UNION OF INDIA Vs. NABIB SUBEDAR R VANANGAMUDI

JUDGEMENT

(1.) ON the failure of the appellants to produce record of the General Court Martial (GCM), the learned Single Judge allowed the writ petition filed by the respondent quashing the proceedings of the GCM and setting aside the orders dated 28-10-1986 and 16-3-1987 impugned in the writ petition. A direction was issued to the appellants to reinstate the respondent into service giving him arrears of salary from the date of dismissal till the date of reinstatement and all other consequential benefits within the time specified. The writ petition v/as allowed mainly on the ground that the respondent had not complied with the mandatory provisions of Rules 44 and 147 of the Army Rules.

(2.) THE relevant facts for proper adjudication of the pleas raised before us are that the respondent had joined the Indian Army in Madras Engineer Group as a driver on 13-10-1967. In July 1980 he was working as an administrative non-commissioned Officer in the Depot Battalion, Madras engineer Group and Centre, Ulsoor, Bangalore and the nature of his duties were to supervise the carrying out of repairs in the houses of the officers in addition to visit the railway station for booking tickets, collecting baggage and supervising the garden boys of the battalion. He was informed by his second-in-command that he would be tried by a General Court Martial on 01-03-1986 for allegedly misappropriating property belonging to the Government. He was served with the charge-sheet on 26-2-1986, wherein it was stated that the respondent had misappropriated Rs. 50,464-80 ps. while being an assistant to RTC Cashier namely Subedar major (Honorary Lieutenant) S. Samudi. The period of alleged misappropriation was specified to be between 3-3-1983 to 30-8-1983. After the conduct of the trial the GCM held him guilty and passed the verdict of dismissing the respondent from bis job. The petition filed under Section 164 of the Army Act seeking his exoneration and quashing of the finding of the GCM was dismissed by the General Officer, Commanding-in-Chief, Southern Command, the intimation of which was conveyed to the respondent on 16-3-1987. It was further contended by the respondent that he submitted two petitions on 16-11-1986 and 6-4-1987 to the concerned authorities praying for being provided with copy of all the GCM proceedings and the copy of the staff Court of inquiry of proceedings so as to enable him to seek redressal in an appropriate Court of law for the alleged unjust punishment inflicted upon him. As his request was not accepted, he filed the petition seeking quashing of the GCM proceedings and the consequential punishment awarded to him on the ground of violation of the Army Rules as noted earlier and the alleged non-compliance of the principles of natural justice. He further contended that as the order of the gcm was not a speaking order, the same was liable to be quashed. It was alleged that there did not exist any tangible evidence on record which could have been made a basis for connecting the respondent with the commission of crime. The GCM was alleged to have committed an illegality by relying upon the uncorroborated testimony of the accomplice and other persons who were allegedly involved in the commission of the crime, if any. The action of the respondent was stated to be against the provisions of Articles 14 and 16 of the Constitution of India.

(3.) WE have heard the learned Counsel for the parties and perused the record including the proceedings of the GCM shown to us by the learned Counsel for the appellants.