SANJAY MARUTIRAO PATIL versus UNION OF INDIA AND OTHERS on 24 January 2020

SANJAY MARUTIRAO PATIL

v.

UNION OF INDIA AND OTHERS

(Civil Appeal No. 2448 of 2010)

JANUARY 24, 2020

[L. NAGESWARA RAO AND M. R. SHAH, JJ.]

Army Act, 1950 – s. 63 – Army Rules, 1954 – r. 17 –Termination from service – The appellant was charged u/s. 63 ofthe Act – Appellant pleaded guilty – The Summary Court Martialawarded the appellant with the punishment of reduction in rank –Thereafter, appellant was served with a show cause as to why heshould not be discharged from Army Service under the provisionsof s. 20 of the Army Act r/w. r. 17 of the Army Rules, 1954 – Appellantdenied the allegations made therein – Consequent to which, Courtof Inquiry was held and appellant was terminated – Aggrieved, theappellant filed appeal, which was dismissed – Appellant filed a writpetition before the High Court and the same was also dismissed –Before the Supreme Court, the appellant contended that he waspunished twice by the respondents for the same offence, once theSummary Court Martial awarded the punishment, thereafter todismiss the appellant u/s. 20 of the Army Act r/w. r. 17 of the ArmyRules would be double jeopardy, which is not permissible – Held:There is nothing on record that the order passed by the SummaryCourt Martial by which the appellant was reduced in rank waseven confirmed by the chief of the Army Staff in exercise of powersu/s. 164 of the Army Act – Therefore, in the facts and circumstancesof the case, the respondent no. 3 was justified in exercising thepower u/s.20 r/w r. 17 – The only procedure which is required to befollowed u/r. 17 of the Army Rules was, a person who is sought tobe dismissed or removed from service was informed of the particularsof the cause of action against him and allowed reasonable time tostate in writing any reasons he may have to urge against his dismissalor removal from service – In the present case, such an opportunitywas given to the appellant, therefore, proper procedure was followedbefore dismissing the appellant from service – Insofar as doublejeopardy is concerned, it is required to be noted that earlier the

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Aappellant was tried by the Summary Court u/s. 63 of the Army Actonly – However, the particulars of charges disclosed that offenceswere fraudulent in nature – Thereafter, after giving an opportunityto the appellant as required u/r. 17, the order of dismissal was passedu/s. 20 of the Army Act r/w. r. 17 of the Rules and the said order wasconfirmed by the Chief of the Army Staff u/s. 164 of the Act –BTherefore, the order of dismissal passed u/s. 20 and confirmationby the Chief of the Army cannot be said to be violative of theprinciple of double jeopardy.

Dismissing the appeal, the Court

Dismissing the appeal, the Court

CHELD: 1. From the facts emerging from the record, itappears that earlier the appellant was subjected to Summary CourtMartial. However, it is required to be noted that at the relevanttime, the aforesaid lapses/charges were not considered to befraudulent in nature and the appellant was tried by Summary CourtMartial for the said lapses/charges under Section 63 of the ArmyDAct, 1950. Thereafter, the appellant was inflicted with the penaltyof reduction in rank. Nothing is on record that the order passedby the Summary Court Martial by which the appellant was reducedin rank was even confirmed by the Chief of the Army Staff inexercise of powers under Section 164 of the Army Act. Therefore,Eit cannot be said that the order passed by the Summary CourtMartial by which the appellant was inflicted with the penalty ofreduction in rank attained finality on being confirmed by thecompetent authority (in the present case the Chief of the ArmyStaff). Therefore, considering the observations made by this Courtin paragraphs 24 to 27(more particularly, paragraph 27) in theFcase of Harjeet Singh Sandhu, it was open for the competentauthority to exercise powers under Section 20 of the Army Actread with Rule 17 of the Army Rules, 1954. The power vestedwith the Chief of the Army Staff and conferred under Section 20of the Army Act is an independent power available and for whichGthe procedure under Rule 17 of the Army Rules is required to befollowed, however, subject to the restrictions as observed by thisCourt in paragraph 27 in the case of Harjeet Singh Sandhu.Meaning thereby that only in a case where the final verdict ofguilty or not guilty pronounced by a Court Martial has beenconfirmed by the competent authority and has attained finality,H

