RAJMAL SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was enrolled in the Army Service on 22.8.1960. He was prompted as a subedar on I 1.1982. He .vas enjoying his annual leave in 1988 and when he was recalled from his leave. He reported to the Company Commander on 2.7.1988., According to the petitioner he was taken to another Unit and interrogated up to 20,7.1988 in which period, according to the petitioner, he was tortured. During that period a statement is said to have been taken from the petitioner pursuant to the said torture and the statement is one of confession. The petitioner was due for retirement on 31.8.1988. The Court Martial was convened and it commenced on 30.9.1988. It was concluded on 18.11.1988 and the petitioner filed a pre -confirmation petition on 28.11.1988. However, the Court Materials proceeding was confirmed and he was dismissed from service by order dated 8.2.1989. The order was actually promulgated on 20.3.1989. The petitioner field post -confirmation petition to the Chi f of Army Staff on 1.5.1989, which was rejected on 6.1.1990.

(2.) The petitioner has preferred this writ petition on 21.10.1991. The following contentions are raised by the petitioner. (i) The constitution of the Court Martial was itself improper and in violation of the relevant provisions of the Statutes and the Rules." Under the heading, the first contention of the petitioner is that one of the Members of the Court Martial was substituted when the Court Martial actually commenced the proceedings. Initially the Court Martial Consist of five persons, by name, Ramesh Chandra, Lt. Col Vinod Kumar Bhusari, Maj Yadav Mahabir Singh, Maj Singh. Ram Pukar, and Maj Jai Singh. There were two persons as waiting Members, namely, Lt. Col. Jaggi Madan Lal, and Maj Vasudeva Rao, Krishna Ra,o. When the Court Martial commenced the proceedings it was found that Maj Yadav Mahabir Singh was not available and Maj Vasudeva Rao was substituted in his place. According to the petitioner, that is against the provisions of law and such substitution could not have been, take place at all in law. Consequently, the entire inquiry is vitiated. ii) The second contention is that the Convening Officer did not appoint of the Members of the Court Martial as is evident from the signature 5 found in Annexure P/9 which is this relevant order. According to the petitioner, it has beer signed only by a Colonel on behalf of officiating Commander, 21 Sub Area and that when taken in conjunction f with Annexure P/l which has been singed by Officiating Commander 21 Sub Area will show that the concerned officer did not apply his mind for nominating the Members of the Court Martial. iii) The next contention of the petitioner is that on merits there was absolutely no evidence to prove that the petitioner was guilty of the charge framed against him. It is contended that the only evidence before the Court Martial consisted of two confessional statements which were obtained by torture and in the absence of any other evidence, the conclusion was un -sustainable. iv) The past contention is that even assuming that the order of dismissal is un -assailable the respondents have not given the pension due to the petitioner and they have not passed any order holding that the petitioner is not entitled to get pension. In the circumstances, a mandamus shall be issued to the respondents, directing to pay the pensionary benefits to the petitioner as per law.

(3.) We will now proceed to consider each of the contentions set -out above. But before that one circumstance has to be placed on record to the effect that initially an objection was taken by the respondents about the territorial jurisdiction of this Court on the footing that no part of the cause of action arose within the jurisdiction of this Court. When the matter came up before us on 7.8.1997, we directed the respondents to state clearly whether the trial took place at Kandrori or outside the jurisdiction of this State. An affidavit has been filed on 29.8.1997 by Lt Colonel S.M. Dalai to the effect that the trial took place at Kandrori within the territorial jurisdiction of this Court. Hence, that objection does not survive.