JAGDISH CHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, who was at the material time working as Lower Division Clerk, was put up for trial on May 7, 1976, before the General Court Martial (hereinafter referred to as "the GCM") along with one Des Raj Pathak, who was at the relevant time Commanding Officer-II, for an offence punishable under S.69 of the Army Act, 1950 (hereinafter referred to as "the Act"). The GCM found the petitioner as well as Des Raj Pathak guilty of the offence with which they were charged. The petitioner was sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 5,000/-. So far as Des Raj Pathak is concerned, he was sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 8,000/-. The sentence was announced on June 13, 1976. On October 7, 1976, the 3rd respondent (Chief Engineer, Project Deepak, Shimala) confirmed the proceedings of the GCM. While confirming the proceedings, the 3rd respondent remitted the unexpired period of sentence of rigorous imprisonment. The petitioner accordingly served the sentence of imprisonment from June 13, 1976 to October 8, 1976.

(2.) On October 21, 1976, the 3rd respondent passed an order in exercise of the power conferred by R.19(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as "the Rules") removing the petitioner from service with immediate effect on the ground that the conduct of the petitioner, which led to his conviction, was such as to render his further retention in public service undesirable. The petitioner preferred an appeal against the said order on July 19, 1977. The appeal was considered and rejected and the decision was conveyed to the petitioner under a communication dt. May 3, 1978. Meanwhile, the petitioner had instituted a writ petition (C.W.P. No.38 of 1978) in this Court, challenging the order of removal passed by the 3rd respondent. Three submissions were urged at the hearing of the said petition on behalf of the petitioner; first that in view of the extant instructions the order of removal could not have been passed without affording to the petitioner an opportunity of being heard, secondly, that the petitioner was discriminated against since Des Raj Pathak, was also convicted and sentenced along with the petitioner, was not proceeded against departmentally and, thirdly, that the order of removal was not a speaking order. All the three submissions were rejected by the decision rendered by this Court on August 21, 1978.

(3.) It appears that Des Raj Pathak submitted a petition under S.164(2) of the Act (hereinafter referred to as the post-confirmation petition) on February 3, 1978 praying for annulment of the GCM proceedings and for the consequential relief of setting aside of the order of conviction and sentence passed against him. The post-confirmation petition was accepted by the Government of India by an order dated October 23, 1982. The material portion of the said order reads as under :