SAROJ TANEJA Vs. UNION OF INDIA

JUDGEMENT

(1.) The matter lics in a very narrow compass and the facts of the case could be stated in very short terms.

(2.) The petitioner in thev writ petition, Mr. K.K. Taneja, was presented before the General Court Martial and was dismissed from service. He filed the CW 1253/78 challenging the Court Martial proceedings. That writ petition was allowed on the 2nd of November, 1987, and ultimately, the judgment of this Court was upheld by the Supreme Court. Later on, a notice under Section 19 of the Army Act, 1950 read with Rule 14 of the Army Rules, 1954 was issued. On the 30th of October, 1991 this Court passed ad interim orders in the following terms: "CWP 3382/91 Rule. CM 5645/91 Notice for 4th of December, 1991. In the meanwhile, the respondents shall not act on the basis of the impugned show-cause notice dated 29th of August, 1991. Dasti, as prayed."

(3.) The ad interim order was modified in the following terms on the 10th of May, 1993: CM 5645/91 in CW 3382/91 The petitioner was Court-martialled for incidents which took place in the year 1976. The General Court Martial, subject to confirmation, announced the following sentence to be imposed on the petitioner: (A) To forfeit 5 years of service for the purpose of promotion, and (B) To be severally reprimanded. The sentence was sent for confirmation to Major General Bhardwaj, General Officer Commanding, 19 Infantary Division. The said Officer passed an order on 17th November, 1976 directing the General Court Martial to reassemble again for the purpose of reconsidering the sentence awarded by it in the light of the observations made in that order. On 18th November, 1976 revised sentence was passed and the petitioner was directed to be dismissed from service. The sentence was again sent for confirmation. Before the revised sentence was confirmed by the Competent Authority, the petitioner submitted a petition under Section 164 of the Army Act to the Chief of the Army Staff. The Chief of Army Staff confirmed the sentence passed on the petitioner. The post-confirmation petition of the petitioner was rejected by the Central Government. The Court Martial proceedings were challenged by the petitioner in CW 1253/78. The writ petition was allowed bv a learned Single Judge of this Court on 2nd November, 1987, inter ailia. holding that the order passed by the Major General Bhardwaj on 17th November, 1976 was without jurisdiction. Since the order was passed by an officer not competent to do so, the subsequent revision of the sentence by the Court Martial in pursuance of the directions given by Major General Bhardwaj was also held to be irregular and invalid. The Union of India unsuccessfully challenged the decision dated 2nd November, 1987 in appeal and in Special Leave Petition before the Supreme Court. After the dismissal of the Special Leave Petition a show causenotice dated 29th August, 1991 was issued by respondents in exercise of power under Section 19 of the Army Act read with Army Rule 14. The show cause notice, inter ailia, states that the Chief of Army Staff is satisfied that the misconduct of the petitioner of using criminal force to a woman intending to outrage her modesty, contrary to Section 154 of Indian Penal Code renders further retention of petitioner in service undesirable. It also states that since the petitioner has already been tried by Court Martial, the proceedings of which were later quashed by the Delhi High Court, on technical grounds, and the misconduct of the petitioner having become time barred in terms of Section 122 of the Army Act, the further trial by another Court Martial is both inexpedient and impracticable under the Army Act. Under the Directions of the Chief of Army Staff, the petitionor was called upon to show case as to why his service should not be terminated by the Central Government under the provisions of Section 19, Army Act read with Army Rule 14. The show cause notice has been challenged in the writ petition. As interim relief by this application, the petitioner seeks stay of the operation of the show cause notice. By an ex parte order made on CM 5645/91 on 30th October, 1991, it has been directed that the respondents shall not act on the basis of the impugned show cause notice dated 29th August, 1991. This application has come up after notice to the respondents. I have heard learned Counsel for the parties. Opposing the application, learned Counsel for the respondents strongly relies on a decision of the Supreme Courtin Chief of Army Staff and Others v. Major Dharam Pal Kukrety, (1985) SC Cases Page 412, holding, under some what similar circumstances, that the action of the Chief of Army Staff in issuing notice under Army Rule 14 was neither without jurisdiction nor unwarranted in law. The question for the present is should the validity of impugned notice be adjudicated at this stage or should the respondents be permitted to proceed further pursuant to the notice and the question of the validity of the notice be left open to be adjudicated upon at a later stage if it becomes necessary. In my opinion at this stage, it is not necessary to adjudicate upon the validity of the show cause notice as the possibility of the respondents accepting the version of the petitioner, on consideration of his reply to show cause, cannot be ruled out. The respondents have not been able to proceed further on the basis of the show cause notice in view of the ex-parte order of stay granted on 30th October, 1991, which is continuing since then. I am informed by Counsel for the respondents that the petitioner would even retire within about four years. It may also be noticed that the Supreme Court in the aforesaid decision after noticing that the alleged incident, in respect of which the officer was tried, took place nearly 10 years ago, observed that the Chief of Army Staff should take into account the conduct and behaviour of the officer during the intervening period and if they have been in conformity with good order and military discipline and the high traditions of the Indian Army, he may consider the desirability of proceedings further in the matter. Having regard to the aforesaid facts and circumstances, the appropriate course would be to permit the respondents to take a decision on the show cause notice. Consequently the petitioner is granted opportunity to file reply to show cause notice within a period of four weeks of the communication of this order by the respondents to him. The respondents shall, thereafter, decide the matter in accordance with law. In case, however, the decision which may bearrived at by the respondents is adverse to the petitioner, the same will not beimplemented except after obtaining further orders from this Court. Since the alleged incident in respect of which petitioner was Court-martialled took place in 1976 the Chief of the Army Staff should take into account factors noticed in Para 18 of the aforesaid decision of the Supreme Court. The order dated 30th October, 1991 is accordingly modified in the above terms. The application is disposed of. A copy of the order may be given dasti to Counsel for the parties."