Ex Gnr Rajendra Singh vs UOI & Others on 17 April 2026

O R D E R

17.04.2026

1. The Applicant had filed S.B. Civil Writ Petition No 2229/2002 before Hon’ble High Court of Judicature for Rajasthan at Jodhpur under Article 226 & 227 of the Constitution of India and in the matter of Article 14, 16 and 21 of the Constitution of India and Army Act 1950 & Army Rules 1954 against the Order dt 20.12.2000 passed by District Court Martial under Army Act, 1950 which came to be transferred to this Tribunal vide Order dated 05.01.2011 and registered as Transfer Application (TA) No 05/2011. By way of this Writ petition, the Applicant had prayed as under:-

(a) By writ, order or direction of this Hon’ble Court the findings and sentence, passed by the District Court Martial dated 20.12.2000 (Annexure 7), may kindly be quashed and set aside.

(b) By writ, order or direction of this Hon’ble Court, the order dated 15.01.2002 (Annexure 10) passed by the Respondent No 2 (Chief of the Army Staff), in the petition dated 28.04.2001 preferred by the petitioner, may kindly be quashed and set aside.

(c) By an appropriate writ, order or direction, the respondents may kindly be directed to re-instate the petitioner back in the regular service of his trade duties with all consequential benefits.

(d) By an appropriate writ, order or direction the period of imprisonment may kindly be deemed annulled and he may kindly be paid suitable compensation deemed just and proper, for the harassment and mental suffering caused due to the action of the respondents.

(e) By an appropriate writ, order or direction of this Hon’ble Court, the petitioner may kindly be awarded with the suitable cost of the litigation.

(f) Any other order deemed just and proper in the facts and circumstances of the case may also kindly be passed in favour of the petitioner.

2. Brief facts of the case as enunciated by the Applicant are that the Applicant was enrolled in the Army on 28.10.1995 as a Sepoy (Driver MT). During Apr/May 1999, the unit of the Applicant was detailed to participate in War Exercise. Being a Driver by trade, he was detailed for collection of ration from Supply Depot, Bikaner and while returning after collection of ration from Supply Depot on 30.04.1999, as one light of the vehicle was not functional, he could not see the road properly and his vehicle collided with a Camel Cart from backside which resulted in death of his peer soldier, Gnr Satya Narayan Singh and one civilian girl Miss Zahida, for which an FIR was lodged under Sections 279, 337, 304A IPC vide CR No 52/99 and after investigation, the police filed a Challan before Additional Chief Judicial Magistrate, Bikaner. Subsequently, the case was transferred from the Learned Trial Court, Bikaner to the Army authorities to try the Applicant under Army Rules.

Thereafter, the Applicant was falsely charged by the Army Authorities for another incident on 29.09.2000 with two offences of using criminal force to his superior and threatening another senior to kill him with the Sword on the same day.

After recording Summary of Evidence, the Applicant was charged for the four offences under Section 69, 63, 40(a) and 40(b) of Army Act, 1950 and District Court Martial (DCM) was ordered on 25.11.2000 which commenced on 01.12.2000 and completed on 19.12.2000. The Applicant was held “Guilty” by the DCM and was awarded two sentences, ie., (i) to suffer rigorous imprisonment for three months and (ii) to be dismissed from service. After award of the sentence, the Applicant made mitigation plea before the Hon’ble Presiding Officer and members of the DCM on 20.12.2000 to show leniency and award him minimum possible sentence keeping in view the fact that the whole family was dependent on him for their livelihood, but to no avail.

Being aggrieved by the findings and sentence awarded by the DCM, the Applicant preferred an appeal on 28.04.2001 before Hon’ble Chief of the Army Staff (Respondent No-2). However, without appreciating the evidence on record and going into the merits of the case, the appeal was rejected vide Order dt 15.01.2002 (Annexure A/10).

