UNION OF INDIA Vs. MAJOR VIRENDRARAI J KHAROD

JUDGEMENT

(1.) In this appeal directed against the judgment and order passed by the learned single Judge mainly two questions arise for our consideration: (i) Whether the High Court h8d jurisdiction to entertain the respondents petition under Art. 226 of the Constitution of India; and (ii) whether a General Court Martial was legally and validly convened. If both these questions are answered against the appellants this appeal shall have to be dismissed. The aforesaid two questions arise in the backdrop of the following facts.

(2.) The respondent who is a Civil Engineering graduate joined the military service as a 2nd Lieutenant in the Corps of Engineers on 11/12/1962 He was directly promoted on an accelerated promotion from 2nd Lieutenant to Captain. He was thereafter promoted as Major. The respondent was posted as Garrison Engineer at Baroda on 5/05/1972 According to the respondent while he was serving as Garrison Engineer at Baroda he came in conflict with his superior officer Lt. Col. Sundaram who was the Commander Works Engineer as he declined to comply with unreasonable requests which were contrary to the rules made by the said superior officer. The respondent alleged that he was subjected to harassment due to unreasonable attitude adopted by Lt. Col. Sundaram in various matters. It is alleged that a vigilance check of the work done by the respondent was made at the instance of Lt. Col. Sundaram but nothing objectionable was detected. How-ever Lt. Col. Sundaram appointed at Board of Officers on 29/08/1974 to investigate the circumstances in which excess provisioning in the divisional stock was ordered by the respondents office and also to verify whether purchases of stores and works carried out through local Bazar agencies on supply orders during April to July 1974 were in accordance with the prescribed procedure. According to the respondent the finding recorded by the Board of Officers were in his favour. However the Commander Works Engineers disagreed with those findings and referred the matter to the Chief Engineer West Coast Bombay. The matter was then referred to the Headquarters B.S.A. which directed Station Headquarters Baroda to hold a Staff Court of Enquiry to investigate into the case. Accordingly Station Headquarters Baroda by its order dated 20/12/1974 appointed a Court of Enquiry. The proceedings before the Court of Enquiry were over on 30/04/1975 when the respondent was permitted to leave Baroda and join his parent unit viz. 36 Unit Border Road Task Force. The report of the Court of Enquiry was submitted to June 1975. On the basis of the said report the Commander B.S.A. ordered that formal disciplinary action should be taken against the respondent. Thereafter on or about 23/02/1976 the respondent was directed to report back to Baroda. For investigation of the charges a summary of evidence was to be recorded. The evidence was recorded between May and August 1976. The Commanding Officer (C.O. for short) after examining the evidence found that the charges levelled against the respondent were baseless and they were either disproved or not proved. He gave his opinion on 31/08/1976 Relevant part thereof reads as follows:

(3.) It would thus appear that the C.O. recorded a clear finding that the charges were disproved and the respondent was not guilty of any offence. He therefore recommended that the respondent be exonerated of all the three charges and reverted back to his corps with full honour. The respondent alleged that although the charges levelled against him were dismissed a General Court Martial was convening to try him for those charges. The respondent objected to the convening of a General Court Martial and raised a plea-in-bar but that plea was overruled. The General Court Martial found the respondent guilty of all the charges and ordered his dismissed from service subject to the confirmation by the higher authority The Chief of Army Staff agreed with the findings recorded by the General Court Martial and confirmed the punishment by his order dated 9/05/1978 The respondent thus came to be dismissed from service. The respondent preferred an appeal to appellant No. 1 Union of India but this appeal was dismissed on 2/01/1980 As no reasons were communicated to the respondent for the dismissal of his appeal. he applied for the same However . inspite of repeated requests and reminders made by the respondent on reasons were supplied to him. The respondent therefore approached this Court by want of petition being Special Civil Application No. 497 of 1981 under Art. 226 of the Constitution of India.