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Sachdev Sharma Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1964CriLJ337
AppellantSachdev Sharma
RespondentUnion of India (Uoi) and ors.
Excerpt:
- .....repatriation or transfers. the petitioner's contention is that he does not belong to the army or army personnel governed by was army act, 1956 and the rules made thereunder and so tar as his services are concerned he is governed by be service regulations and the other rules applicable to the civilian employees of the central government. the order dated 6th august, 1963 appointing a court of inquiry by the commanding fleer, respondent no. 2, is under me provisions of the army act and the rules made teenier and is not applicable to the petitioner. the petitioner turn there stated in his petition that the inquiry instituted against him was mala fide and based upon false allegations and u illegal, ultra vires and unconstitutional, me petitioner, therefore, has preferred this petition.....
Judgment:

J.N. Wazir, C.J.

1. This is a writ petition filed by Mr. Sachdev Sharma, Civilian Administrative officer, Headquarters 133 Worm tngineers with the allegation that on 6th August, 1963 respondent No. 2, who is the Commanding nuttier of Heao-quarters 133 Works Engineers, vide his No. C-1/9/SDS/1/EID set up a Court of inquiry under Rule 1/7 of the Cuie framed under the Army Act to investigate into the conduct of the petitioner with a view to determine whether be has been guilty of writing anonymous letters against MES personner or that he had been demanding money from MES personnel with a view to assist them in: their promotions, repatriation or transfers. The petitioner's contention is that he does not belong to the Army or Army personnel governed by Was Army Act, 1956 and the Rules made thereunder and so tar as his services are concerned he is governed by be Service Regulations and the other Rules applicable to the civilian employees of the Central Government. The order dated 6th August, 1963 appointing a court of inquiry by the Commanding fleer, respondent No. 2, Is under me provisions of the Army Act and the Rules made teenier and is not applicable to the petitioner. The petitioner turn there stated In his petition that the inquiry instituted against him was mala fide and based upon false allegations and u illegal, ultra vires and unconstitutional, me petitioner, therefore, has preferred this petition challenging the adore said order and it Is prayed that a writ of prohibition R Issued restraining the Court of inquiry from taking Turtnar proceedings and a writ of mandamus Is sought directing respondent No. 2 to recall or -revoke his aforesaid order'. In reply the respondents have averred that the petitioner who is borne on the authorised war establishment of Headquarters 133 Works Engineers is Class II Civilian gazette nuttier in Defence Service and is governed by the civilians Defence Services (Classification, Control and Appeal) Amendment Rules, 1963 as also Dy the Army Act of idol Vide Notification Section Rule No. 88 dated 9-J-1963 and the Army Order 517 of 1962 issued by the Central uoyernmein, Ministry of Defence and as such he is amenable to we Army Act and the Rules made thereunder, it is further Eon tended that the regular Army to which the petitioner is attached Is on active service and Is engaged In operations agansi the enemy. Lastly, all We allegations and insinuations made by the petitioner against the respondents are compietely denied.

2. in this writ petition it Is not necessary to go into the question whither the order passed by the uorrnnairainj Officer, appointing the Court of Inquiry is mala fids or not. the main, question that falls for determination in this pettion is whether or not the petitioner is subject to Army Act. The contention of the petitioner is that he is a civilian in defence service attached to 133 works Engineers and is paid out of Defence estimates he is not subject to the Army Act of 1950 and in order to bring him within the purview of the Army Act there ought to nave been a notification by the Central Government, Ministry, of Defence, Under Section ZU) (i) of the Army Act, After a careful examination of the provisions of the Act it will be abundantly clear that the contention of the petitioner is not quite correct. From a perusal of sections 2(1)(i), 3(1), 3(x) and 9 of the Army Act it win be clear that the petitioner is subject to the Army Act. Section 2(U)(1) of the Army Act reads as follows:

The following persons shall be subject to this Act, wherever they may be, namely:-

X X X X X X X(I) persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of, the regular Army.