the power to proceed under Section 19 read with Rule 14 orSection 20 read with Rule 17 shall not be available to be exercised.In other words, so long as a final verdict of guilty or not guiltypronounced by a Court Martial and confirmed by the competentauthority as to be effective is not available, the power to proceedunder Section 19 read with Rule 14 or Section 20 read with Rule17, as the case may be, exists and remains available to beexercised. Therefore, in the facts and circumstances of the caseand in the absence of any confirmation of the order passed by theSummary Court Martial by which he appellant was reduced torank, the respondent no.3 herein was justified in exercising thepower under Section 20 read with Rule 17. At this stage, it isrequired to be noted that while exercising the power underSection 20 of the Army Act, the only procedure which is requiredto be followed would be under rule 17 of the Army Rules, namely,a person who is sought to be dismissed or removed from servicehas been informed of the particulars of the cause of action againsthim and allowed reasonable time to state in writing any reasonshe may have to urge against his dismissal or removal from theservice. In the present case, such an opportunity has been givento the appellant and therefore the proper procedure has beenfollowed before dismissing the appellant from service, in exerciseof powers under Section 20 of the Army Act. [Para 7][344-F; 345-B-H; 346-A-B]

2. Now so far as the submission on behalf of the appellantthat the order of dismissal passed under Section 20 of the ArmyAct would be violative of the principle of double jeopardy isconcerned, for the reasons stated above, the same cannot beaccepted. There is one another reason also why the order ofdismissal under Section 20 of the Army Act cannot be said to beviolative of the principle of double jeopardy. It is required to benoted that when earlier the appellant was treated by the SummaryCourt Martial, he was tried for the offences under Section 63 ofthe Army Act only. However, subsequently the Chief of the ArmyStaff was of the opinion that the particulars of charges for whichearlier the appellant was tried by the Summary Court Martialand which were tried under Section 63 of the Army Act disclosethat the offences were fraudulent in nature. Therefore, whiletreating and considering the offences as fraudulent in nature and AB

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Athereafter after giving an opportunity to the appellant as requiredunder Rule 17 and thereafter having been satisfied that theappellant cannot be continued in service, the order of dismissalhas been passed by respondent no.3 herein in exercise of powersunder Section 20 of the Army Act read with Rule 17 of the ArmyRules and the said order of dismissal has been confirmed by theBChief of the Army Staff while exercising the powers under Section164 of the Army Act on a petition filed by the appellant. Therefore,in the facts and circumstances of the case, the order of dismissalpassed under Section 20 of the Army Act and confirmed by theChief of the Army Staff cannot be said to be violative of theCprinciple of double jeopardy. [Para 8][346-C-G]Union of India and Others v. Harjeet Singh Sandhu (2001) 5SCC 593 : [2001] 2 SCR 1127 - relied on.

State of Madhya Pradesh v. Hazari Lal (2008) 3 SCC 273 :[2008] 2 SCR 787; Chief of Army Staff v. Major Dharam PalDKukrety (1985) 2 SCC 412 : [1985] 3 SCR 415 – referredto.

FFrom the Judgment and Order dated 31.01.2008 of the High Courtof Judicature at Bombay in Writ Petition No. 423 of 2005.

Braj K. Mishra, Makarand D. Adkar, Vijay Kumar, MustafaA. Khan, Ms. Kriti Sodhi, Vishwajit Singh, Advs. for the Appellant.

Ms. Sonia Mathur, Sr. Adv., Ms. Niranjana Singh, Arvind KumarGSharma, Anmol Chandan, Sridhar Potaraju, Ms. Shiwani Tushir,G. Ushasri, B. Krishna Prasad, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 31.01.2008 passed by the High Court of Judicature atBombay in Writ Petition No. 423 of 2005,by which the High Court hasdismissed the said writ petition preferred by the appellant herein and hasrefused to interfere with the order of dismissal passed by the respondentdated 29.04.2002, the original writ petitioner has preferred the presentappeal.

2. The facts leading to the present appeal in nutshell are as under:

That the appellant herein – original writ petitioner (hereinafterreferred to as the ‘Appellant’) joined the Indian Army as a Sepoy on30.08.1990. In the year 1994-95, he was promoted as Naik. Thereafter,he became qualified for promotion to the post of Hawaldar. He wasserved with a charge sheet dated 3.8.1999 levelling three charges ofmisconduct. That the three charges were framed against the appellantunder Section 63 of the Army Act, 1950 (hereinafter referred to as the‘Army Act’). With respect to the above charge sheet, the appellant wascalled upon to face a Summary Court Martial. The appellant pleadedguilty to each of the charges in writing. After considering his defence,the Summary Court Martial proceedings were completed/concluded andthe appellant was awarded with the punishment of reduction in rank,vide order dated 7.8.1999. That thereafter the appellant was servedwith a show cause notice dated 24.3.2000, by which the appellant wascalled upon to show cause as to why he should not be discharged fromArmy service under the provisions of Section 20 of the Army Act, readwith Rule 17 of the Army Rules, 1954 (hereinafter referred to as the‘Army Rules’). That the appellant replied to the said show cause noticeon 10.4.2000. He denied the allegations made therein. According to thedepartment, though the appellant pleaded guilty to the three charges, hedenied those charges in the reply to the show cause notice dated 24.3.2000and therefore the same were fraudulent in nature. According to thedepartment, upon such denial, a Court of Inquiry came to be held inJanuary, 2001 to ascertain the facts revealed by the appellant in thenotice. According to the department, thereafter again meeting of theCourt of Inquiry was held. The appellant appeared as a witness. Hewas examined. The Court of Inquiry put to him such questions as it A