The Applicant submits that despite the fact that one head light of the vehicle was not functional, he was directed to move the vehicle by his superiors which he executed and, hence, he should not have been punished for the unfortunate MT accident. Further, the third and fourth charges levelled against the Applicant were completely concocted and a falsely grafted story. After getting the case transferred from Learned Additional Chief Judicial Magistrate, Bikaner in Nov 1999, the Respondents kept the same pending for nearly one year because they could not find proper evidence to fix the Applicant. Therefore, they made false, fraudulent and concocted story to try and punish him through District Court Martial. Since, it is the settled proposition of criminal jurisprudence that when two different offences of different nature are committed at two different places and at different time, they could not be tried together and there has to be two different cases registered against such accused, how the military authorities travelled the notions of criminal jurisprudence to try the Applicant by a single trial. Further, Section 218 of CrPC states that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. Further, the criminal case registered against the Applicant earlier cannot be clubbed with the other charges under the Army Act, 1950. In support of his contention, the Applicant has placed reliance on Hon’ble Supreme Court judgment in the case of UOI Vs Major SK Sharma, AIR 1987 SC 1878 wherein it was held that “it is not open to the Army authorities to take proceedings for determining prima facie whether there is substance in the allegations made against the accused Army officers and decline to try them by a Court Martial or take other effectual proceedings against them even where a Magistrate has taken cognizance of the offence and has given a finding that there is a case for trying the accused. The Army Authorities are not entitled to ignore the proceedings taken by the Magistrate and to invoke the provisions of Rule 22 and related rules of the Army Rules. The Magistrate having held that there is a case for trying the two accused officers and having directed their appearance, the Army Authorities must proceed to hold a Court Martial or their trial or take other effectual proceedings against them as contemplated by the law. It is also not open to the Army Authorities to hold a Court of Inquiry and supersede the proceedings already taken by the Magistrate.” The Applicant also placed reliance on Hon’ble Supreme Court judgment in the case of Purushottamdas Dalmia Vs State of West Bengal, 1961 Supreme (SC) 193 wherein it was held that the provisions of Section 233 and 239 of CrPC (old) are enabling sections and the legislature rightly, did not use the expression which would have made it incumbent on the Court to try a person of the various offences at one trial or to try various persons for the different offences committed in the course of the same transaction together. To buttress his point, the Applicant has also placed reliance on Hon’ble High Court of Allahabad judgment in the case of Ram Pravesh Yavav Vs State of UP, 2021 Supreme (All) 1227 (DB) and Hon’ble Delhi High Court judgment in the case of Municipal Corporation of Delhi Vs Moti Lal, 1972 Supreme (Del) 128. The Applicant has averred that the due process was not followed by the Respondents while carrying out the District Court Martial and decided the same in a mechanical way without appreciating the evidence on record and, hence, filed the present petition.

3. The Respondents have filed a detailed Reply Statement and have submitted that after the accident of the vehicle with a camel cart and death of a soldier and a civilian girl, a case under IPC 279, 337, 338 and 304A was filed in the Court of Additional Civil Magistrate (1st Class), Bikaner which was later transferred to the Army Authorities in December 1999 and disciplinary action was initiated in accordance with Army Act and Army Rules framed there-under by the Army authorities. Meanwhile, on 29.09.2000, the Applicant was once again involved in a disciplinary case wherein he without any provocation used criminal force on his superior officer, Naik Daulat Singh, by boxing him on his left ear and using abusive and foul language and on the same day, immediately thereafter, he snatched a ceremonial sword from the hands of Hav Satendra Kumar Singh and threatened to kill him with the same sword in the unit lines. The sword was retrieved from the Applicant and the Applicant was placed in military custody on 29.09.2000 at 1130 hours. Thereafter, Summary of Evidence was recorded against him and after following due process and obtaining legal advice, the Applicant was tried by DCM on four charges, viz., (i) First Charge under Army Act Section 69 for committing a civil offence that is to say, causing death by rash or negligent act not amounting to culpable homicide, contrary to Section 304A of the IPC, (ii) Second Charge under Army Act Section 63 for an act prejudicial to good order and military discipline, (iii) Third Charge under Army Act Section 40(a) for using criminal force to his superior officer and (iv) Fourth Charge under Army Act Section 40(b) for using threatening language to his superior officer. The DCM proceedings were completed on 20.12.2000 after following due process under the provisions of Army Act/ Army Rules and based on the statements of witnesses, the evidence available on record and considering the nature of the

