GURNAM SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution has been filed by one Ex-Major Gurnam Singh challenging the legality and validity of the General Court Martial (GCM) proceedings whereby he was sentenced 'to be cashiered' from service which sentence was later commuted to that of 'dismissal from service'.

(2.) THE petitioner was commissioned in the India Army in March 1968. After serving in various capacities in different units, he was posted to 127 Inf Bn. (TA) ECO with effect from May, 1985. While he was posted at Dehradun in the State of Uttar Pradesh he is alleged to have committed the following two offences:- Ist Charge unde r Section 63 of the Army Act (for short, 'the Act) An omission prejudicial to good order and military discipline in that he, at Dehradun, on 03 July 1986 while serving with 127 Inf Bn (TA) Ecological having collected two official files i. e. No. 1209/accts. (closed) and No. 1209/a/current, from No. 4050505 Hav/clk PC Bahuguna of the said Bn (TA) improperly failed to return the same to the custodian. 2nd Charge under Section 47 of the Act : Using criminal force to a person subject to the Act being his subordinate in position, in that he, at Dehradun, on 16 Aug 86 while serving with 127' Inf Bn (TA) ECO used criminal force on TA-40951 Late Maj AS Randhawa of the said Batallian on whom the petitioner threw a chair and gave blows on his face. The petitioner was tried by the GCM which found him guilty of the above two charges. It is common case of the parties that the petitioner was at that time attached to the Jat Regiment Centre Bareilly in the State of Uttar Pradesh and the GCM was held at Meerut also in the State of Uttar Pradesh. The GCM sentenced the petitioner to be cashiered and this sentence was announced in open Court on 16. 6. 1987 which was subject to confirmation. The petitioner submitted a pre-confirmation petition to the confirming officer on July 4, 1987 against the order of the GCM. The Chief of Army Staff who is the confirming officer rejected the same on December 17, 1987 and this order was passed at New Delhi. However, while exercising his powers under section 179 of the Act, the Chief of Army Staff commuted the sentence to that of 'dismissal from service'. The petitioner also submitted a post confirmation petition on September 6, 1988. In pursuance of the Directions issued by this Court, this petition was placed before the Central Government which, on a consideration of the entire matter rejected the same, as according to it, the petition lacked substance. This order was passed at New Delhi on September 18, 1990. After dismissal from service the petitioner came to settle down at Patiala in the State of Punjab. Thereafter the Ministry of Defence, Government of India, New Delhi as per its notice dated October 21, 1988 (Annexure P5 with the writ petition) called upon the petitioner to show cause as to how he was entitled to pension of both the charges and was sentenced to be cashiered by the GCM which sentence was confirmed but commuted to that of dismissal from service. It was at this stage that the present petition was filed challenging not only the show cause notice but also the GCM proceedings on a number of grounds alleging violation of a various mandatory provisions of the Act. Vires of Section 63 of the Act also been challenged.

(3.) IN the written statement filed on behalf of the Union of India, a preliminary objection has been raised challenging the territorial jurisdiction of this Court besides controverting the other allegations. It is submitted that the offences were committed by the petitioner at Dehradun when he was attached to the Jat Regiment Centre, Bareilly and the GCM was held at Meerut. The sentence was also pronounced at Meerut which was subject to confirmation. The pre-confirmation petition was rejected by the Chief Army Staff at New Delhi and the post-confirmation petition was also rejected by the Central Government at Delhi. According to the respondent, no part of the cause of action arose within the jurisdiction of this Court and, therefore, the petition was barred under Article 226 (2) of the Constitution.