EX SWAR RAMJI RAI Vs. UNION OF INDIA

JUDGEMENT

(1.) We have heard learned Counsel for the parties.

(2.) This Letters Patent Appeal has been filed by the appellant impugning the order passed by the learned Single Judge of this Court. Mr. Sinha, learned Counsel appearing for the appellant has contended that initially the order dismissing the appellant from the service was passed by the respondents on 19.12.1990, respondents had sentenced the appellant to undergo four months' rigorous imprisonment. It was contended that after having sentenced the appellant to undergo four months' rigorous imprisonment, the penalty of dismissal from the service was not proportionate to the offence committed by the appellant. Insupport of his contention, learned Counsel for the appellant has cited AIR 1990 Supreme Court 1984, S.N. Mukherjee v. Union of India and (1997) 7 Supreme Court Cases 463, Union of India & Anr. v. G. Ganayutham. Mr. Sinha has also contended that the law laid down by the Supreme Court in Ranjit Thakurv. Union of India and Others, AIR 1987 Supreme Court 2386, even after the said judgment having been reviewed by the Supreme Court in (1989) 2 Supreme Court Cases 438, Union of India v. Ranjit Thakur, the operative paragraphs as appearing in the judgment, paragraphs 6 and 9 hold the field even today.

(3.) Mr. Chawla, learned Counsel appearing for the respondents has contended that there was no pre-determined mind of the respondents. Before recording of summary of evidence a show cause notice was given to the appellant, thereafter summary of evidence was recorded and thereafter Summary Court Martial proceedings took place and the appellant was found guilty, he was sentenced for four months' rigorous imprisonment as well as penalty of dismissal was imposed on the appellant in view of the overall career profile of the appellant. Our attention has been drawn to the counter-affidavit filed in the writ petition before the learned Single Judge. In paragraph 3(a) of the said counter-affidavit, it has been mentioned that the appellant was awarded 21 days' rigorous imprisonment on 20.4.1985 for an offence under Section 40(a) of the Army Act using criminal force on his superior officer and thereafter the appellant was awarded 7 days confinement on 4.4.1986 for an offence under Section 54(b) of the Army Act for the loss of identity card, appellant was dismissed keeping in view of all these facts into consideration and was not only on account of the act pertaining to insubordination and misconduct for which he was given four months' rigorous imprisonment.