N. PURUSHOTHAMAN Vs. OFFICER COMMANDING

JUDGEMENT

(1.) The Judgment of the court was delivered by Jagannatha Rao, C. J.- The Writ Petitioner is the appellant herein. He was a Junior Commissioned Officer in the Army. He was charge sheeted for two offences as per Ext. P-13, dated 27th January 1990. The first charge was in relation to S.41 (2) of the Army Act, while the second charge was in relation to S.41 (1) thereof. They read as follows:

(2.) A General Court Martial was conducted according to the Army Act and; rules in which the Writ Petitioner fully participated and he was found guilty. Ext. P-20 contained the findings of the General Court Martial which reads as follows: "The Court find that the accused JC-144656K Subedar (Technical) Purushothaman N. of 181 (Independent) Artillery Brigade Workshop Company E.M.E., attached with 284 Medium Regiment is guilty of all the charges."

(3.) The Writ Petitioner contended before the learned Single Judge that though there was a summary evidence originally recorded, it was given a go-by and a second summary evidence was taken. During the second summary evidence, the person who had been originally detailed at the investigation stage was appointed to record the summary evidence. He also alleged that members of the General Court Martial was reduced to six from seven for the period from 14th February to 22nd February 1990. The learned Judge considered these objections in detail and for that purpose called for the relevant records. So far as the recording of the summary evidence is concerned, the first summary of evidence was set aside for non compliance with R.22 of the Army Rules and so far as the second summary of evidence is concerned, the Writ Petitioner had signed the summary evidence agreeing that R.22 of the Army Rules had been complied with on that occasion. The summary evidence was recorded by Lieutenant Colonel S. S. Chatwal in the presence of an independent witness. The learned Judge also found that there was no legal bar in detailing an officer who had recorded evidence in the Court of Enquiry, to record the summary evidence. The Writ Petitioner was also given one more opportunity to cross examine the witness. The learned Judge rejected the contention that the charges were improper. Adverting to R.28 to 32 of the Army Rules, the learned Judge held that so far as both the charges are concerned, the essential ingredients have been set out, namely, disobedience of a lawful command given by a superior officer. The Commanding Officer is defined in S.3 (5) and superior officer is defined in S.3 (23). The sixth respondent, Capt. A. K. Manrai, according to learned Judge, very much comes under the chain of command and was competent to give orders to any Commissioned Officer. The charge sheet was properly drawn up and was signed by the competent authority and it is not vague in any particulars. The learned Judge then considered the position whether there are any circumstances which vitiated Exts. P-20 findings and P-21 sentence. The learned Judge considered the evidence recorded in the chief examination and also the evidence recorded in cross examination by the Writ Petitioner and came to the conclusion that the proceedings of the General Court Martial were not vitiated in any manner and that there was no violation of principles of natural justice. In fact, the petitioner was permitted, during the course of the proceedings, to engage a counsel on his behalf. Coming to the charges, the learned Judge found that the first respondent ordered the petitioner to wear belt along with his uniform and the first respondent was the Officer commanding of the petitioner and, therefore, his orders were to be obeyed by the petitioner. Petitioner was also ordered by Capt. A. K. Manrai to forward a report and both the orders were disobeyed by the petitioner. The learned Judge then stated that the writ petitioner can pursue any other remedies under the Army Act if he is aggrieved.