Kahalon. who was the Commanding Officer had stated during the General Court Martial proceedings that he had not dismissed the charges against the petitioner. It was submitted that as the Commanding Officer had not taken any formal decision to dismiss the charges and had forwarded the papers to the superior authority for taking a final decision, it was open to the superior authority either to agree or to disagree with his recommendation; and therefore, the findings and the order of the General Court Martial are quite proper and legal.

13. In order to decide the point in dispute, it would be necessary to refer to the opinion of the Commanding Officer. It is produced at Annexure 'F' to the petition. Relevant part thereof is reproduced below:

1. After going through the complete evidence I am convinced that the charges framed against the accused officer, IC-13851 L Major V.J. Kharod are thoroughly baseless, are either 'disproved' or 'not proved' as established beyond even any semblance or element of doubt and, therefore, stand automatically dismissed.

2. I am like any other prudent man with reasonable understanding and normal common sense, convinced that the officer is not at all guilty of any of the charges framed against him and recommend, without even slightest hesitation, that the officer be exonerated and be reverted back to his corps duties with full honour. which he richly deserves.

3. ...that this officer, in normal course, could have been recommended for a commendation in recognition of such high standard of integrity and loyalty displayed by him, instead of being condemned as is done due to possibly a wrong initiation of case from certain quarters.

4. From the evidence recorded, certain glaring peculiarities of the case have been noticed by me and I would like to highlight them since I. as much as any prudent man with reasonable knowledge and normal common sense, am convinced that there appears to be something unusual about the manner in which the case was initiated and conducted....

8. It is thus proved beyond any doubt that no offence in respect of this charge was committed and as such Maj. V.J. Kharod, the accused is not guilty of any offence. Thus the charge is not proved.

10. Thus the second charge is disproved beyond any doubt as any prudent man with reasonable knowledge and normal common sense will be convinced in his mind and as such Maj. V.J. Kharod is not guilty of any offence.

12. Thus, this charge is disproved and Major V.J. Kharod is not guilty of any offence.

13. In view of above, I recommend that Major V.J. Kharod be exonerated of all the three charges and reverted back to his corps with full honour.

Obviously, the petitioner has placed reliance upon what the Commanding Officer has observed in paragraphs 1, 2, 3,4, 8,10 and 12 of his opinion. The respondents have placed reliance upon what he has observed in paragraphs 2 and 13 of the opinion. It was contended on behalf of the respondents that the Commanding Officer having held that the charges were either 'not proved' or 'disproved' and that the petitioner was not guilty of any offence, he did not dismiss the charges, but merely made a recommendation to the superior authority to exonerate the petitioner of all the charges and send him back to his corps with full honour. He thus did not think it fit to dismiss the charges so as to conclude the enquiry as contemplated by Sub-rule (2) of Rule 22, but referred the case to the superior authority as permitted by Rule 22(3)(b).

14. In my opinion, there is no substance in this contention raised on behalf of the respondents. If the opinion is read as a whole, it should not leave any doubt in the mind of any reasonable person that the Commanding Officer was fully satisfied that the petitioner accused had not committed any offence. He held the charges as disproved or not proved. He even went to the extent of observing that the proceedings were initiated against the petitioner improperly or wrongly. If the Commanding Officer was of this opinion, it becomes difficult to appreciate the stand of the respondents that even then he referred the case to the superior authority. The contention raised on behalf of the respondents really appears to be a result of a, confusion arising out of misreading of the rules. A case can be referred to the superior authority if the Commanding Officer is of the opinion that the charge deserves to be proceeded with and not otherwise. A plain reading of the opening part of Rule 22(3) suggests that. With the findings that the charges were either disproved or not proved and therefore, the petitioner had not committed any offence, can it be believed that the Commanding Officer was satisfied that the charges deserved to be proceeded with It should require a great effort on the part of any responsible man to believe such a thing. Merely because in his opinion, the Commanding Officer did not formally state that he was dismissing the charges, it cannot justly be said that the Commanding Officer did not intend to do so and that the charges did not stand dismissed. To hold otherwise would amount to sacrificing justice and prefer technicalities. Such a lengthy and considered opinion cannot be set at naught by merely stating that the Commanding Officer followed a wrong procedure, in that he should not have made the recommendations as he was referring the case to the superior authority.

