CHARANJIT LAMBA Vs. COMMANDING OFFICER SOUTHERN COMMAND

JUDGEMENT

(1.) This appeal by special leave arises out of an order dated 15th September, 1998 passed by the High Court of judicature at Bombay whereby Criminal Writ Petition No. 489 of 1997 filed by the appellant has been dismissed and the order of dismissal from service on proved misconduct affirmed. The factual matrix giving rise to the disciplinary proceedings against the appellant and his eventual dismissal from service has been set out by the High Court in the order under appeal. We need not, therefore, re-count the same over again. Suffice it to say that the appellant who at the relevant time was serving as a Major in the Indian Army was consequent upon a finding recorded against him in a Court of Inquiry brought up for trial before a General Court Martial (GCM for short) on the following two distinct charges:

(2.) Evidence adduced before the GCM eventually led to the appellant being held guilty for improperly claiming Rs. 16,589.30 on account of transfer of his household luggage and car to Chandigarh. The GCM found that the family of the appellant had continued to occupy government accommodation at Pune even after his posting to the field area and that the agency who is alleged to have transported the luggage and the car of the appellant did not exist at the given address. The evidence given by the appellant in his defence was also found by the GCM to be unreliable on account of material contradictions in the deposition of the defence witnesses. The GCM on proof of the said charge sentenced him to forfeiture of ten years past service for purposes of pension. In so far as the second charge, viz. non-payment of electricity bill was concerned, the GCM declared the appellant not guilty. In its opinion the appellant had never refused to pay the electricity bill which was at any rate a matter between him and the Maharashtra State Electricity Board. The GCM took the view that the default of the petitioner could not be termed as conduct unbecoming of an official subject to the Army Act to call for any penal action.

(3.) Aggrieved by the findings and the sentence awarded to him by the GCM the petitioner filed an appeal before the General Officer Commanding, Maharashtra and Gujarat Area (hereinafter referred to as the 'GOC M & G Area') who happened to be the confirming authority also. The GOC M & G Area, however, took the view that the sentence awarded to the appellant on the first charge was lenient inasmuch as the offence committed by the appellant was serious and involved moral turpitude. It also noted that the appellant had past convictions to his credit which ought to be kept in view. The finding recorded by the GCM in regard to the second charge framed against the appellant was also found to be untenable by GOC M & G Area as according to him the conduct of the appellant fell within the ambit of Section 4E of the Army Act which made his behaviour unbecoming of an officer. The GOC M & G Area accordingly remanded the matter back to the GCM for re-consideration on the question of sentence to be awarded to the appellant on the first charge and whether the appellant could be held guilty on the second charge. The order made it clear that the GOC M & G Area did not intend to interfere with the discretion vested in the GCM which was free to decide the matter in the manner it liked.