RAJKUMAR SARMAH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner initially joined Short Service Commission of Indian Army and was released from the Short Service Commission of Indian Army in May, 1973. After release from short Service Commission of the Indian Army, the petitioner was appointed as Assistant Commandant in the Assam Rifles by notification dated 11.12.73 issued by the Secretary (Home), Arunachal Pradesh Administration, Shillong. On such appointment, the petitioner served as Assistant Commandant of Assam Rifles and thereafter he was promoted to the post of Deputy Commandant of Assam Rifles in the year 1984. On 22.3.85,the petitioner was informed by a notice that an investigation will be conducted against him in respect of alleged lapses on his part and on 23.5.85, 29.7.85, 22.12.85 and 11.1.86 preliminary enquiry was held against him wherein summary evidence was recorded. On completion of summary evidence, the petitioner was served with a charge-sheet dated 28.11.86 issued by the Commandant, 11 Assam Rifles. In the said charge-sheet, six charges were levelled against the petitioner and it was indicated that the charges would be tried by a General Court Martial as the petitioner was subjected to the provisions of Army Act, 1'950 as per notification SRO 318 dated 6.12.62 issued under Section 4(1) of the Army Act, 1950. By the said SRO 318 dated 6.12.62, the Government of India had issued a notification under sub-section (1) of Section 4 of the Army Act, 1950 to the effect that the said Act would apply to every unit of Assam Rifles being a force raised and maintained in India under the authority of the Central Government and that all the provisions of the said Army Act, 1950, except those specified in Part-A of the Schedule to the said notification and subject to the modification set forth in Part-B of the said Schedule, when attached to or acting with any body of the regular army. In the said notification it was further stipulated that the operation of Sections 6, 7, 8 and 9 of the Assam Rifles Act, 1941, shall remain suspended while the said notification remained in force. The General Court Martial was thus held in accordance with the Army Act, 1950 and the Army Rules, 1954 and at the conclusion of the trial the Court held the petitioner guilty of some of the charges and by order dated 29.12.86 the petitioner was imposed with sentence of dismissal from service subject to confirmation. The sentence was thereafter confirmed by the confirming authority on 30.1.88 and on 22.2.88, the Director General of Assam Rifles issued a notification dismissing the petitioner from service with effect from 30.1.88. Aggrieved, the petitioner sent an appeal petition dated 18.4.88 against the findings and sentence of the Court Martial to the Government of India, Ministry of Defence, New Delhi. But by letter dated 16.3.89, the petitioner was informed that the said appeal petition was considered by the Central Government and rejected. The petitioner then moved the Central Administrative Tribunal, Guwahati Bench in OANo. 191/87 for appropriate relief. But by judgment and order dated 16.8.90, the Central Administrative Tribunal, Guwahati Bench, held that the said Tribunal had no jurisdiction to entertain the application and that the records pertaining to the petitioner be delivered to him for presentation before appropriate forum. The petitioner then filed the present writ petition under Article 226 of the Constitution praying for quashing the findings and the sentence imposed by the General Court Martial by order dated 29.12.86 and the order of dismissal dated 22.2.86 as well as appellate order dated 16.3.89 passed by the Government of India, Ministry of Defence, New Delhi. The petitioner has also prayed in the present writ petition that the notification SRO 318 dated 6.12.62 issued under Section 4 of the Army Act, 1950, be struck down as illegal and ultra vires the Constitution. Finally, the petitioner has prayed that the respondents should be directed to reinstate the petitioner with all service benefits.

(2.) At the hearing, Sri R.K. Sarmah, petitioner-in-person, contended that since he was a member of the Assam Rifles and holding a civilian Central Government post, the provisions of the Assam Rifles Act, 1941, the Central Civil Services (Conduct) Rules, 1964 and the Central Civil Services (Classification, Control and Appeal) Rules, 1965, were applicable to him and that the provisions of the Army Act, 1950 and the Army Rules, 1954, were not applicable to him and, therefore, the entire proceedings of General Court Martial against him were without jurisdiction. He further pointed out that under Section 4 of the Army Act, 1950, the Central Government may by notification apply all or any of the provisions of the said Act to the Assam Rifles but such application of the provision of the Army Act, 1950, can only be for a specific and temporary period. In the instant case, the notification SRO 318 dated 6.12.62 was issued by the Central Government under Section 4 of the Army Act, 1950, applying the provisions of the Army Act to the Assam Rifles because of the Chinese aggression in India in 1962. But since the said Chinese aggression was over long since, the said notification can no longer continue to apply to the Assam Rifles to the prejudice of the members of the Assam Rifles. According to the petitioner, the notification SRO 318 dated 6.12.62 was ultra vires the Constitution and Section 4 of the Army Act, 1950.

(3.) In reply to the aforesaid submission, Mr P.N. Choudhury, CGSC, contended relying on the averments made in paragraph-6 of the affidavit-in-opposition of the respondents that the petitioner was a member of the Assam Rifles which is a force raised and maintained by the Central Government and he would have been governed by the Assam Rifles Act, 1941 and not by the provisions of the Army Act, 1950 and the Army Rules, 1954 except when his unit was attached to or acting with a body of the regular Army. But the Central Government by notification SRO 318 dated 6.12.62 under Section 4 of the Army Act, 1950, has applied the provisions of the Army Act to every unit of the Assam Rifles when attached to or acting with any body of the regular Army subject to exception and modification as illustrated in Part-A and Part- B, respectively of the Schedule to the said notification. This has been done to ensure that the unit of the Assam Rifles when attached to the Army is exclusively subjected to the Army Act for the purpose of discipline. By the said notification, the specific provisions of the Assam Rifles Act, 1941 have also been specifically suspended. The said notification has not been cancelled as yet and hence the provisions of the Army Act, 1950 and the Army Rules, 1954 are applicable to the petitioner as his unit of the Assam Rifles has been attached to the Army and the provisions of the Assam Rifles Act, 1941 mentioned in the said notification are not applicable to the petitioner. Mr Choudhury further relied on the contentions made in the said paragraph-6 of the affidavit-in-opposition of the respondents that Section 4 of the Army Act, 1950 does not stipulate that the notification issued thereafter can be issued only for a specific period of time and, therefore, continuity of the said notification SRO 318 dated 6.12.62 till date does not make the notification ultra vires the provisions of Section. 4(1) of the Army Act, 1950.