offence and the conduct of the Applicant, the Applicant was found “Guilty” on all the four charges and was awarded punishment of three months Rigorous Imprisonment and dismissal from service. The DCM proceedings were confirmed on 22.01.2001 by Brigade Commander, the Confirming Authority and the sentence was promulgated on 25.01.2001. The Respondents have submitted that under Article 227(4) of the Constitution of India, Court Martial proceedings are not subject to review by this Hon’ble Court. The vehicle driven by the Applicant was tested to be road worthy and had no mechanical problems. Even if a problem/defect had developed enroute, the Applicant was not forced by anyone to drive a defective vehicle as he did not inform the same to any of his superiors/colleagues and due to rash and negligent driving on part of the Applicant, two innocent lives were lost and he cannot shed his responsibility for the same. The Applicant has not been tried on a fabricated charge rather he has been tried on a charge-sheet containing charges which emerged out of proper investigations and based on reliable evidence. The defence counsel detailed during the DCM proceedings was the choice of the Applicant himself. Further, both during the Summary of Evidence and DCM proceedings, the Applicant was given full opportunity to call any defence witness and to call and engage any civilian counsel and on the specific question for examination any witness by the Applicant in his defence, he replied “No”. The Applicant was in military custody for 90 days which was accounted for against the award of three months of Rigorous Imprisonment given by the DCM. As regarding clubbing of charges in single charge sheet, the Respondents have submitted that it was in the interest of the Applicant to undergo one trial and avoid multiplicity of trials. Moreover, the Applicant did not object to the charge-sheet at the trial and this issue cannot be raised in the writ petition at a later stage. Further, petition filed by the Applicant was rejected by the Chief of Army Staff on 11.01.2002 (Annexure /10) after considering the facts available on record and due application of mind. In view of the aforesaid averments, the Respondents have reiterated that the petition is devoid of merit and deserves to be dismissed.

4. During the course of arguments, the Counsel for the Applicant vehemently argued that the clubbing of charges in respect of different offences on different occasions was not legally valid and the DCM is liable to be quashed on this ground. In its support, he relied on Hon’ble Supreme Court/ High Court judgments in the cases of Purushottamdas Dalmia Vs State of West Bengal (Supra), Ram Pravesh Yadav Vs State of UP (Supra) and Municipal Corporation of Delhi Vs Moti Lal (Supra). Moreover, it was argued by him that the Army Authorities should not have resorted to obtain Summary of Evidence in respect of his first two charges as the Challan in respect of these offences had already been filed in the Court of ACJM, Bikaner.

