A K HANDA Vs. UNION OF INDIA

JUDGEMENT

(1.) By this Order, M.P. No.2292 of 1987 A.K. Handa and another v. Union of India and others is also disposed of.

(2.) The petitioner is a commissioned officer in Indian Army, having been appointed on 9-2-1964 and he is at present holding substantive rank of Major. He was officiating as Lt.Colonel since 1-4-1984 and was posted as Commanding Officer, Depot Regiment (Corps of Signals) since 8-5-1984. For the year 1984-85, the GOC, MP B and O Area, headquarter Jabalpur, wrote an adverse confidential report dt.16th May 1985 that while the petitioner's professional competence was very satisfactory and he appears to have had much potential, he would not vouchsafe for the officer's moral qualities, gets into shady financial deals with the money of his subordinates, and his integrity is questionable. Not likely to command respect. In view of this adverse confidential, he was reverted to his substantive rank of Major. The GOC also ordered Genral Court Martial (GCM) against him. The petitioner was charge-sheeted on 2-6-1986 in respect of the following three charges : (i) He dishonestly misappropriated a sum of Rs.12,900/- belonging to Ex-Signalman(Sigmn) Kaj Naidu; (ii) he misappropriated a sum of Rs.15063.90 p/- belonging to late Ex-Sigmn Deepa Ram and thereby committed a civil offence, that is to say, dishonestly misappropriating property contrary to S.403 IPC; and (iii) that he in a letter dt. 9th Jan. 1985 addressed to Smt. Narayana Devi, widow of late Ex-Sigmn Deepa Ram, confirmed that complete amount of Rs.15063.90p/- had been remitted by money order while knowing the same to be false. The GCM was to commence from 2-7-1986 and in the meanwhile the present petition was filed on 28-6-1986 for stay of the proceedings of the GCM but this Court on 1-7-1986 declined to grant any stay. The GCM found the petitioner guilty on 18-7-1986 in respect of charges 1 and 2 and awarded following sentence subject to the confirmation by the confirming authority: (i) forfeiture of service for the purpose of promotion for 4 years, (ii) forfeiture of seniority by 2 years and (iii) severe reprimand. This petition was admitted on 22-8-1986. In the meanwhile, the confirming authority i.e. GOC Central Command, Lucknow, directed the GCM to reconsider the question regarding sentence which was too linient, by exercising revisional powers under S.160 of the Army Act, 1950, (hereinafter referred to as the Act). The petitioner was then given a notice by GCM on 18-9-1986 directing to appear on 25-9-1986 for reconsideration of the sentences. The petitioner then moved another application for stay of further proceedings before the GCM which was rejected by this Court on 24-9-1986. On 25-9-1986 on reconsideration of the sentence, the GCM awarded cashiering of the petitioner under S.74 of the Act. The petitioner also moved an application for joining the members of the GCM as respondents and notices were issued to them. Another application for stay was moved by the petitioner which was rejected by this Court on 25-10-86. The petitioner then filed a petition under Section 164 of the Act to the GOC, Southern Command, against the order of the GCM on 18-7-1987. By subsequent order dt.11-2-1987, this Court directed that pending disposal of the petition, the petitioner shall not be cashiered as a consequence of any order passed during confirmation proceedings. This order was confirmed on 13-3-1987, hut the application made by the wife of the petitioner for joining her as a petitioner in the case was rejected. On that day, as application for amendment of the petition was also moved challenging certain more provisions of the Act and the Army Rules and Regulations. On 3-8-1987 the petitioner filed 3 applications, one for annulment of GCM and for summoning of its record, another for payment of his pay and allowances from the month of Feb.1987 onwards and the third for further amendment of the petition. Surprisingly, without any order from the Court the petitioner has incorporated the proposed amendments in the petition on 23-6-1987. The case was listed for hearing on 20-7-1987 and with the consent of the parties the case was listed for hearing on 3-8-1987. It was also directed that reply to the amendment application may be filed on or before that date. It does not appear that any reply has been filed to any of the aforesaid 3 applications. The petition was heard by the Constitutional Division Bench headed by the Hon'ble the Chief Justice on 3-8-1987 but on 4-8-1987 the case was released and was directed to be listed for hearing before this Bench on 5-8-1987. This Bench adjourned the case to 7-8-87 on the request of the counsel for the petitioner. The petitioner and his wife filed another petition M.P.No.2292/87 on identical grounds incorporating subsequent eventson 4-8-87. This petition was also heard on 7-8-87 and arguments concluded on 10-8-87, intervening days being holidays. However, on 10-8-87 the petitioner filed two more applications, one for production of certain more documents and another for contempt of Court for appropriate action since the petitioner was not being permitted to appear and assist his counsel in the petition.

