V N SAXENA Vs. UNION OF INDIA

JUDGEMENT

(1.) By means of this writ petition, moved under Article 226 of Constitution of India, the petitioner has sought direction in the nature of certiorari, quashing the impugned order dated 13.11.1990, whereby his services, dismissed from Indian Army, by the respondents.

(2.) Brief facts of the case, as narrated in the writ petition, are that the petitioner entered in the Indian Army as 2nd Lieutenant with service No. IC 39774Y and was posted as Officiating Troup Commander in 1481 Light Regiment at Galuthi. On 2.9.1983, while petitioner was serving on said post, a theft of Rs. 14,000/-, took place in the regiment with regard to which Gnr Udai Singh was one of suspects. On instructions of Officiating Commanding Officer Maj. Jagga Singh, the petitioner along with 2/Lt. K.S. Paul, pursued the matter, and on pointing out of Gnr Udai Singh (since deceased), recovered Rs. 12,000/- out of the theft amount. The said Gnr was suspected for the reason that after the theft was committed, he disappeared from the unit, without intimating anyone. On inquiry, it was found that said Gnr had gone to Military Hospital on a pretext that he was suffering from stomachache. But on inquiry, it was found that no person with the name of said Gnr was admitted in the hospital on said date till 3:15 P.M. But later on, suddenly he got himself recorded as admitted at 5:55 P.M. and remained in the hospital till 5.9.1983, when nothing was found clinically wrong with him. Again, after a week on 12.9.1983, Mr. Udai Singh, got himself admitted in the Military Hospital with a complaint that he has pain in abdominal region due to renal failure. On which, he was shifted to Military Hospital, Udham Singh Nagar and thereafter referred to Delhi. Later on, while being shifted to Delhi, he expired. With Gnr Udai Singh (deceased), Gnr Gyan Singh was also a suspect and after a summary Court Martial, he was found guilty and sentenced with punishment. Meanwhile due to the death of the Gnr Udai Singh, Court inquiry was held against the petitioner as well as eight other army personnel's viz. Maj. Jagga Singh, 2/Lt. K.S. Paul, Hav Jeet Ram, Hav Sohan Lal, Naik S.I.K. Nair, L/Nk S.S. Kawre, L/Nk Ram Pratap and L/Nk Ram Avtar. The allegations against all the above personnel, including the petitioner was that they were responsible for beating Gnr Udai Singh and using 3rd Degree method against him, which ultimately led to his death. A charge sheet dated 19.4.1985, was issued against the petitioner and proceedings were initiated for recording summary of evidence. On the basis of proceedings in summary of evidence, a show cause notice dated 31.5.1986, was served on the petitioner, wherein he was charged with the allegation that he did not ensure that Gnr Udai Singh who was being questioned for alleged theft, not manhandled or ill treated. A reply was sent by the petitioner on 2.6.1986 to said notice. On conclusion of proceedings of summary of evidence, the petitioner was informed vide letter dated 20.10.1986 (copy Annexure-5 to the writ petition) that the disciplinary case against him and other two officers has been closed. Suddenly in May, 1989, the petitioner received another show cause notice, purported to have been issued under Section 19 of Army Act, 1950 read with Rule 14 of Army Rules, 1954 calling upon the petitioner to show cause as to why his services be not terminated on the ground which were identical to those as contained in charge sheet dated 19.4.1985. It is pertinent to mention here that no Court Martial was held in the matter. On 25.7.1989, a reply to above mentioned show cause notice was also given by the petitioner and ultimately vide order dated 13.11.1990, the petitioner was dismissed from services (copy Annexure-1 to the writ petition). The said order has been challenged, before this Court, on the ground that the impugned order is misconceived, arbitrary and in gross violation of the principle of natural justice. It is also alleged that since the contents of show cause notice earlier after charge sheet dated 19.4.1985 and show cause notice dated 15.5.1989, are identical and in the proceedings of summary of evidence, petitioner was earlier, not found guilty nor any Court Martial was held, as such the impugned order, three years after the close of summary of proceedings, is bad in law, as it was not open for the respondent No. 2 Chief of Army Staff, to take shelter of Rule 14 of Army Rules, 1954, in such circumstances. It is further alleged that no evidence whatsoever was found in the proceedings for summary of evidence, implicating the petitioner nor thereafter new material was there on the basis of which.fresh show cause notice under Section 19 of Army Act, 1950 or order under Rule 14 of Army Rules, could have been issued. It is also alleged in the writ petition that recovery of theft money was made from Gnr Udai Singh on 5.9.1983, while he got admitted on 12.9.1983, complaining pain in abdominal region due to renal failure. As such there was no nexus between the recovery of money and the death of Gnr Udai Singh. It is also alleged by the petitioner that prior to the incident of theft also, Gnr Udai Singh had been hospitalised between 10.8.1983 to 27.8.1983 on the complaint that he was suffering from Amoebic Typhilitics. Therefore, dismissal of petitioner from the services is totally misconceived, which has been sought to be quashed.