5. However, Learned Counsel for the Respondents placed reliance on Hon’ble Supreme Court judgment dt 02.04.2013 in Civil Appeal No 4465/2005 in the case of UOI & Ors Vs Ex Gnr Ajeet Singh and contended that at the time of trial, the Applicant did not raise any objection to try the Applicant for all the charges together when the GCM proceedings were in progress. Regulation 51 of Army Rules, 1954 provides that the accused must raise the objection in respect of jurisdiction at an early stage of the commencement of proceedings. Regulation 79 of Army Rules, 1954 provides that where a charge sheet contains more than one charge, the accused may, before pleading, claim to be tried separately in respect of any charge or charges on the grounds that he will be embarrassed in his defence if he is not tried separately. Further, Regulation 65 of Army Rules, 1954 provides that the court shall award a single sentence in respect of all the offences of which the accused is found guilty, and such sentence shall be deemed to be awarded in respect of the offences in each charge in respect of which it can be legally given and not to be awarded in respect of any offence in a charge in respect of which it cannot be legally given. Had he raised this objection at the time of commencement of GCM proceedings, he could have been tried separately and could have been given more punishments as compared to one sentences for all the four charges. However, the Applicant is governed by the Army Act and Army Rules and not by the provisions of Code of Criminal Procedure (CrPC) and the CrPC basically deals with the procedural matters to ensure compliance of the principles of natural justice, etc. Therefore, the principles enshrined therein may provide guidelines with respect of the misjoinder of charges and a joint trial for various distinct charges/offences as there are similar provisions in the Army Rules. Further, Section 464 CrPC provides that a finding or sentence would not be invalid merely because there has been an omission or error in framing the charges or misjoinder of charges, unless a failure of justice has been occasioned. In view of the aforesaid averments, the Respondents have reiterated that during the DCM proceedings all the due process of law was followed and the Applicant was awarded punishment by the DCM under the provisions of Army Act/Army Rules. The petition is devoid of merit and deserves to be dismissed.

6. After hearing the arguments of both the Counsels at length and seeking permission of this Bench, Learned Counsel for the Applicant submitted additional submissions which are taken on record.

7. We have heard the counsel for the parties and perused the material placed on record.

8. Relevant paragraphs of Army Rules, 1954, which are applicable in the present petition reads as under:-

“22. Hearing of charge.

Every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence; Provided that where the charge against the accused arises as a result of investigation by a court of inquiry, wherein the provisions of rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in sub-rule (1).

The commanding officer shall dismiss a charge brought before him, if, in his opinion, the evidence does not show that an offence under the Act has been committed, and may do so if he is satisfied that the charge ought not to be proceeded with:

Provided that the commanding officer shall not dismiss a charge which he is debarred to try under sub-section (2) of section 120 without reference to superior authority as specified therein.

After compliance of sub-rule (1), if the commanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time- (a) dispose of the case under section 80 in accordance with the manner and form in Appendix III ; or (b) refer the case to the proper superior military authority; or

(c) adjourn the case for the purpose of having the evidence reduced to writing; or (d) if the accused is below the rank of warrant officer, order his trial by summary court-martial:

Provided that the commanding officer shall not order trial by a summary court- martial without a reference to the officer empowered to convene a district court-martial or on active service a summary general court-martial for the trial of the alleged offender unless –

(a) the offence is one which he can try by a summary court-martial without any reference to that officer; or (b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline.

Where the evidence taken in accordance with sub-rule (3) of this rule discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge(s) on the basis of the evidence so taken as well as the investigation of the original charge.

Explanation : Where an officer, other than the commanding officer, proposes to proceed against an accused under Sec 80 of the Act, the provisions of sub-rules (1) to

(3) of this rule shall, in so far as they are applicable, may be complied with by such officer. (SRO No 258 dt 27 Nov 2002).

51. Special plea to the jurisdiction.

The accused, before pleading to a charge, may offer a special plea to the general jurisdiction of the court, and if he does so, and the court consider that anything stated in such plea shows that the court has no jurisdiction it shall receive any evidence offered in support, together with any evidence officered by the prosecutor in disproof or qualification thereof, and any address by or on behalf of the accused and reply by the prosecutor in reference thereto.

If the court overrules the special plea, it shall proceed with the trial.

If the court allows the special plea, it shall record its decision and the reasons for it, and report it to the convening authority and adjourn; such decision shall not require any confirmation, and the convening authority shall either forthwith convene another court for the trial of the accused, or order the accused to be released.

If the court is in doubt as to the validity of the plea, it may refer the matter to the convening authority, and may adjourn for that purpose or may record a special decision with respect to such plea, and proceed with the trial.

65. Sentence. The court shall award a single sentence in respect of all the offences of which the accused is found guilty, and such sentence shall be deemed to be awarded in respect of the offence in each charge in respect of which it can be legally given and not to be awarded in respect of any offence in a charge in respect of which it cannot be legally given.

72. Mitigation of sentence on partial confirmation.

Where a sentence has been awarded by a court-martial in respect of offences in several charges, and the confirming authority confirms the finding on some but not on all such charges, the authority shall take into consideration the fact of such non- confirmation, and shall, if it seems just mitigate, remit, or commute the punishment awarded according as it seems just, having regard to the offences in the charges in respect of the findings which are confirmed.

Where a sentence has been awarded by a court-martial in respect of offences in several charges and has been confirmed and any one of such charges or the finding thereon is found to be invalid, the authority having poser to mitigate, remit, or commute the punishment awarded by the sentence shall take into consideration the fact of such invalidity, and if it seems just, mitigate, remit or commute the punishment awarded according as it seems just, having regard to the offences in the charges which with the findings thereon are not invalid, and the punishment as so modified shall be as valid as if it had been originally awarded only in respect of those offences.

79. Separate charge-sheets.

The convening officer may direct any charges against an accused person to be inserted in different charge-sheets, and when he so directs, the accused shall be arraigned and until after the finding tried, upon each charge-sheet separately, and the procedure in rules 48 to 62, both inclusive, shall, until after finding, be followed in respect of each charge-sheet, as if it contained the whole of the charges against the accused.

The trials upon the several charge-sheets shall be in such order as the convening officer directs.

When the court have tried the accused upon all the charge-sheets they shall, in the case of the finding being “Not guilty” on all the charges, proceed as directed by rule 63, and in case of the finding on any one or more of the charges being “Guilty” proceed as directed by rules 54 and 64 to 67, both inclusive, in like manner in each case as if all the charges in the different charge-sheets had been contained in one charge-sheet, and the sentence passed shall be of the same effect as if all the charges had been contained in one charge-sheet.

If the convening officer directs that, in the event of the conviction of an accused person upon a charge in any charge-sheet, he need not be tried upon the subsequent charge-sheets the court in such event may, without trying the accused upon any of the subsequent charge-sheets proceed as provided in sub-rule (3).

Where a charge-sheet contains more than one charge, the accused may, before pleading, claim to be tried separately in respect of any charge or charges in that charge-sheet, on the ground that he will be embarrassed in his defence if he is not so tried separately; and in such case the court, unless they think his claim unreasonable, shall arraign and try the accused in like manner as if the convening officer had inserted the said charge or charges in different charge-sheets.

If a plea of “Guilty”, to any charge in a charge-sheet has been recorded as the finding of the court, the provisions of sub-rule (3) and (4) of rule 54 shall not be complied with until after the court had arrived at its finding on all the charge-sheets.”

9. On the issue of clubbing of multiple charges under a single charge-sheet, relevant paragraphs of Hon’ble Supreme Court judgment in the case of Ex Gnr Ajeet Singh (Supra) read as under:- “13. Though the case is labeled as a civil appeal, in fact it is purely a criminal case. GCM is a substitute of a criminal trial. Thus, the case ought to have been examined by the High Court keeping in mind, the principles/ law applicable in a criminal trial. The respondent is governed by the Army Act and Army Rules, and not by the provisions of Code of Criminal Procedure, 1973 (hereinafter referred to as the (Cr.P.C.). However, Cr.P.C. basically deals with procedural matters to ensure compliance of the principles of natural justice etc. Thus, the principles enshrined therein may provide guidelines with respect to the misjoinder of charges and a joint trial for various distinct charges/offences as there are similar provisions in the Army Rules. Section 464 Cr.P.C., provides that a finding or sentence would not be invalid merely because there has been an omission or error in framing the charges or misjoinder of charges, unless a “failure of justice” has in fact been occasioned.