15. If the Commanding Officer really wanted to refer the case to the proper superior authority, then he would have merely recorded the evidence and forwarded the case papers to the superior authority without recording any opinion. He was not the officer who was not conversant with the procedure. If he really wanted to refer the case to the superior authority for some reason then he would have certainly stated so in his opinion itself. At any rate, he would have stated so in his forwarding letter. In order to support their case I had permitted the respondents to bring on record the forwarding letter or any other material to show that the Commanding Officer had really referred the case to the superior authority for taking a final decision. The only material which has been produced before me is the letter dated 31-8-1976. It has been produced by Lt. Col. S.P. Bakshi attached to (ADM) Commandant, Station Headquarter, Ahmedabad along with his affidavit filed on 11-10-1984. it is a letter written by the Commanding Officer to the Station Headquarters Baroda. The said letter does not support the contention raised on behalf of the respondents; and it was fairly conceded by the Learned Counsel for the respondents that this letter does not show that the Commanding Officer really wanted to refer the case to the superior military authority and that he was merely making a recommendation even though that was not the usual practice. The letter, however, shows that it was addressed to the Station Headquarters, Baroda. There is no material brought on record to show that who was the superior military authority of the Commanding Officer at the relevant time to whom he really wanted to refer the case. No order paused by any superior authority is produced. In the absence of any such material on record to show that the Commanding Officer wanted to refer the case to the superior military authority and that acting contrary to the usual procedure the Commanding Officer had sent along with the papers his opinion also, the version not put up by the respondents cannot be believed. The reason why the Commanding Officer made the recommendation in his opinion probably appears to be that he wanted the petitioner to be restored to his position with full honour. The petitioner was transferred to Mizoram and was directed to report to 129 Air Defence Regiment at Baroda and to remain there till the taking down of summary was over. It was possibly for passing appropriate orders in this behalf that he made the recommendation in his opinion to the concerned authority in this behalf. Having carefully considered the opinion and the material brought on record, I am of the opinion that the Commanding Officer did dismiss the charges against the petitioner. It is common ground that if it is held that the Commanding Officer had really dismissed the charges against the petitioner, then, the General Court Martial could not have been convened to go into those charges against the petitioner.

16. For the reasons stated above, I am of the opinion that the convening of the General Court Martial was not proper and legal; and, therefore, the order passed by it and confirmed by respondent No. 2 cannot be said to be legal. The order passed by the Union of India on the petition will also have to be held as illegal. In the result, this petition is allowed; and the impugned orders at Annexure R, S and W are quashed and set aside. It is declared that the petitioner continues in service without any break and is entitled to all the consequential benefits as if the impugned orders were not passed at all. This declaration is, however, subject to the condition that meanwhile the petitioner has either not resigned or retired from service. If such an event has taken place then obviously the declaration will be confined to that period only. As regards the back wages, it is ordered that the respondents or any competent officer appointed by them in that behalf should hold an enquiry within reasonable time to ascertain whether the petitioner had gainfully employed himself elsewhere during the period he was out of employment of the respondents as a result of the impugned orders. If it is found that he was not gainfully employed elsewhere during the said period, then he will have to be paid full back wages. If, however, it is found that he was gainfully employed either for the whole or a part of the period of his unemployment, he will have to be paid back wages only for the period during which he had remained unemployed. If the petitioner was employed somewhere else during that period, but was getting less wages, then also he would be entitled to difference in his salary. Rule is accordingly made absolute with no order as to costs.

17. At the oral request made by the learned Advocate for the respondents, the operation of the order made by me is stayed for a period of three weeks from today. The stay is granted as the respondents desire to approach the higher Court against the judgment and order passed by me.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //