EX-MAJOR VIRENDRA SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE instant writ petition has been filed for quashing the impugned orders dated 11.12.1990 (Annex.10) by which the petitioner has been dismissed from service, consequential orders thereto and the order dated 4.7.1991 (Annex.10-A) by which his petition under Sec. 164(2) of the Army Act, 1950 (for short, "the Act") has been rejected by the Central Government.

(2.) THE facts and circumstances giving rise to this case are that petitioner- the then a Captain in the Indian Army was served with a charge-sheet for holding the General Court Martial (for short, "G.C.M.") proceedings on 13.1.1985 on the allegations of taking illegal gratification from two persons as a motive of rendering services to them. Petitioner filed S.B.C. Writ Petition No.88/85 apprehending that the respondent authorities would not provide him the defence nominee. This Court passed interim order directing the respondents to provide the petitioner a defence nominee. THE first trial stood concluded vide order dated 2.8.1985 and petitioner was dismissed from service. Writ Petition No.88/85 was heard by this Court and vide order dated 4.8.1986 it restrained the authorities to confirm the order of dismissal passed on 2.8.85 and ultimately vide order dated 20.7.88 (Annex.1) this court disposed of the said Writ Petition quashing the first trial proceedings including the order dated 2.8.1985 by which the petitioner had been dismissed from service and issued directions to the respondents to accord the petitioner an opportunity to seek assistance of a Lawyer nominated by him and also to cross-examine the witnesses examined by the prosecution and for that purpose the said witnesses would be re-examined. As the order of this Court dated 20.7.88 was not complied with, petitioner approached this court again by filing Contempt Petition No.22.90 which was heard and decided on 27.8.90 issuing directions to the respondents to allow Shri M.L. Shrimalee, Advocate of this court to advise the petitioner at the cost of the Government and to proceed further in accordance with law. Again, in the G.C.M. proceedings, the objection taken by the prosecutor that petitioner would not lead evidence in defence was allowed, vide order dated 1.10.1990, though there were several list of witnesses contained in Annex.4, to 6 whom the petitioner wanted to examine in his defence. After closing the prosecution and defence case, on 5.10.90 one Col. K.S. Kanwal was examined as court witness No.1, who supported the prosecution case. Petitioner made the submission in the closing address of the C.G.M. proceedings that he was not given the opportunity to defend himself. Vide order dated 12.10.90, the punishment of reducing seniority of the petitioner for six years and withholding increment for a period of eight years was passed. however, vide order dated 7.12.90 the sentence was directed to be revised and in pursuance thereof vide order dated 11.12.90 (Annex.10) order of dismissal from service was passed against the petitioner. THE said order of punishment was confirmed vide order dated 7.2.91. Being aggrieved petitioner filed a petition under Sec. 164(2) of the Act before the Central Government which stood rejected vide order dated 4.7.1991 (Annex.10-A). Being aggrieved and dissatisfied petitioner preferred Writ Petition No. 3965/91 before the Allahabad High Court (Lucknow Bench) challenging the order of dismissal his petition under Section 164(2) of the Act vide order dated 4.7.91. THE Allahabad High Court dismissed the Writ Petition vide order dated 6.5.1992 only on the ground that it had no territorial jurisdiction in the matter as neither the cause of action had arisen in its territorial jurisdiction nor any of the respondents was having residence or official address therein. THE opportunity was given to the petitioner to approach the appropriate forum. Hence, this petition.

(3.) SIMILAR view has been reiterated in General Court-Martial & Ors. vs. Col. Aniltej Singh Dhaliwal (2).