14. In Birichh Bhuian & Ors. v. State of Bihar, AIR 1963 SC 1120, this Court has held, that a case of misjoinder of charges is merely an irregularity which can be cured, and that the same is not an illegality which would render the proceedings void. The court should not interfere with the sentence or conviction passed by a court of competent jurisdiction on such grounds, unless the same has occasioned a failure of justice, and the person aggrieved satisfies the court that his cause has in fact been prejudiced in some way. A similar view has also been reiterated in Kamalanantha & Ors. v. State of T.N., AIR 2005 SC 2132; and State of U.P. v. Paras Nath Singh, (2009) 6 SCC 372.

20. So far as the failure of justice is concerned, this Court in Darbara Singh v. State of Punjab, AIR 2013 SC 840, held that:

“Failure of justice” is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be “failure of justice”; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be overemphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under the Indian criminal jurisprudence. “Prejudice” is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under criminal jurisprudence, then the accused can seek benefit under the orders of the court.”

22. The expression “failure of justice” would appear, sometimes, as an etymological chameleon. The Court has to examine whether there is really a failure of justice or whether it is only a camouflage. Justice is a virtue which transcends all barriers. Neither the rules of procedure, not technicalities of law can stand in its way. Even the law bends before justice. The order of the court should not be prejudicial to anyone. Justice means justice between both the parties. The interests of justice equally demand that the “guilty should be punished” and that technicalities and irregularities, which do not occasion the “failure of justice”; are not allowed to defeat the ends of justice. They cannot be perverted to achieve the very opposite end as this would be counter- productive. “Courts exist to dispense justice, not to dispense with justice. And, the justice to be dispensed, is not palm-tree justice or idiosyncratic justice”. Law is not an escape route for law breakers. If this is allowed, this may lead to greater injustice than upholding the rule of law. The guilty man, therefore, should be punished, and in case substantial justice has been done, it should not be defeated when pitted against technicalities.

27. The respondent could have asked for a separate trial of different charges as provided under Rule 79. However, in that case the punishment would have been much more severe, as all the sentences could not run concurrently. In fact, the respondent has benefited from the joint trial of all the charges and thus, by no means can he claim that his cause stood prejudiced by resorting to such a course. The High Court ought to have taken a cue from Rule 72 of the Army Rules for the purpose of deciding the case, as the same provides for mitigation of sentence in the event that a charge or finding thereon is found to be invalid, as the respondent could not have been tried by a GCM for the offences that had been committed by him as a juvenile, keeping in view the provisions of Rule 65 thereof.

Thus, considering the nature of service of the respondent, the gravity of offences committed by him after attaining the age of 18 years and the totality of the circumstances, we are of the considered opinion that grant of relief to the respondent, even on the principles of “justice, equity, and good conscience”; was not permissible.

28. In view of the above, the appeal succeeds, and is allowed. The judgment and order passed by the High Court impugned herein, is set aside and the order of conviction recorded by the GCM is restored. However, in light of the facts and circumstances of the case, the sentence imposed by the GCM is reduced to five years. There shall be no order as to costs.”

10. On the issue of judicial review, the Hon’ble Supreme Court in its judgment dt 21.09.2021 (Para 23) in Civil Appeal No 5848/2021 in the case of UOI & Ors Vs Dalbir Singh held as under:- “23. In another Judgment reported as B.C Chaturvedi v. UOI & Ors, (1995) 6 SCC 749, it was held that the power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. The Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The Court is to examine as to whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. This Court held as under:- “12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In UOI Vs H.C. Goel [(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38], this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.”

11. In the case State Bank of Patiala & Ors Vs S.K. Sharma, (1996) 3 SCC 364, the Hon’ble Apex Court summarized the legal position relating to violation of procedural provisions in the disciplinary proceedings and orders of punishments as under:- “We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):

An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.

A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/ employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudicate, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/ government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) here-in-below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(4) (a) In the case of a procedural provision which is not of a mandatory characters the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it mays the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) In the case of violation of a procedural provision which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirements either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/ employee has not it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunkar, (1993) 4 SCC 727. The ultimate test is always the same viz., test of prejudice or the test of fair hearing, as it may be called.

Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between “no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing"/"no fair hearing".

(a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem).

(b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/ employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle [No.5] does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)

While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/ Tribunal/ Authority must always bear in mind the ultimate and over- riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/ State interest with the requirement of natural justice and arrive at an appropriate decision.”

12. In the present case, initially an FIR was lodged against the Applicant for death of a civilian girl and the case was filed before the Court of Additional Civil Magistrate (1st Class), Bikaner under IPC 279, 337 and 304A, which was transferred to Army Authorities in the month of December 1999 to initiate disciplinary action against the Applicant in accordance with Army Act/Army Rules, which was under process. In the meantime, on 29.09.2000, the Applicant was once again involved in a disciplinary case wherein he without any provocation used criminal force on his superior officer, Naik Daulat Singh, by punching him on his left ear and using abusive and foul language and on the same day,

immediately thereafter, he snatched a ceremonial sword from the hands of Hav Satendra Kumar Singh and threatened to kill him with the sword in the unit lines. Thereafter, Summary of Evidence was recorded against him and after following due process and obtaining legal advice, the Applicant was tried by DCM on four charges, viz., (i) First Charge under Army Act Section 69 for committing a civil offence that is to say, causing death by rash or negligent act not amounting to culpable homicide, contrary to Section 304A of the IPC, (ii) Second Charge under Army Act Section 63 for an act prejudicial to good order and military discipline, (iii) Third Charge under Army Act Section 40(a) for using criminal force to his superior officer and (iv) Fourth Charge under Army Act Section 40(b) for using threatening language to his superior officer. The DCM proceedings were completed on 20.12.2000 after following due process under the provisions of Army Act/ Army Rules and based on the statements of witnesses, the evidence available on record and considering the nature of the offence and the conduct of the Applicant, the Applicant was found “Guilty” on all the four charges and was awarded punishment of (i) three months Rigorous Imprisonment and

(ii) dismissal from service. The DCM proceedings were confirmed on 22.01.2001 by Brigade Commander, the Confirming Authority and the sentence was promulgated on 25.01.2001. The Appeal preferred by the Applicant before the Chief of the Army Staff was also rejected vide Order dt 15.01.2002 after taking into considerations of the facts presented by the Applicant in his Appeal and based on the documentary evidence in Court Martial Proceedings.

13. As regards the contention of the Applicant that the criminal charges registered under IPC and the charges under Army Act, 1950 cannot be clubbed together and the Applicant should have been tried separately for these charges, it is worth mentioning that Rule 79 of Army Rules, 1954 clearly provides that where a charge sheet contains more than one charge, the accused may, before pleading, claim to be tried separately in respect of any charge or charges in that charge-sheet on the grounds that he will be embarrassed in his defence if he is not tried separately. However, in the present case, the Applicant raised no objection at the time of trial against his trial under a single-charge sheet. Had he raised his objection at the time of trial, his prayer could have been considered and he could have been tried separately for the different charges. The Applicant was given full liberty to cross-examine and due process of law was followed by the Court. Further, Rule 65 of Army Rules, 1954 provides that the Court shall award a single sentence in respect of all the offences of which the accused is found guilty and such sentence shall be deemed to be awarded in respect of the offences in each charge in respect of which it can be legally given and not to be awarded in respect of any offence in a charge in respect of which it cannot be legally given. For any offence committed under Army Act Section 40(a) and (b), the maximum punishment is 14 years, and under Army Act Sections 63 and 69, the maximum punishment is 7 years each. However, in the present case, the Applicant was awarded only three months Rigorous Imprisonment and dismissal from Service for all the offences, which shows that the Court took lenient view while awarding the sentence to the Applicant for such grave offences and misconduct on part of the Applicant.

