HARISH UPPAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner was an officer of the Indian Army who served in Bangla Desh. Only 11th December, 1971 he was in a place called Hajiganj. He was tried before the Summary General Court Marital on the charge of committing robbery at Hajganj by causing fear of instant hurt to the Custodians of the United Bank Ltd., of certain properties belonging to the Bank and also the personal property of the Manager of the Bank as well as of a Chowkidar of the Bank. THE Court sentenced the petitioner to be 'cashiered'. This sentence was subject to confirmation under the provisions of Chapter XII of the Army Act. Maj.-Gen. Hira, General Officer Commanding, 23 Mountain Division, of which the petitioner was an officer, passed an order directing the petitioner was brought before the same Court Martial, as had tried him earlier, and he was asked whether he wanted to address the Court. On receiving a reply in the negative, the Court, after considering the observations of the confirming authority, revoked the earlier sentence which they had imposed on the petitioner and sentenced him to be cashiered and to suffer rigorous imprisonment for two years. Brig. B. P. Bhilla, the Officiating General Officer Commanding 23 Mountain Division, referred the finding and sentence for confirmation to the Chief of the Army Staff, who in due course confirmed the finding and the sentence. THE present petition is filed under Art. 32 of the Constitution for quashing the order passed by the Chief of the Army Staff, after setting aside the order passed by Maj.-Gen. Hira.

(2.) SHRI A. K. Sen appearing on behalf of the petitioner raised four points in support of his contention that the order passed against the petitioner should be quashed.

(3.) IT is, however, urged that the decisions of this Court have laid down that the rules of natural justice operate in areas not covered by any law validly made and that they do not supplant the law of the land but supplement it and, therefore, though the procedure established by law may have been followed as required under Article 21 the principles of natural justice should also be followed. The cases relied on are A. K. Kraipak v. Union of India, (1970) 1 SCR 457 = (AIR 1970 SC 150) and Purtabpore Co. Ltd. v. Cane Commissioner of Bihar, (1969) 2 SCR 807 = (AIR 1970 SC 1896). This Court in the first decision had pointed out that what particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held and the constitution of the tribunal or body of persons appointed for that purpose. IT was also pointed out that the Court has to decide whether the observance of that rule was necessary for a just decision and that the rule that enquiries must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice. There is no analogy between the facts of that case and the present and applying the ratio of that to the facts of this case we are not satisfied that any rule of natural justice has been violated. The latter was a case where the authority competent to pass the order had simply passed an order adopting what the Minister had directed and had not applied his mind. The facts of this case are quite different. The confirming authority while pointing out the facts had left the discretion regarding the punishment to be imposed to the court martial. If the court martial in spite of the direction given by the confirming authority had reaffirmed its original order, the confirming authority could do nothing because it can exercise its power of directing revision only once and that power was already exhausted. Furthermore, when the court martial resassembled to revise its earlier order under the directions of the confirming authority, the petitioner was given the reasons of the confirming officer for requiring revision and asked whether he wanted to address the Court, he replied in the negative. IT was open to him to have pointed out to the court martial how the observations of the confirming authority were wrong, how they were not borne out by the evidence on record. Having failed to avail himself of the opportunity accorded to him, the petitioner cannot be now heard to complain that he was not given an opportunity by the confirming authority before he directed revision. The court martial had originally found the petitioner guilty of the charge of robbery, under Section 392 of the Indian Penal Code. There was, therefore, no question of the court martial, when it proceeded to reconsider the matter, of reconsidering the finding of guilty. Therefore, any attempt to question the order of the confirming authority on the basis that he relied upon facts which were not proved for directing revision, is wholly beside the point. And as far as the question of sentence is concerned, one cannot quarrel with the sentiments expressed by the confirming authority. We find ourselves unable, therefore, to agree to petitioner's contention that the order of the confirming authority directing revision is in any way vitiated.