RAM CHANDRA TIWARI Vs. UNION OF INDIA

JUDGEMENT

(1.) This intra-Court appeal under Chapter-VIII Rule 5 of the Rules of the Court has been preferred by the petitioner-appellant (hereinafter referred to as the petitioner) Ram Chandra Tiwari, aggrieved by the judgment dated 16" March, 2005 of the Honourable Single Judge of this Court whereby the writ petition No. 2115 (S/S) of 2000 of the petitioner has been dismissed. The petitioner has appeared in person before us and has reiterated the same arguments which he advanced before the Honourable Single Judge and besides oral submissions has also filed written argument along with an affidavit which has been taken on record. Learned Standing Counsel appearing for the respondent has also filed his written, arguments besides advancing submission orally.

(2.) The facts in brief giving rise to the present appeal for better understanding are stated as under : The petitioner was enrolled in Army Medical Corp as Non-Commissioned Officer in the year 1984. It is said that he did not maintain responsible and disciplined conduct as Army personnel resulting in award of several 'red ink entries' and the resultant punishments including reprimands and monetary fines. Ultimately, the Commanding Officer sought, sanction of the competent authority to discharge petitioner under Sec. 22 of the Army Act, 1950 (hereinafter referred to as the Act) read with Rule 13(3) of the Army Rules, 1954 (hereinafter referred to as the Rules). A show cause notice was issued to the petitioner on 13th Dec., 1994 which is said to have been replied by him on 12th Jan., 1995. Thereafter a discharge order was issued on 1411 Feb., 1995 discharging him from service. He assailed discharge order in Writ Petition No. 2/95 filed before the Honourable Sikkim High Court wherein an interim order dated 4th March, 1995 was passed restraining army authorities from giving effect to the order of discharge impugned in the said writ petition. Complying with the interim order the respondent competent authority re-instated the petitioner in service on 911 March, 1995 and did not give effect to the order of discharge and in fact cancelled the order of discharge. Subsequently, the Writ Petition No. 2 of 1995 was disposed of by Honourable Sikkim High Court on 9th Aug., 1995 permitting the petitioner to exhaust his statutory remedy, if any, under the Act. Since the discharge order was already cancelled.there was nothing further to be done by the petitioner there against. The petitioner thereafter was issued charge-sheet dated 2911 Jan., 1996 for conducting a summary Court martial (hereinafter referred to as SCM) on the allegations that he disobeyed lawful command given to him by superior officers and therefore, was guilty of violating provisions of Sec. 41(2) as well as Sec. 42(e) of the Act. The petitioner was found guilty in SCM and subsequently was awarded punishment of reduction in rank and dismissal from service vide order dated 2^d March, 1996. His statutory petition filed under Sec. 164(1) of the Act was rejected on 411 Sept., 1996, where against his writ petition has been dismissed by the Honourable Single Judge.

(3.) The first submission of the petitioner is that the impugned order is vitiated in law since procedure prescribed under Rules 22, 23 and 24 of the Rules has not been followed, inasmuch as the proceedings of enquiry under Rule 22 must be reduced in writing and the statement of witness have to be obtained and opportunity of cross-examining the prosecution witnesses must have been afforded to the accused petitioner and the signature of the witnesses as well as the accused petitioner must have been obtained in the proceedings of enquiry. In support of the submissions he placed reliance on the Apex Court decision in Union of India and others Vs. Naik Subedar Baleshwar Ram and others, 1991 SCC (Cri.) 417 and Lt. Col. Preet Pal Singh Vs. Union of India, 1992 (3) SCC 140 .