14. As regards the plea of the Applicant that after transfer of the case from ACJM, Bikaner in Nov 1999, the Respondents could not find any evidence against the Applicant and, hence, delayed the trial and that the trial should have been conducted expeditiously, Para 22(3) of Army Rules, 1954 provides that if the commanding officer is of the opinion that the charge ought to be proceeded with, he shall take action within a reasonable time, however, no time limit has been fixed under these Regulations. Therefore, the contention of the Applicant that his trial was delayed for want of evidence holds no water. Further, the plea of the Applicant that after taking over the case from the Additional Chief Judicial Magistrate, Bikaner, the Army Authorities should not have conducted Summary of Evidence and should have proceeded directly based on the Challan filed in the Court of ACJM, Bikaner, it has been seen that the findings of the Army Authorities and the ACJM, Bikaner had no contradictions and the Applicant was rightly dealt with in a single charge sheet for the multiple offences as per the provisions contained in Rule 79 of the Army Rules, 1954 and the Applicant also raised no objection at the trial. Moreover, the Applicant was governed by the Army Act/ Army Rules and not by the provisions of Code of Criminal Procedure, 1973, therefore, he was rightly tried under the provisions of Army Act/Rules and no injustice has been done to the Applicant. Thus it does not appear that misjoinder of charges as alleged occasioned as failure of justice. Section 125 of Army Act, 1950 provides that when a Criminal Court and a Court- Martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the Army, Army Corps, Division or Independent Brigade in which the accused person is serving or such other officer as may be prescribed to decide before which Court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a Court-Martial, to direct that the accused person shall be detained in military custody.

15. Moreover, Hon’ble Supreme Court in the case of Ex Gnr Ajeet Singh (Supra) has held that an accused can be dealt with in a single charge-sheet for multiple charges that took place on different dates and places unless an accused raises objection at the time of trial. In the present case, the Applicant did not raise any objection to try him on different charges separately. In fact, this plea of the Applicant in this petition is an afterthought and does not help him at this stage as this objection was not raised at the time of his trial. Further, Hon’ble Supreme Court in the cases of UOI & Ors Vs Dalbir Singh (Supra) and State Bank of Patiala & Ors Vs SK Sharma (Supra) held that the Court/Tribunal in its power of judicial review does not act as an appellate authority to re-appreciate the evidence and to arrive at its own independent findings based on the evidence at the trial. Procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/ employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In the present case, the Applicant was afforded full opportunity of defending himself and calling of witnesses in his defence and cross-examination of the prosecution witnesses and all the due procedures were followed.

16. In the case of Union of India Vs RK Sharma, (2001) 9 SCC 592 Hon’ble Apex Court held that in exercise of powers of judicial review interfering with the punishment of dismissal on the ground that it was disproportionate, the punishment should not be merely disproportionate but should be strikingly disproportionate. As observed and held that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Article 226 or 227 or under Article 32 of the Constitution. Applying the law laid down by Hon’ble Apex Court in the aforesaid decision to the facts of the case on hand, it cannot be said that the punishment of three months Rigorous Imprisonment and dismissal from service can be said to be strikingly disproportionate warranting our interference.

17. Taking note of gravity of the offence under Army Act Section 69 for committing a civil offence for causing death by rash or negligent act not amounting to culpable homicide, contrary to Section 304A of the IPC, Army Act Section 63 for an act prejudicial to good order and military discipline and Army Act Sections 40 (a) & (b) for using criminal force to his superior officer and using threatening language to his superior officer, we are of the opinion that the punishment awarded to the accused by District Court Martial is justified and legally sustainable. In view of the above, there is no scope of interference in the findings of the District Court Martial proceedings in finding him “Guilty” as recorded by the Competent Authority and awarding sentence of 3 months Rigorous Imprisonment and dismissal of the Applicant from Military Service.

18. The TA is clear exercise in floccinaucinihilipilification, and hence, is dismissed. Pending Miscellaneous Application(s), if any, also stand disposed off.

19. No order on costs.

(SANJIV MITTAL)

(GOVERDHAN BARDHAR) MEMBER (A)

MEMBER (J)

Ssy/-