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Athought desirable for testing the truth or accuracy of the statement madeby him in his reply and for eliciting the truth. According to the department,the report of the Court of Inquiry was submitted to the authority concerned.According to the department, the Court of Inquiry gave the finding thatthe appellant has given false and misleading reply in his say as well as inhis evidence before the Court of Inquiry. According to the department,Bthe appellant was, therefore, issued a show cause notice on 17.4.2001 toshow cause as to why he should not be discharged from the Army underRule 13(3) item III(V) as his services were no longer required, beingundesirable. That the appellant filed his reply to the said show causenotice on 14.6.2001. That thereafter the respondents terminated theCappellant’s services on 29.4.2002, in exercise of the powers under Section20 of the Army Act, read with Rule 17 of the Army Rules.

2.1 Feeling aggrieved and dissatisfied with the order of terminationdated 29.4.2002, the appellant preferred an appeal, which cameto be rejected on 22.12.2003. That thereafter the appellantDapproached the High Court by way of present writ petitionchallenging the order of dismissal of the appellant as well as theorder dismissing the appeal.

2.2 Before the High Court, it was the case on behalf of theappellant that once the appellant faced the Summary Court MartialEand the appellant was awarded the punishment of reduction inrank, thereafter for the same charges, the appellant could nothave been dismissed from service in exercise of powers underSection 20 of the Army Act, read with Rule 17 of the Army Rules.It was the case on behalf of the appellant that once the SummaryCourt Martial awarded the punishment, thereafter to dismiss theFappellant by passing an administrative order under Section 20 ofthe Army Act, read with Rule 17 of the Army Rules, would bedouble jeopardy, which is not permissible. However, the High Courtdid not agree with the same and dismissed the writ petition byobserving that the administrative power under Section 20 of theGArmy Act, read with Rule 17 of the Army Rules, is an independentpower and therefore the order of dismissal passed under Section20 of the Army Act, read with Rule 17 of the Army Rules, is notrequired to be interfered with. Consequently, the High Court bythe impugned judgment and order has dismissed the said writpetition and has refused to interfere with the administrative order G

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dismissing the appellant from service, which was passed in exerciseof the powers under Section 20 of the Army Act, read with Rule17 of the Army Rules.

3. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the appellant – original writ petitionerhas preferred the present appeal.

4. Shri. Braj K. Mishra, learned Advocate appearing on behalf ofthe appellant – original writ petitioner has vehemently submitted that inthe facts and circumstances of the case, the High Court has committeda grave error in dismissing the writ petition and not interfering with thetermination order passed by the respondent-authority dated 29.4.2002.

4.1 Shri. Braj K. Mishra, learned Advocate appearing on behalfof the appellant – original writ petitioner has vehemently submittedthat the High Court has materially erred in not appreciating thefact that the order passed by respondent no.3 thereby dismissingthe appellant from service was actually illegal and bad in law andwould tantamount to double jeopardy.

4.2 It is submitted by the learned counsel appearing on behalf ofthe appellant that the High Court has not properly appreciatedand considered the fact that the appellant for the one and thesame offence was sought to be punished twice by the respondents.It is submitted that earlier the appellant was made to face SummaryCourt Martial in respect of charges of misconduct enumerated inthe charge sheet dated 3.8.1999. The appellant was found guiltyof the same misconduct and on 7.8.1999 the Court Martial imposedthe punishment of reduction in rank under Section 71 of the ArmyAct. It is submitted that the said proceedings concluded after theorder of punishment was given to the appellant. It is submittedtherefore, after passing the order of punishment passed by theSummary Court Martial and the same had attained finality,thereafter it was not open for respondent no.2 to re-open thematter and initiate any further proceedings against the appellanton the same set of charges.

4.3 It is submitted by the learned counsel appearing on behalf ofthe appellant that in the present case despite there being a sentenceawarded by the Summary Court Martial, which was after theconclusion of the proceedings of the Summary Court Martial, the AB

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respondents issued a show cause notice dated 24.3.2000 allegingagainst the appellant that the particulars of charges disclosed thatthe offence was fraudulent in nature. It is submitted that thereforethe show cause notice dated 24.3.2000 itself was illegal and badin law.

4.4 It is vehemently submitted by the learned counsel appearingon behalf of the appellant that after the conclusion of the SummaryCourt Martial in which the appellant was given the punishment ofreduction in rank, thereafter respondent no.3 had no jurisdictionto take any further action in respect of very same misconduct ofthe appellant. It is submitted that if at all the offences were said tobe fraudulent in nature, it was open for respondent no.3 to imposeany punishment upon the appellant at the time of conducting theSummary Court Martial itself. It is submitted that, however, at therelevant time, respondent no.3 had taken a conscious decision toimpose the punishment of reduction in rank of the appellant. It issubmitted that in that view of the matter, thereafter respondentno.3 was not legally entitled to re-open the matter and initiatefresh proceedings on the same set of charges for which theappellant had already been awarded sentence by way of reductionin rank. In support of his above submissions, learned counselappearing on behalf of the appellant has taken us to the relevantprovisions of the Act, more particularly Sections 121, 161 and 162of the Army Act.

4.5 It is further submitted by the learned counsel appearing onbehalf of the appellant that even the manner in which the Court ofInquiry was subsequently conducted by the respondents is alsoillegal and ab initio void. It is submitted that the appellant hadissued a show cause notice dated 24.3.2000 in which it was allegedthat the particulars of the charges mentioned in the show causenotice disclosed that the offence is fraudulent in nature. It issubmitted that therefore it was necessary for respondent no.3 toconduct further investigation/enquiry if at all permissible in lawonly in respect of allegations which were called fraudulent in natureof charges mentioned in the show cause notice dated 3.8.1999. Itis submitted that as such in view of the conclusion of the SummaryCourt martial, the same was not permissible. It is submitted that,however, according to respondent no.3, the Court of Inquiry was

conducted from the fresh facts allegedly revealed in the reply onbehalf of the appellant to the show cause notice. It is submittedthat by the show cause notice dated 24.3.2000, the appellant wascalled upon to submit his reply in respect of alleged fraudulentnature of charges made against him in charge sheet dated3.8.1999. It is submitted therefore that as a defence the appellantdenied the charges by stating that the same are not fraudulentnature of charges. It is submitted that even otherwise, if at allrespondent no. 3 was of the opinion that the appellant had madefalse statements or given any false information in his reply dated10.4.2000 and for that purpose it was necessary to proceed againstthe appellant under the Act and the Rules made thereunder, thenit was necessary for respondent no.3 to come up with a freshcharge sheet making specific allegations against the appellant withrespect to specific contents of the appellant’s reply to the showcause notice. It is submitted that it was also necessary forrespondent no.3 to give an appropriate and reasonable opportunityto the appellant to meet with those specific allegations in relationto the alleged false statements made by the appellant in his replyto the show cause notice. It is submitted that, however, admittedlyneither such fresh charge sheet was issued to the appellant norany opportunity was given to the appellant by firstly explaining tohim which of the statements and contents of his reply to the showcause notice were false, misleading etc. It is submitted that theappellant was also not called upon to submit his explanation to thesame. It is submitted that respondent no.3 straightway proceededto conduct the Court of Inquiry and came to the conclusion thatthe appellant has committed the misconduct while submitting hisreply to the show cause notice and for such misconduct, he is notauthorised to retain in service or that further retention of theappellant in service is considered undesirable. It is submitted thattherefore the entire proceedings conducted by respondent no.3are illegal, bad in law and without jurisdiction and the same arealso in breach of the Army Act and the Rules made thereunderand therefore the same ought to have been set aside by the HighCourt.

4.6 It is further submitted that the exercise of the administrativepowers by respondent no.3 under Section 20 of the Army Actread with Rule 17 of the Army Rules after the conclusion of the AB

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Summary Court Martial and award of sentence under Section 71of the Army Actfor the very charge sheet/grounds for which theSummary Court Martial was conducted, is wholly illegal andwithout jurisdiction.

4.7 In support of his submissions, learned counsel appearing onBbehalf of the appellant has relied upon a decision of this Court inthe case ofState of Madhya Pradesh v. Hazari Lal reported in(2008) 3 SCC 273.

4.8 Making the above submissions and relying upon the abovedecision of this Court, it is prayed to allow the present appeal.

