HARPAL SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has filed this petition under Article 226 of the Constitution of India seeking an order of this Court for issuance of appropriate writ in the nature of certiorari or any other writ or mandamus, order or direction quashing the order of confirming authority passed as a revision order on 14.10.1986, the judgement and order of the General Court Martial (GCM) in pursuance of the directions given, the aforesaid order of the confirming authority.

(2.) The petitioner is stated to have been commissioned in the army Corps of Signals' on 24.12.1970 with two years ante-date seniority fixed as on 24.12.1970. In 1983, the petitioner was posted to 85 Infantory Brigade Signal Company, which was a sub-unit of 11th Infantory Division Signal Regiment. The petitioner's unit was participating in exercises between December, 1983 and February, 1984. The petitioner having the command consisting of four Junior Commissioned Officers (JCOs), i.e., Subedars and Senior Subedars etc. and 110 of other ranks in his Company when it was posted at Gandhi Nagar, Gujarat. For the administrative purposes, the Company was divided in to six sections, i.e., (1) Mechanical Transport Section (2) Radio Section (3) Cipher, Section (4) Ammunition and Weaponary Section (5) Clothing and Rationing Section, and (6) Administration Section. These various sections were being controlled by the petitioner with the help of the JCOs. For maintaining proper control against pilpherage etc., the petitioner was maintaining a regular system of checks and counterchecks on the store. In the event of shortage of fuel and need for the same, the Company had to borrow fuel from another sister Company or Regiment and the same was duly recorded. The receipt voucher for the same was prepared by a Non Commissioned Officer (NCO) Incharge Havaldar Shiv Shankar and was counter- signed by Subedar Ram Raj as well as by Lending Officer, as was the case on 28.2.1984 when 800 litres of diesel was borrowed from 14 Bihar Battalion. It is alleged that till September, 1984, there was no surplus store reported. On September 17, 1984, the said Havaldar Shiv Shankar alongwith one Nayak B. Gadge, a driver of the vehicle were apprehended by military police for disposing of 8 barrels (1,600 litres) of diesel and 2 barrels (400 litres) of petrol in the civil. On being apprehended, Havaldar Shiv Shankar made a voluntary confession on 18.9.1984 wherein he had owned the entire blame regarding sale of the said fuel items. The said confessional statement was recorded before Captain V.S. Narayanan of 11th Infantory Division Signal Regiment at Ahmedabad in the presence of an independent witness, namely Captain K.K.Bains of the same unit. In accordance with law, a Staff Court of Inquiry was instituted on 22.9.1984 and based on the evidence thereof, the disciplinary proceedings were initiated against Havaldar Shiv Shankar and Nayak B. Gadge as also the petitioner, who being the Officer Commanding was also involved in the said disciplinary proceedings. Staff Court of Inquiry ordered by the Brigade Commander of Headquarters in 85 Infantory Brigade was to investigate and ascertain the circumstances under which 10 barrels of FOL (Feul Oil Lubricant) was being disposed of by Havaldar Shiv Shankar and Nayak B. Gadge. It appears that the said Staff Court of Inquiry apart from the said Shiv Shankar and B. Gadge, also put the blame on a signal-man Joginder Pal Singh and the petitioner for the incident. As such, it was decided to proceed against all the four. The action against Joginder Pal Singh was disposed of summarily By Commanding Officer of the said 11th Infantory Division- Signal Regiment by awarding him 28 days of rigorous imprisonment in military custody. Peculiarly enough instead of conducting one trial for all the accused persons, the trial of two persons, namely Shiv Shankar and B. Gadge was separated and was conducted by Commanding Officer, 18th Madras Regiment and concluded by imposing comparatively lenient punishment while in the case of the petitioner, General Court Martial was ordered by the CO, 11th Infantory Division Signal Regiment. The said GCM was ordered for an offence under Armies Act under Section 52(a) which is akin to Section 378 of Indian Penal Code for theft. In all 20 witnesses were examined by the prosecution and 5 witnesses were examined by the defence. The defence wanted Captain Narayanan's statement also to be recorded, but by that time Narayanan had retired and a questionaire was prepared to examine him, which was sent, but there is no record available to show as to what happened to that questionaire? Whether those interrogatories were sent or if sent were answered by Capt Narayanan or whether those interrogatories were actually tendered to him for reply or not is not very clear .from the record, but the correspondence shows that the said interrogatories were forwarded to the Headquarters. The petitioner was found guilty of the offence alleged and was awarded the punishment of (1) loss of seniority towards promotion for two years, (2) severe reprimand, and (3) substantive rank of Major to be reckoned w.e.f. 24.12.1985 instead of 24.12.1983.

(3.) This finding and the recommendation for punishment was placed before the confirming authority for confirmation of punishment.