SITA RAM PRASAD Vs. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE MINISTRY OF SHIPPING AND TRANSPORT AND ORS.

JUDGEMENT

(1.) In this writ petition the petitioner has challenged the order dated 29.8.73 passed by the General Court Martial, H/Q-15 BRTF, Kohima convicting and sentencing the petitioner under sections 68 and 69 of the Army Act, 1950 and the order dated 10.7.74 passed by respondent 2, Director General of Border Roads, Kashmir House, New Delhi confirming the aforesaid order and also the order No. F, 134 (1255)/64 R& B dated 8.11.77 issued by the Deputy Secretary to the Government of India in the Ministry of Shipping and Transport, dismissing the petitioner from service with immediate effect in purported exercise of power under Rule 19 (1) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965, for short - "CCS (CCA) Rules."

(2.) The petitioner, while working at Bhagalpur in Bihar as a confirmed District Saving Officer in the National Savings Organisation, under the Ministry of Finance, Government of India, was appointed as a Civilian Officer, Grade II in the General Reserve Engineer Force, for short "GREF", on 30.10.69 after due selection by the Union Public Service Commission. In the month of Oct., 1972 the petitioner was the Officer Commanding, for short "O. C.", of the 1642 Pioneer Company of the GREF, when the petitioner had to go on leave on account of a sudden bereavement in his family. On leave being duly granted, the petitioner handed over charge to Shri P. S. Ambermani, who acted as the Officiating O. C. of the said Pioneer Company during the petitioner's absence on leave. Sri Ambermani duly signed the Memorandum dated 12.10.72 of handing over and taking over charge, witnessing amongst other things that the stocks in the Company's canteen were correct and the said correct stocks were taken over by Sri Ambermani. The said 1642 Pioneer Company had a canteen for the use and benefit of Unit Personnel, like all other canteens of the GREF and it was under the command of the petitioner as the O. C. After the Memorandum of handing over/taking over was duly signed by the petitioner and the officiating O. C. Sri Ambermani on 12.10.72, the petitioner started his journey from the interior of Nagaland near the Indo-Burma border on way to his home in Bihar and he reached Dimapur on 14.10.72, and on 15.10.72 when he was about to proceed from Dimapur to his own town he was informed by the Staff Officer, 2 (Personnel) of HQ, Chief Engineer Project Sewak, that he was required to report back to respondent 5, Ramchandran, Commander of 15 Border Road Task Force, for short "BRTF", which is a GREF formation of which the petitioner's 1642 Pioneer Company was one of the constituent companies Accordingly, the petitioner reported to respondent 5 in the evening of 15.10.72. at Kohima where he was told by respondent 5 that Sri Ambermani had reported some shortage in the canteen stores and therefore he was required to go back to his Unit HQ to appear before a court of enquiry to be presided over by Sri M. P. Singh, Civilian Officer Grade-I to make investigation in respect of the aforesaid alleged shortage in the canteen. Accordingly, on 6th Oct., 1972, the petitioner started from Kohima with Sri M. P. Singh, who was at that time the Administrative Officer of HQ 15 BRTF and reached his Unit HQ on 17.10 72 where Sri M. P. Singh verified the canteen stocks and examined the witnesses during the next couple of days. Having concluded the court of enquiry, Sri M. P. Singh went back to the HQ of 15 BRTF and submitted the entire proceedings of the court of enquiry (first court of enquiry) to respondent 5. Sri M. P. Singh did not find any prima facie case of any stock shortage in the canteen. The Chief Engineer of Project Sewak (a project of the GREF of which 15 BRTF is one of the task forces and the petitioner's Company is one of the constituents of the Task Force) accompanied by respondent 5 came to the petitioner's Unit HQ of 15 BRTF. The petitioner having accordingly reported at the HQ of 15 BRTF was asked by respondent 5 about his personal bank balance. When the petitioner stated that he had about Rs. 16,000.00 in the bank, respondent 5 asked the petitioner to sign a cheque for Rs. 10,000.00in default of which the petitioner was threatened with dire consequences by respondent 5. The petitioner having signed a cheque under threat, also signed two pre-dated letters in respect of the aforesaid cheque which two letters were dictated by respondent 5 to his Stenographer who typed it out to be signed by the petitioner. Immediately thereafter respondent 5 physically took possession of the entire cheque book of the petitioner without asking the petitioner to hand over the cheque book to him. In the aforesaid two letters signed by the petitioner under threat from respondent 5 it was made to appear that the signing of the aforesaid cheque by the petitioner was voluntary. Subsequently on 6.8.73, the petitioner was given a back dated receipt being Receipt No. 226 dated 26.10.72 showing that the aforesaid amount of Rs. 10,000.00 given by the petitioner by the cheque mentioned above was taken on account of canteen advance. A few days thereafter respondent 5 cancelled the first court of enquiry and ordered for a second court of enquiry in pursuance of which a summary of evidence was recorded subsequently under orders of respondent 5 on an additional charge of improperly employing at his residence for private purposes 5 personnel of his Unit (names are given in the petition). On 5.8.73, respondent 5 who was at that time the Officiating Chief Engineer of Project Sewak issued the order convening a General Court Martial, for short "GCM", to try the petitioner in respect of three charges mentioned in the charge-sheet dated 4.8.73 signed by respondent 5 as Commander of 15 BRTF (Annexure-1). Accordingly, the GCM was convened, the petitioner was tried on three charges and the GCM held the petitioner guilty of the aforesaid three charges on 29.8.73 and convicted and sentenced the petitioner to suffer rigorous imprisonment for six months subject to confirmation by the confirming authority (Annexure-2). Against the aforesaid order of conviction and sentence the petitioner submitted a petition under section 164(1) and another petition under section 164 (2) of the Army Act. There was no order on the petition under the former section, but the other petitioner under section 164 (2) was rejected. The petitioner contends that he was charge sheeted and tried by the GCM for abetment of offences stated to have been committed by Pioneer V. N. Menon and the petitioner was convicted by the aforesaid GCM on the basis of the uncorroborated testimony of Sri Menon, who was Canteen in Charge/Salesman of 1642 Pioneer Company. The said V. N. Menon was also tried by a separate GCM for the substantive offence.

(3.) On 1.3.74 the petitioner was released from Officers' Mess after the term of sentence of the GCM was over. However, confirmation of sentence was received only on 6.8.74. After the expiration of the period of the petitioner's sentence he was put back in service with all summary powers as delegated to him by Chief Engineer. During the period of the petitioner's service in GREF after the aforesaid GCM proceedings resulting in conviction and sentence of the petitioner, the petitioner exercised all the powers as the O.C. of his Unit including the summary powers and handled GREF fund amounting to several lakhs of rupees at a time until 26.11.77. when he was served with the impugned order of dismissal dated 8.11.77 (Annexure-7).