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5. The present appeal is vehemently opposed by Ms. Sonia Mathur,learned Senior Advocate appearing on behalf of the respondents. LearnedSenior Advocate appearing on behalf of the respondents has vehementlysubmitted that the order of termination passed by respondent no.3,challenged before the High Court, was an administrative order passed inDexercise of powers under Section 20 of the Army Act, read with Rule 17of the Army Rules. It is submitted that powers under Section 20 of theArmy Act, read with Rule 17 of the Army Rules are independent powersavailable to respondent no.3. It is submitted that therefore the contentionon behalf of the appellant that a subsequent administrative order oftermination passed under Section 20 of the Army Act read with Rule 17Eof the Army Rules is double jeopardy has no substance.

5.1 It is further submitted by the learned Senior Advocate appearingon behalf of the respondents that proceedings under Section 20 ofthe Army Act, read with Rule 17 of the Army Rules areadministrative in nature. It is submitted that the administrativeFproceedings are independent of the criminal proceedings and evenboth can run in parallel. It is submitted that assuming that theproceedings under Section 20 of the Army Act are criminalproceedings, still the offences tried for in the Court Martial weredifferent from those under Section 20 of the Army Act andGtherefore there cannot be a case of double jeopardy as the actiontaken under Section 20 of the Army Act cannot be considered tobe a “prosecution” under Article 20(2) of the Constitution of India.

5.2 It is further submitted that in the present case the impugnedorder of termination in exercise of powers under Section 20 ofthe Army Act read with Rule 17 of the Army Rules was passed H

after following due procedure as required, by passing the orderunder Section 20 of the Army Act. It is submitted that Section 20of the Army Act provides that the Chief of Army Staff or otherofficers may dismiss or remove from the service any person subjectto the Army Act, other than an officer. It is submitted that the onlyprocedure prescribed under the Army Rules for dismissal underRule 17 of the Army Rules isthat no person shall be dismissed orremoved unless he has been informed about the cause of actionagainst him and allowed reasonable time to state in writing anyreasons he may have to urge against his dismissal or removalfrom service.

5.3 It is submitted by the learned Senior Advocate appearing onbehalf of the respondents that as per the scheme of the ArmyAct, Chapter 4 deals with conditions of service. It is submittedthat in the said Chapter, Section 18 provides the doctrine of pleasureof President. Sections 19 & 20 further provides power of CentralGovernment to terminate the services of the officer on misconductand the power of Chief of Army Staff and other officer to terminatethe service of other ranks. It is submitted that in Chapter 3 of theRules, Rules 14 and 17 deal with the procedure for the terminationof service by the Central Government on account of misconductin respect of the officer and dismissal or removal by Chief ofArmy Staff and by other officers in respect of other ranksrespectively.

5.4 It is submitted by the learned Senior Advocate appearing onbehalf of the respondents that in Rule 14 the phrase conviction byCourt Martial is not mentioned which is given in Rule 17 in respectof other ranks. It is submitted that therefore the Parliament hasincluded the said phrase in Rule 17 because only other ranks canbe tried by Summary Court Martial which does not requireconfirmation in terms of Section 153 of the Army Act. It issubmitted that in the absence of any power of confirmation whichis available in case of General Court Martial, Summary CourtMartial and District Court Martial, the Summary Court Martialcannot be sent for revision once signed by the CommandingOfficer after the trial. It is submitted that in other words the schemeof the Army Act and the Army Rules provide a mechanism torectify any error committed by Court Martial by way of revision AB

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under Section 160 of the Army Act read with Rule 68 of theArmy Rules, which is not available in the case of Summary CourtMartial. It is submitted that in order to avoid miscarriage of justice,Parliament has empowered the competent authority to take therecourse of Section 20 of the Army Act read with Rule 17 of theArmy Rules by providing power to dismiss the individual afterbeing convicted by Court Martial.

5.5 It is further submitted by the learned Senior Advocate appearingon behalf of the respondents that in the present case the chargesframed against the accused (appellant herein – original writpetitioner) were all under Section 63 of the Army Act which werevery serious which warranted trial by either General Court Martialor District Court Martial. It is therefore submitted that it wasimperative on the part of the Commanding Officer to refer thesame for proper legal advice. It is further submitted that therewas no proper application of mind at the relevant time when theSummary Court Martial was held and conducted and theCommanding Officer dealt with the matter without any properapplication of mind. It is submitted that the case of frauds needsto be dealt with appropriately and laxity of the nature shown inthis case defeated the ends of justice and the wrong precedentwas set for the prospective offenders. It is submitted that therefore in order to ensure that the accused does not escape from thenatural consequences of his fraudulent acts, recourse wastherefore taken to terminate his services under Section 20 of theArmy Act read with Rule 17 of the Army Rules. It is submittedthat therefore the action of termination under Section 20 of theArmy Act read with Rule 17 is legally in order, as Rule 17 providesfor dismissal of a person convicted by a Court Martial whoseretention in service is not desirable.

