C P BEHRA Vs. CHIEF OF ARMY STAFF

JUDGEMENT

(1.) The petitioner was enrolled as member of the Indian Army in Rajput Regiment on 28.9.1988. He claims to have been promoted to the rank of paid Acting Havildar Clerk on 1.10.1997 and claims that he was due to attain substantive rank of Havildar as per existing policy issued by the Army HQ, AG's Branch vide their letter dated 31.3.1995. It is pleaded by the petitioner that for all purposes the petitioner was to be considered and treated as substantive Havildar w.e.f. 1st October, 1997. In August, 1995, the Government had sanctioned hundred per cent substantive quota in the cadre of JCOs and other ranks against earlier sanctioned quota of 80%. The petitioner was treated as promoted to the paid acting rank of Havildar though according to him there was no such basis. On 21st November, 1998, some dispute arose between the petitioner and one Havildar/Clerk S.L. Pandey which was orally heard and decided by Senior Record Officer who settled the dispute between the parties by directing payment of Rs. 220/- to the petitioner and return of bicycle to Havildar/Clerk S.L. Pandey which was in possession of the petitioner. This decision was accepted by the parties and was implemented. In view of the complaint made by Havildar/Clerk S.L. Pandey, the petitioner, on 18.12.1988, was summarily tried leveling the charge against him of improper possession of a bicycle which was not his property and was the property of Havildar/Clerk S.L. Pandey. The summary trial was conducted under the provisions of Section 80 of the Army Act and the petitioner was convicted and awarded the punishment of 'Deprived acting rank of Havildar'. This punishment imposed by the Officer Commanding/Commanding Officer is challenged by the petitioner in the present petition under Article 226 of the Constitution of India primarily on the ground that the said authority had no jurisdiction to pass the said order as the petitioner was not an acting Havildar who was holding the rank substantively. Thus, while relying upon the provisions, the petitioner also preferred a statutory complaint which was also dismissed by the Chief of Army Staff vide his order dated 29th March, 2001 giving rise to the filing of the present petition.

(2.) The respondents have filed a counter affidavit wherein the facts are hardly disputed. It is stated that the petitioner was promoted to the rank of paid Acting Havildar w.e.f. 1.10.1997. He was deprived of the said rank by the competent authority vide order dated 18.12.1998 in accordance with the provisions of law and the petitioner was interviewed by the Officer Commanding, Records. The statutory complaint dated 15th May, 2000 filed by the petitioner under the provisions of Section 26 of the Army Act and para 364 of Regulations for the Army against the findings and sentence of summary trial, was dismissed by the Chief of Army Staff on 29th March, 2001 holding that the awarded punishment was just and commensurate with the gravity of the offence. It is specifically denied that the petitioner was holding a substantive rank of Havildar Clerk when the order depriving him of the benefit was passed by the authority. It is stated that the provisions of Army Hqrs letter dated 22.12.1999 are operative w.e.f. 07.12.1999 and do not have retrospective effect. It is also specifically stated that there is due compliance to the provision of Army Rule 22 and the petitioner was granted due hearing and the order of punishment passed by the initial as well as the appellate authority does not call for any interference.

(3.) Learned counsel appearing for the petitioner has primarily contended that the petitioner was holding a substantive rank and as such, the Officer Commanding had no jurisdiction to inflict any punishment upon him even if the article of charge was stated to be correct and proved. In support of his contention he has relied upon the letter issued by the respondents themselves on 22.12.1999 wherein it is stated as under:-