A K MALLICK Vs. UNION OF INDIA

JUDGEMENT

(1.) These two writ petitions are being disposed of by this common order as the writ petition No. 802 of 1978 is a sequel to the first Writ Petition No. 387 of 1978.

(2.) The petitioner was working as a Civilian Officer Gr. I under the Border Roads Development Board (for short 'the BRDB') in the General Reserve Engineer Force (hereinafter referred to as 'the GREF'). The petitioner was suspended on September 3, 1977 (AB) vide No. 15(4) Vig./BRDB/75 dated August 17, 1977 (Ex. 1). While working as Officer Commanding in 505 Engineer Stores & Supply Company (GREF) situated at Bhutan, an alleged theft of 3000 liters GREF 280 litres of 85 Octara along with 16 Nos. Barrels (200 litres each) was committed on June 24, 1975. A preliminary enquiry into the alleged theft was conducted by the Commander 29 Border Road Task Force and thereafter, the petitioner was served with the charge-sheet on November 22, 1975 by the Commander 29 Border Road Task Force relating to the charge of abetment under S. 66 of the Army Act 1950 (for short 'the Act'). After service of the charge-sheet upon the petitioner, the General Court Martial (for short 'the GCM') was convened by the order of the Chief Engineer, Project Dentak under S. 109 of the Act. The petitioner appeared before the GCM. The petitioner along with the other two subordinate co-accused was prosecuted. After trial, the GCM gave the verdict of 'not guilty' in favour of the petitioner on December 6, 1975 vide Ex. 5. The GCM forwarded this finding of 'not guilty' along with the entire record of the proceedings to the Director General, Border Roads (Respondent No. 2), who was the confirming authority. The Director General did not confirm the verdict and recorded the order 'not confirmed' on August 30, 1976 (Ex. 6). This order was promulgated at the Unit location of 565 Engineers Stores and Company at Bhutan on September 18, 1976 (Ex. 4) by the Commander, 29 Border Roads Task Force. The petitioner also alleged that the petitioner suspended as the disciplinary proceedings were contemplated against him. The petitioner soon thereafter requested the Director General, Border Roads to supply the copies of the proceedings of GCM. The petitioner then submitted an appeal under Rule 23 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as 'the CCA Rules') on January 20, 1978, which was acknowledged by the President's Secretariat, New Delhi vide No.D.662- PI(l)/78 dated February 13, 1978 and the petitioner was intimated that the copy was forwarded to the Secretary to the Government of India, Ministry of Shipping and Transport. The petitioner also made reference to the fact that the second charge-sheet dated March 27, 1978 has been served upon the petitioner on April 18, 1978 on the identical charges. In the first writ petition, the petitioner challenged the order of the Director General, Border Roads dated August 30, 1976 (Ex. 3) on various grounds and he prayed that the said order may be quashed and the respondent No. 2, Director General, Border Roads may be directed to confirm the finding and the verdict dated December 6, 1975 of the GCM.

(3.) In the second writ petition, the petitioner alleged that from the final address of the prosecutor (Ex. 3) and summing up of the Judge Advocate (Ex. 4) it is evident that the charge of abatement and of manipulating or causing manipulation of certain records and of influencing and pressurising certain members of the staff of the unit, were the subject-matter in issue in the proceedings held against the petitioner before the GCM. The GCM after considering the evidence led before it and the written arguments, found the petitioner 'not guilty'. However, the petitioner was served with the charge-sheet containing two Articles of Charge. The petitioner submitted a representation to the President of India on July 7, 1978 for decision on his appeal dated January 30, 1978 (Ex. 5) and further sent a reminder on July 22, 1978 for early disposal of the appeal. On August 11, 1978, the petitioner received memorandum dated August 5, 1978 (Ex. 12) issued by the Deputy Secretary, Ministry of Shipping and Transport, Border Roads Development Board, New Delhi whereby, the petitioner's request for dropping the disciplinary proceedings against the petitioner for his involvement in the alleged theft was rejected. The petitioner received the letter dated July 13, 1978 from the Commissioner for Departmental Enquiries for commencement of the Departmental Enquiry with effect from July 24, 1978. The petitioner again submitted his representation dated September 7, 1978 to the President of India and the copy of the said representation was forwarded to the Commissioner for Departmental Enquiries and further sent a reminder dated September 24, 1978. In the second writ petition, the petitioner challenged the charge-sheet (Ex.8) dated March 10, 1978 on the grounds that the petitioner was prosecuted before the GCM on the same charges, which are the subject-matter of the Departmental Enquiry. The petitioner thus cannot be proceeded against in the departmental enquiry under the CCA Rules and in the petitioner's writ petition No. 370 of 1978, this court held that the disciplinary authority can either proceed under the Army Rules or take proceedings under the CCA Rules. The petitioner prayed for quashing of the charge-sheet and for restraining the respondents from proceedings with the departmental enquiry against the petitioner.