5.6 Now so far as the submission on behalf of the appellant onexerciseof the powers by the Chief of Army Staff under Section163 of the Army Act is concerned, learned Senior Advocateappearing on behalf of the respondentshas heavily relied upon thedecision of this Court in the case of Union of India and othersv. Harjeet Singh Sandhu reported in (2001) 5 SCC 593. It issubmitted that in the aforesaid decision, this Court considered indetail the entire scheme of the Army Act and the Rules with respect to Summary Court Martial etc. and the powers of theCommanding in Chief Staff under Section 20 of the Army Actread with Rule 17 of the Army Rules, and the case of an officerwhose service is proposed to be terminated on the ground ofmisconduct which has led to his conviction by a criminal Court. Itis submitted that in the aforesaid decision, this Court recognisedthe independent powers under Section 20 of the Army Act readwith Rule 17 of the Army Rules. Relying upon the aforesaiddecision, it is vehemently submitted by the learned Senior Advocateappearing on behalf of the respondents that the proceedings underSection 20 of the Army Act are administrative in nature and noton the same footing as that of a Court Martialproceedings. It isfurther submitted that there cannot be a case of double jeopardyas the action taken under Section 20 of the Army Act cannot beconsidered to be a “prosecution” under Article 20(2) of theConstitution of India.

5.7 Learned Senior Advocate appearing on behalf of therespondents has heavily relied upon the decision of this Court inthe case of Chief of Army Staff v. Major Dharam Pal Kukretyreported in (1985) 2 SCC 412 in support of her submission thatin the present case the exercise of powers by the Chief of ArmyStaff under Section 20 of the Army Act does not suffer from anyillegality.

5.8 It is further submitted by the learned Senior Advocate appearingon behalf of the respondents that even otherwise on merits also,the order of termination passed by respondent no.3 in exercise ofpowers under Section 20 of the Army Act read with rule 17 of theArmy Rules is not required to be interfered with.

5.9 It is submitted that in the present case the initial show causenotice dated 24.3.2000 clearly set out that the conduct which ledto reduction in rank by the Summary Court Martial was fraudulentin nature and therefore the appellant was called upon to showcause as to why action under Section 20 of the Army Act readwith Rule 17 of the Army Rules be not taken. It is submitted thatin reply thereto, the appellant categorically stated that he was notpresent in the unit till 29.2.1996. It is submitted that the assertionof the appellant’s reply regarding his absence was subject of aCourt of Inquiry presided by a Colonel which found the said AB

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Astatement to be incorrect and recommended suitable disciplinaryaction. It is submitted that on the basis of the opinion of the Courtof Inquiry, the Brigade Commander recommended disciplinaryaction for giving false and misleading reply to the show causenotice. It is submitted that it was in the above background a furtherindependent show cause notice dated 17.4.2001 was issued toBthe appellant to show cause as to why he should not be dischargedunder Rule 13(3) item III(v) as his services are no longer required,being undesirable. It is submitted that power to discharge is underSection 22 of the Army Act. It is submitted that the appellant hasduly understood the difference between the two show causeCnotices, namely, show cause notice dated 24.3.2000 and thesubsequent show cause notice dated 17.4.2001 and repliedaccordingly on 14.6.2001. It is submitted that the first show causenotice dated 24.3.2000 was issued under Rule 17 which providesfor dismissal or removal from service while the second show causenotice was for discharge under Section 22 read with Rule 13. It isDsubmitted that both the show cause notices were issued in exerciseof distinct powers vested under the Army Act and the Army Rules.It is submitted that eventually the order dated 29.4.2002 fordismissal has been passed under Section 20 of the Army Act readwith Rule 17 of the Army Rules. It is submitted that therefore theEprocedural requirements of Section 20 of the Army Act read withRule 17 have been duly complied with. It is submitted that there isno contention regarding any non-compliance of any proceduralrequirement. It is submitted that the only issue raised wasavailability of the power to initiate administrative action after theproceedings of Court Martial have attained finality. It is submittedFthat thereafter having been satisfied that in the larger interest theappellant cannot be continued in service and therefore his serviceshave rightly been terminated/he is rightly dismissed from serviceunder Section 20 of the Army Act read with Rule 17 of the ArmyRules.

G5.10 Making the above submissions and relying upon the aforesaiddecisions of this Court, it is prayed to dismiss the present appeal.

6. We have heard the learned counsel appearing for the respectiveparties at length.

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6.1 At the outset, it is required to be noted that in the present case,the appellant has been dismissed from service by the Commander,respondent no.3 herein, while exercising powers under Section20 of the Army Act read with Rule 17 of the Army Rules.

