CPL GOKUL RAM Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, the petitioner Cpl. Gokul Ram questions the correctness of the order dated Nov. 29, 1982 of the learned single Judge by which his petition under Article 226 of the Constitution was dismissed.

(2.) A few facts leading to this appeal may briefly be noticed : The appellant, who was the petitioner before the learned single Judge will be referred hereinafter as 'the petitioner. ' The petitioner was appointed as Airman Corporal in the Indian Air Force on Jan. 18, 1971 and has been serving as such since then. He was posted at 32. Wing Indian Air Force at Jodhpur and was working as Medical Assistant there since Oct. 8, 1979. It is said that on May 27, 1982 there was a section got together with rum and dinner for S S. Q. Staff and their families to bid farewell to Wing Commander T. S. Murti, the outgoing S. M. O. It is said that in connection with the incident detailed in para 4 of the writ petition relating to Sergeant Sripal. the petitioner was placed under a close arrest on May 28, 1982 by N. W. Ajaiyab Singh and was released on May 29, 1982. Thereafter, the petitioner was charge-sheeted by Thakur Y. Medical Assistant Officer. According to the non-petitionersrespondents on May 27, 1982. the petitioner got. drunk and. deliberately threw Rum from his glass at Sergeant Sripal and as such there was wordy-duel between the two Sergeants and the matter was over then. But subsequently, after the party was over, the petitioner hit Sergeant Sripal with a stick and ran away from the spot and consequently he was put on charge for causing hurt to Sergeant Sripal. The allegation that was levelled by the petitioner against the Sergeant Sripal was enquired by the Court of Enquiry and it arrived at a finding that the allegation made by the petitioner was baseless and the Sergeant Sripal was never involved in the incident of giving slaps to the petitioner. The summary of the evidence was ordered and the Adjutant 32. Wing Air Force informed the petitioner that he was likely to be tried for offences under Sections 40-A and 71 of the Indian Air Force Act (No. XLV of 1950) (for short 'the Act' herein ). Thereafter, the petitioner made representation on June 24. 1982 before the Air Officer Commanding. Indian Air Force 32 Wing giving the details of above harassing tactics. The charge-sheet dated Aug. 20. 1982 was served on the petitioner by the Air Force Commanding 32 Wing Air Force under Sections 66-E and 65 of the Act alleging that on Aug. 17, 1982 the petitioner has accepted the amount of Rs. 1,000/- from one Moduram for the purpose of procuring his enrolment in the Indian Air Force and that he received Rs. 1000/- from Moduram for the purpose of helping him for his enrolment in the Air Force. One of the charge was that on Aug. 17, 1982, the petitioner was found in improper possession of Rs. 2020. 55-P belonging to Moduram when searched by Flight Lt. Babu, A. D. M. Station Security Officer. Investigation into the charges was made and the evidence was produced on behalf of the prosecution. During the investigation, however, according to the petitioner he was informed vide letter Ex. 3 dated Oct 9. 1982 that in connection with the charge-sheet dated Aug. 20, 1982, the petitioner is likely to be tried by a General Court Martial (hereinafter referred to as 'the GCM) and, therefore, he is required to exercise his choice of defence whether he would like to be defended by service defending officer and if so, three names of his choice may be submitted in order of preference so as to arrange their presence as far as possible. The names of the qualified officers who were likely to be available were mentioned in that letter. Another letter (Ex. 4) dated Oct. 29, 1982 was also issued by the Pilot Officer. Station Adjutant to the petitioner in which it was written that in respect of the charge-sheets dated June 3, 1982 and August 20. 1982, the petitioner is likely to be tried by the GCM in the first or second week of Nov. 1982. The petitioner has filed this writ petition on Nov. 6. 1982 praying that the charge-sheet dated June 3, 1982 as well as order Ex. 4 dated Oct. 29, 1982 may be quashed and trial of the petitioner be not conducted by the GCM. A writ of prohibition was also sought against the non-petitioners for restraining them from further proceedings in pursuance of the aforesaid charge-sheets and the directions.

(3.) A show cause notice was issued to the non-petitioners on Nov. 8. 1982. A preliminary reply to the writ petition was filed on behalf of non-petitioners Nos. 1 to 5 contesting the writ petition on various grounds. A rejoinder to the preliminary reply supported by affidavit was filed on behalf of the petitioner. On November 18, 1982 Mr. J. P. Joshi, learned Counsel for the Union of India produced the file and submitted that Air Officer Commanding in C has passed the order on Oct 23. 1982 and this order has been passed after the perusal of the report and notes prepared by the Wing Commander. He claimed the privilege under Section 123 of the Evidence Act about the office notes and showed his readiness to give the copy of the relevant part of the order, which was passed by Mr. Basin, A. D. C. Incharge, on Oct. 23, 1982. The Court also directed the learned Counsel for the Union of India to produce the copy of such extract and to supply it to the learned Counsel for the petitioner. learned Counsel for the Union of India was also directed to submit the order constituting the District Court-Martial which is said to be a separate order which can be submitted in the Curt and can also be supplied to the learned Counsel for the petitioner.