DHARAM PAL KUKRETY Vs. CHIEF OF ARMY STAFF

JUDGEMENT

(1.) The petitioner in the instant case Major Dharam Pal Singh Kukrety, is a Permanent Commissioned Officer of the Indian Army. At the relevant time he was posted in the Army School of Mechanical Transport, Faizabad as Officer Commanding, Administrative Wing and the Headquarter Company. An incident appears to have taken place on the night of the 6th/7th of November, 1975 as a result of which he was court-martialled.

(2.) The General Court-Martial was presided over . by Brigadier Surjit Singh Jaspal, Headquarter Central Command. The other members of the Court-Martial were Major Ashok Kumar Bansal, Major Murli Manohar, Capt. Santosh Kumar Tewari, and Capt. Thakur Das Verma. The Court-Martial heard the prosecution evidence, took the statement of the petitioner "and also examined the defence evidence. As a result, the Court-Martal by its verdict dated 13-3-1976 acquitted the petitioner. In the verdict it was announced that it was subject to confirmation. The General Officer Commanding Madhya Pradesh, Bihar and Orissa area, who was the confirming authority, did not confirm the verdict of the Court Martial, and directed that the petitioner should be tried by the General Court- Martial again. The same General Court Martial assembled on 14th April, 1976 at Lucknow and after hearing the parties reaffirmed its verdict of not guilty. This verdict was also announced as being subject to confirmation. The General Officer Commanding, Madhya Pradesh, Bihar and Orissa, respondent No. 3, in the writ petition, forwarded the papers to the General Officer Commanding-in-Chief, Central Command, Lucknow, as he was of the view that the verdict of the Court- Martial should not be confirmed. According to the counter-affidavit filed on behalf of the respondents this action was taken under Rule 70 of the Army Rules. The General Officer Commanding-in- Chief, Central Command by his order dated 25-5-76, which has been filed as Annexure A-I to the counter-affidavit, refused to confirm the verdict of the General Court-Martial. The petitioner was so informed.

(3.) According to the counter-affidavit filed by Brigadier F. R. Campos, Commander, Allahabad Sub-Area, Allahabad, respondent No. 2, the General Officer Commanding-in-Chief, Central Command was of the opinion that there was overwhelming evidence on the record in support of the charges and the findings of the General Court-Martial were perverse. It is further stated that the General Officer Commanding-in-Chief, Central Command was of the view that the petitioner should not be retained in service. Consequently, he forwarded the proceedings along with his recommendations to the Chief of the Army Staff on 29th June, 1976 for suitable action. Accoxding to the case of the respondents the Chief of the Army Staff was of the view that the petitioner was not "fit to be retained in service and therefore he issued a show cause notice to the petitioner dated 12th Nov., 1976, under Rule 14 of the Army Rules to show cause against action being taken to remove him from seryice. The show cause notice is dated 12th Nov., 1976, and it recites that the petitioner had been tried by -,a General Courf-Martial and that the Chief of the Army Staff was of the view that a fresh Court-Martial for- the trial of the offers was inexpedient ' and that the Chief of the Army Staff was also of the inipn that the misconduct of the petitioner disclosed in the proceedings before the Court-Martial rendered his further retention into service undesirable The petitioner was required to show cause within 25 days. A copy of the show cause notice has been filed as Annexure 7 to the writ petition.