The provisions of the foregoing section would snow that a person not coming within Clauses (a) to (g) of Section you of the Army Act would become amenable to that Act if no Is either on active service, in camp, on the marcn or a any frontier post specified by the Central Government by notification in this behalf and is employed by, or is in the service of, or is a follower of or accompanies any poi-tion of, the regular Army. Thus if the above two requirements are fulfilled by any person, i.e., he is employed by, or Is in the service of, or a follower of, or accompanies any portion of, the regular Army and is either on active service, in camp, on the march or at any frontier post specified by the Central Government in this behalf he With be governed by the Army Act.

Now what is 'active service'. It Is defined m Section 3(1) as under;

'active service', as applied to a person subject to this Act, means the time during which such person-

(a) is attached to, or forms part of, a force which is engaged in operations against an enemy, or

(b) is engaged in military operations in, or Is on the line of march to, a country or place wholly or partly occupied by an enemy, or

(c) is attached to or forms part of a force which is In military occupation of a foreign country.

A careful study of this definition would show that If person Is attached for the time being to, or forms pan of a force which is engaged in operations against an enemy he will be held amenable to the Army Act. me only terry to be seen is whether the force to which he is attaches or of which he forms a part is or is not engaged in operation against art enemy. The word 'enemy' is defined in Section 3(x) of the Army Act as follows:

'enemy' Includes all armed mutineers, armed rebels, armed rioters, pirates and any person In amiss against whom It Is the duty of any person subject to military law to act.

3. It is a matter of common knowledge mat incited Is in state of emergency. In this connection it win be pertinent to refer to the proclamation of Emergency made by the President of India under Article 352(1) of the constitution. This Proclamation is dated 26th October, 1962 and reads as follows.-

PROCLAMATION OF EMERGENCY

In exercise of the powers conferred Dy Clause (1) of Article 352 pf the Constitution, I, Sarvapaiii Raanaknsnnan, President; of India, Dy this Proclamation declare that grave emergency exists whereby the security of India is threatened by external aggression.

S. RADHAKRISHNAN,

president.

it is established by the affidavit of respondent no. 2 that Headquarters 133 Works Engineers is engaged In operations against the enemy and that the petitioner is borne on me war establishment of this body of troops and is attaches to them, and is a who is attached to 133 Works Engineers is engaged in As the Army is up against an external aggression tempting to checkmate the enemy, the petitioner operations virtue of against the enemy and is amenable to the Army Act.

4. Again the petitioner is subject to the Army Act by virtue Section 9 of the said Act and the notification scuds thereunder, Section 9, Army Act, reads as under:

Notwithstanding anything contained in Clause (i) of Section 3, the Central Government may, Dy notification, declare that any person or class of persons subject to tills Act shall, with reference to any area In which they may be serving or with reference to any provision of this net or of any to be on active service within the meaning of this Act.

In the instant case the Central Government issued the notification which reads as under:-

In exercise of the powers conferred by Section 9 of the Army Act., 1950 (46 of 1950), the central Governed hereby declares that all persons subject to that Act, who are not on active service Under Clause (1) of Section 3 thereof, shall, wherever they may be serving, be deemed to be on active service within the meaning of that Act for the purposes of the said Act and of any other law for the time being In force.

By the aforesaid notification an persons subject to Army Act though I not on active service have to be deemed to n on active service within the meaning of that Act, irrespective of the area where they may be serving. Headquarters 133 Works Engineers being subject to tree Army Act and being deemed to be on active service, the petitioner who is borne on the war establishment of this unit and is awakened to It automatically becomes subject to the Army act. In support j of this view reliance may be placed on a mil Bench ruling of the Lahore High court, Kartar Singh v. imperator, reported AIR 1946 Lah 103 (FB) wherein it has then field:

A military store-keeper attached to or employed wan military forces raised in British India marts, by forest of Ordinance row. 10(x) of 1941 be deemed to be on active service for the purposes of the Indian Army Act and is, therefore, subject to the provisions of that Act and can be tried by a Court-martial.

5. As the petitioner is subject to the Army am, ma impugned order is perfectly legal, valid, intra vires Ana constitutional and the writs sought for cannot be granola in his favour. We, therefore, dismiss this writ petition witan costs which are assessed at one hundred rupees (Rs. 100/-only).

J.N. Bhat, J.

6. I agree.


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