(3.) The petitioner's case as given in the petition before the amendment is that he has unblemished record of 22 years of service and he has achieved six medals. The facts leading to GCM would indicate that there are no ingredients of offence under section 403 and there is no misappropriation. Ex-Sigrrin Kaj Naidu was relased from Army as a Psychiatric case. His brother Sigmn Mariadas was an orderly (Sahayak) with the petitioner for the last 9 years and his father Hawaldar Simachalan had served the petitioner from 1964 to 1967 in Gauhati. Pending finalisation of final settlements of accounts (FSA) and payment of Armed Forces Provident Fund (AFPF), he was sent home with an escort. The petitioner, therefore, helped him in procuring his payment and all his dues amounting to Rs.17,489.20p/- were paid to him on 8th May 1984 personally by Captain K.S. Parmar. Another Rs.7000/- were sent to him throug his brother Mariadas which was received by the Ex-Sigmn in Sept.1984 and an acknowledgment obtained by Mariadas. Therefore, the charge No.1 against him was baseless. Regarding charge No.2, Ex-Sigmn Deepa Ram was a deserter from Army for 4 months and he was brought to Jabalpur in the Unit under the control of the petitioner. His was a case of acute Cerebral Degeneration. Since he had surrendered voluntarily and his condition was pitiable, he was boarded out of service. On 18-8-1984 he was allowed to go home along with his wife Naraina Devi and other relations and he expired on reaching home. The petitioner made efforts for early payment of FSA and AFPF. The payment was received on 5-9-84 by Captain K.S. Parmar and it was decided that money should be kept in the personal custody of the petitioner, to be handed over to Naraina Devi as she had disputes with her in-laws. As Naraina Devi had requested that the amount be sent by instalments, the petitioner had remitted the amount by instalments, otherwise her in-laws would grab all the money and throw her out of the house. Accordingly, the petitioner had despatched the amounts by instalments through Central Bank of India in the Malosar (Rajasthan) Branch of the Bank. However, on 21-1-1985 when the petitioner was on leave, a letter dt.28-11-1984 was received from Naraina Devi that she has not received any amount. Taking advantage of the absence of the petitioner, Major C.K. Saini who was officiating as Commanding Officer and had grudge against the petitioner, sent a report to the GOC, MP, B and O Area, Jabalpur, on 29-1-1985. This is falsified by the subsequent letter of Naraina Devi dt.8-3-1986 denying that she had sent any complaint. So there was no basis for the second charge also, yet the Court of Enquiry was ordered in May 1985 and enquiry was held by overlooking important pieces of evidence i.e. letters of Mariadas and Naraina Devi, summary of evidence of Cap. K.S. Parmar and Subedar Major Rachhapal Singh, and GCM was ordered. Therefore, no offence under S.403, IPC has been made out as the parties have received full amounts and the complaint is a fabricated document. The adverse confidential report given by GOC, MP, B and O Area, Jabalpur, on 16-5-1985 before Court of Enquiry is complete, shows pre-conceived and pre-determined mind of all concerned authorities. Section 84 is discriminatory inasmuch as officers of the rank of Lt.Colonel and above have been kept outside the purview of this provision and there can be summary enquiry by the officer concerned for imposing punishments mentioned therein. Section 125 of the Act gives option to the convening authority either to order GCM or prosecute the officer in Criminal Court, but here there was no application of mind, before ordering GCM. The petitioner, therefore, prayed that Section 84 of the Act be declared unconstitutional, the petitioner should not be tried before GCM and to quash the adverse confidential report against the petitioner.