MAJOR D K GOEL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is a Major in the Engineering Corps in the India Army. With effect from 21st September, 1982, he was posted as Garrison Engineer, 873 Engineer Works Section at Akhnoor and remained there till April, 1984. The Unit of the petitioner i.e. 873 Engineer Works was under the Administrative control of Headquarters 135 Works Engineer. As per the Rules, the different Garrison Engineer Units were authorised to receive coal for supply of the same to the Contractors in lieu of the work executed by them for the Armed Forces i.e. in other words instead of paying cash to the contractors, the payment for the works carried out by the Contractors was done by giving coal to them of the equivalent amount. According to the petitioner, the procedure for the supply of the coal was that the Station Headquarters used to receive coal at the Rail-head and then it was handed over to the Unit and thereafter the Unit became accountable for the said coal. Before adverting to further facts, provisions regarding imposing punishment of dismissal/removal from service of an Army Officer may be noticed.

(2.) Normally, if an Army Officer has committed an offence, which may entail the punishment of dismissal/removal, a trial by a General Court Martial (In short G CM.) is held. The findings and the sentence of the G.C.M. is subject to the confirmation by the Confirming Authority under Section 153 of-the Army Act, 1950 (hereinafter called the Act). Section 122 of the Act gives the period of limitation for trial by the G.C.M. Rule 14 of the Army Rules, 1954 (hereinafter called the Rules) gives powers to the Central Government/Chief of the Army Staff to terminate the services of an Army Officer on account of misconduct under certain circumstances, as would be hereinafter adverted to. For ready reference, Sections 19 and 122 of the Act and Rule 14 of the Rules are reproduced below:

(3.) There was one Army Officer by the name of Major Harbhajan Singh. He was alleged to have committed certain offences, but no trial was held by the G.C.M. within a period of three years of the alleged commission of offences. Resort was taken to Rule 14 ibid. Said Harbhajan Singh had in his explanation to the Army Authorities submitted that he had no objection to the trial being held even if period of three years has elapsed. Since this was not acceded to by the Army Authorities, he was dismissed from the Army. Aggrieved by the action of the Army Authorities, he filed a writ petition in the Delhi High Court that he should have been tried by the G.C.M. and resort should not have been taken to Rule 14 of the Rules. That writ petition was allowed by the Delhi High Court and the judgment is Harbhajan Singh vs. Ministry of Defence, Govt of India and others, 1982 2 SLR 782. In the courses of the said judgment, it was observed by the learned Single Judge of that Court that though the period of limitation for trial of the offences by the G.C.M. as mentioned in Section 122 of the Act was three years from the commission of the offence, yet option should be given to the delinquent officer if he is willing to waive off the limitation.