6.2 It is the case on behalf of the appellant that as earlier he wassubjected to the Summary Court Martial for the very charges ofmisconduct for which the order of dismissal has been passed andearlier the Summary Court Martial passed an order of reductionin rank, the subsequent order of dismissal passed by respondentno.3 herein in exercise of powers under Section 20 of the ArmyAct is bad in law and would be violative of the principle of doublejeopardy.

6.3 On the other hand, it is the case on behalf of the departmentthat power of dismissal under Section 20 of the Army Act vestedwith the Chief of Army Staff and other officers is an independentpower and the two Sections, Section 20 and 71 of the Army Act,are, therefore, mutually exclusive. While considering the submissionon behalf of the department that power under Section 20 of theArmy Act is an independent power vested with the Chief of ArmyStaff and other officers, the decision of this Court in the case ofHarjeet Singh Sandhu (supra) is required to be referred to andconsidered.

6.4 While considering the similar power of termination of serviceby the Central Government under Section 19 of the Army Act, itis observed and held by this Court that power under Section 19(vested with the Central Government)is an independent power.It is further observed and held by this Court in the aforesaiddecision that the Central Government or the Chief of the ArmyStaff may arrive at a satisfaction that it is inexpedient orimpracticable to have the officer tried by a Court Martial, thenthe Court Martial may not be convened and additionally, subjectto formation of the opinion as to undesirability of the officer forfurther retention in the service, the power under Section 19 readwith Rule 14 may be exercised. It is further observed and heldthat such a decision under Section 19 read with Rule 14 may betaken either before convening the Court Martial or even after ithas been convened and commenced, subject to satisfaction as tothe trial by a Court Martial becoming inexpedient or impracticable A

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Aat which stage the Central Government or the Chief of the ArmyStaff may revert back to Section 19 read with Rule 14. At thesame time, it is further observed and held that there shall be finalityto the finding and sentence of Court Martial subject to their beingconfirmed and not annulled. It is further observed that questionsof correctness, legality and propriety of the order passed by anyBCourt Martial and the regularity of any proceedings to which theorder of Court Martial relates can be raised by way of petitionunder Section 164. It is further observed that once the finding andthe sentence, if any, have been confirmed, the Court Martial beinga Special Tribunal dispensing military justice, it would not beCpermissible to exercise additionally the power conferred by Section19 read with Rule 14 and to inflict a penalty thereunder if theCourt Martial has not chosen to inflict the same by way ofpunishment under Section 71. It is further observed that to permitsuch a course would be violative of the principle of double jeopardyand would also be subversive of the efficacy of the Court MartialDproceedings, finding and sentence. It is further observed and heldthat so long as a final verdict of guilty or not guilty, pronounced bya Court Martial and confirmed by the competent authority so asto be effective is not available, the power to proceed under Section19 read with Rule 14(2) exists and remains available to beEexercised.6.5 In light of the aforesaid observations and the law laid down bythis Court, the order of dismissal dismissing the appellant fromservice which was passed by respondent no.3 herein in exerciseof power under Section 20 of the Army Act and its legality isFrequired to be considered.

7. From the facts emerging from the record, it appears that earlierthe appellant was subjected to Summary Court Martial on the followinglapses:

“(a) Not correctly preparing certified Receipt convoy note againstGreceipt convoy note 599 date 27 Feb. 1996.

(b) Not dispatching the consignments pertaining to OTG and receiptConvoy Note on 29[th] Feb. 1996 and 02 March, 1996 and insteaddispatching consignments pertaining to receipt convoy Notes ofothers.

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(c) Furnishing false information to the court that buckets steelQty 3700 were not received in OTG contrary to the fact that Qty268 packages of buckets steel were unloaded in OTG on 27 Feb.1996.”