(3.) On behalf of the respondents, a counter affidavit was filed by Col. Y.S. Bisht in which particulars as to petitioner's entry in the army, his posting and impugned order of dismissal, passed against him are not denied. It is stated in the counter affidavit that initially there were four suspects, namely Hav Kartar Singh, Hav Narottam Lal, Gnr Udai Singh and Gnr Gyan Singh in the matter of theft to Rs. 14,000/- from the regiment. It is also stated in the counter affidavit that on 3.9.1983, at dinner time, Maj. Jagga Singh, Officiating Commanding Officer, ordered petitioner and 2/Lt. K.S. Paul, to get the four suspects thrashed out so that the theft can be worked out. On 4.9.1983, Gnr Gyan Singh was taken to Balnoi Mor and was thrashed to obtain his confession. It was done under the orders of the petitioner. It is further stated in the counter affidavit that Gnr Udai Singh was brought to Unit Lines on 5.9.1983, in hospital dress with hands tied behind his back. On his arrival, on the same day, Mandir Parade was held at about 18.00 hours. It is further stated in said affidavit of Col. Bisht that on orders of petitioner, unauthorised punishment of beating was given to Gnr Udai Singh (deceased), Gnr Gyan Singh by Hav Sohan Lal, Hav Jeet Ram, N.K. S.I.K. Nair, L.N.K. S.S. Kaware and L.N.K Ram Avtar. It is alleged that Gnr Gyan Singh and Gnr Udai Singh were tortured and Gnr Gyan Singh (No. 14344346Y), gave details regarding torture of hanging of Gnr Udai Singh upside down by a rope and inserting bottle in his anus, which ultimately resulted in recovery of substantial amount of stolen money. He further gave details that when he apprehended the similar torture, so he confessed and gave remaining amount, to avoid the brutal torture. However, in the counter affidavit, it is admitted that Gnr Udai Singh was admitted again in the hospital on 12.9.1983 and thereafter on 15.9.1983, he was put to a list of 'Acute Renal Failure'. On 17.9.1983, he was lifted by helicopter and later when was being sent to Delhi on 18.9.1983, he died. The probable cause of the death in the post mortem report, as stated in the counter affidavit is that 'death could have been due to renal failure as diagonised clinically'. The counter affidavit, filed on behalf of the respondents, further discloses that according to the surgeon, the renal failure could have been due to the reasons: (a) Shock due to peripheral circula failure, (b) Crush syndrome (multiple injuries), (c) Kidney failure. As per the post mortem report, the external injuries were:- 'multiple old partly healed up abrasions with scab formulation sealtered over left forehead, both wrists, at leg and ankle at places and on the back at places'. In Para 21 of the counter affidavit, it is stated that petitioner did not disclose regarding the act of beating, to Commanding Officer Lt. Col. G.S. Attariwala. It is also stated that Court of Inquiry was presided by Col. D.S. Sachar on 28.10.1983. As per the counter affidavit, involvement of the petitioner in the beating of Gnr Udai Singh as well as Gnr Gyan Singh was established. However, it took long time to filter out evidence and processing the casevis a vis other officers, allegedly involved in the matter. Meanwhile, period of limitation provided of three years for initiation of trial by General Court Martial, under Army Act, 1950 passed, and no trial by Court Martial was possible. As such the administrative action was taken under Section 19 of Army Act, read with Rule 14 of Army Rules, 1954. Lastly, it is stated in the counter affidavit that impugned order is just, proper and not in violation of any of the laws.