However, it is required to be noted that at the relevant time, theaforesaid lapses/charges were not considered to be fraudulent in natureand the appellant was tried by Summary Court Martial for the said lapses/charges under Section 63 of the Army Act. Thereafter, the appellantwas inflicted with the penalty of reduction in rank. Nothing is on recordthat the order passed by the Summary Court Martial by which the appellantwas reduced in rank was even confirmed by the Chief of the ArmyStaff in exercise of powers under Section 164 of the Army Act.Therefore, it cannot be said that the order passed by the Summary CourtMartial by which the appellant was inflicted with the penalty of reductionin rank attained finality on being confirmed by the competent authority(in the present case the Chief of the Army Staff). Therefore, consideringthe observations made by this Court in paragraphs 24 to 27(moreparticularly, paragraph 27) in the case of Harjeet Singh Sandhu (supra),it was open for the competent authority to exercise powers under Section20 of the Army Act read with Rule 17 of the Army Rules. The powervestedwith the Chief of the Army Staff and conferred under Section 20 of theArmy Act is an independent power available and for which the procedureunder Rule 17 of the Army Rules is required to be followed, however,subject to the restrictions as observed by this Court in paragraph 27 inthe case of Harjeet Singh Sandhu (supra). Meaning thereby that onlyin a case where the final verdict of guilty or not guilty pronounced by aCourt Martial has been confirmed by the competent authority and hasattained finality, the power to proceed under Section 19 read with Rule14 or Section 20 read with Rule 17 shall not be available to be exercised.In other words, so long as a final verdict of guilty or not guilty pronouncedby a Court Martial and confirmed by the competent authority as to beeffective is not available, the power to proceed under Section 19 readwith Rule 14 or Section 20 read with Rule 17, as the case may be, existsand remains available to be exercised. Therefore, in the facts andcircumstances of the case and in the absence of any confirmation of theorder passed by the Summary Court Martial by which he appellant wasreduced to rank, the respondent no.3 herein was justified in exercisingthe power under Section 20 read with Rule 17. At this stage, it is requiredto be noted that while exercising the power under Section 20 of the A

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AArmy Act, the only procedure which is required to be followed would beunder rule 17 of the Army Rules, namely, a person who is sought to bedismissed or removed from service has been informed of the particularsof the cause of action against him and allowed reasonable time to statein writing any reasons he may have to urge against his dismissal orremoval from the service. In the present case, such an opportunity hasBbeen given to the appellant and therefore the proper procedure has beenfollowed before dismissing the appellant from service, in exercise ofpowers under Section 20 of the Army Act.

8. Now so far as the submission on behalf of the appellant thatthe order of dismissal passed under Section 20 of the Army Act wouldCbe violative of the principle of double jeopardy is concerned, for thereasons stated above, the same cannot be accepted. There is one anotherreason also why the order of dismissal under Section 20 of the ArmyAct cannot be said to be violative of the principle of double jeopardy. Itis required to be noted that when earlier the appellant was treated by theDSummary Court Martial, he was tried for the offences under Section 63of the Army Act only. However, subsequently the Chief of the ArmyStaff was of the opinion that the particulars of charges for which earlierthe appellant was tried by the Summary Court Martial and which weretried under Section 63 of the Army Act disclose that the offences werefraudulent in nature. Therefore, while treating and considering theEoffences as fraudulent in nature and thereafter after giving an opportunityto the appellant as required under Rule 17 and thereafter having beensatisfied that the appellant cannot be continued in service, the order ofdismissal has been passed by respondent no.3 herein in exercise of powersunder Section 20 of the Army Act read with Rule 17 of the Army Rules Fand the said order of dismissal has been confirmed by the Chief of theArmy Staff while exercising the powers under Section 164 of the ArmyAct on a petition filed by the appellant. Therefore, in the facts andcircumstances of the case, the order of dismissal passed under Section20 of the Army Act and confirmed by the Chief of the Army Staff cannotbe said to be violative of the principle of double jeopardy.G

9. Now so far as the submission on behalf of the department thatsubsequently the appellant was served with the show cause notice dated17.04.2001 by which the appellant was called upon to show cause as towhy he should not be discharged under Rule 13(3) item III(v) whichwas on the allegation that in reply dated 10.04.2000 to the show causeH

notice dated 24.03.2000, the appellant made a false and misleading replyand thereafter the Court of Enquiry was conducted and thereafter havingfound that the services of the appellant is no longer required beingundesirable and therefore the order of discharge has been passed afterfollowing due procedure is concerned, it is required to be noted that theorder of dismissal which is the subject matter of the present appeal hasnot been passed under Rule 13(3) item III(v). The order of dismissal inthe present case is specifically passed under Section 20 of the Army Actread with Rule 17 of the Army Rules. Therefore, the justification of theorder of dismissal which is the subject matter of the present appeal onthe aforesaid ground is not sustainable. However, at the same time, andfor the reasons stated above, order of dismissal dated 29.04.2002 whichwas the subject matter before the High Court and even before this Courtwhich has been passed under Section 20 of the Army Act read withRule 17 of the Army Rules is just, proper, legal and valid and the same isrightly not interfered by the High Court. We are in complete agreementwith the ultimate conclusion arrived at by the High Court in the impugnedjudgment and order.

10. In view of the above and for the reasons stated above, thepresent appeal fails and is liable to be dismissed and is accordinglydismissed. However, in the facts and circumstances of the case, thereshall be no order as to costs.

Ankit Gyan

Appeal dismissed.

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