, REGIONAL BENCH, KOCHI

O.A.Nos. 70 of 2011 & 118 of 2013

FRIDAY, THE 21ST DAY OF NOVEMBER, 2014/30TH KARTHIKA, 1936

CORAM:

HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN,AVSM & BAR, NM, MEMBER (A)

O.A.NO.70 OF 2011:

APPLICANT:

JC-459291W EX-NB SUB CLK SAJEEV MOHAN K, AGED 45 YEARS, RECORDS, THE MARATHA LIGHT , BELGAUM, KARNATAKA-590 009.

BY ADV.SRI.RAMESH.C.R.

VERSUS

RESPONDENTS:

1. THE UNION OF , THROUGH THE SECRETARY, MINISTRY OF DEFENCE (ARMY), SOUTH BLOCK, NEW – 110 001.

2. THE CHIEF OF ARMY STAFF, INTEGRATED HQRS. OF MOD (ARMY), SOUTH BLOCK, NEW DELHI – 110 001.

3. THE ADJUTANT , AG'S BRANCH, ARMY HEADQUARTERS, DHQ.P.O., NEW DELHI-110011.

4. THE COMMANDING (WESTERN COMMAND), CNANDIMANDIR (UT), ARMY PIN CODE – 908543. O.A.70 of 2011 & 118 of 2013 - 2 -

5. THE GENERAL OFFICER COMMANDING (HQR), 7 INF DIV, PIN – 908407, C/O.56 APO.

6. THE DIRECTOR, RECRUITING, ARMY RECRUITING OFFICE, FEROZPUR, PUNJAB, C/O.56 APO.

7. THE OFFICER-IN-CHARGE, WESTERN COMMAND, IS GROUP, CHANDIMANDIR (UT) ARMY PIN 904992.

8. THE RECORDS, THE , BELGAUM, KARNATAKA-590 009.

BY ADV.SRI.K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL

O.A.NO.118 OF 2013:

APPLICANT:

JC-459291W NB SUB CLK SAJEEV MOHAN K, AGED 43 YEARS, RECORDS, THE MARATHA LIGHT INFANTRY, BELGAUM, KARNATAKA-590 009.

BY ADV.SRI.RAMESH.C.R.

VERSUS

RESPONDENTS:

1. THE UNION OF INDIA, THROUGH THE SECRETARY, MINISTRY OF DEFENCE (ARMY), SOUTH BLOCK, NEW DELHI – 110 001.

2. THE CHIEF OF ARMY STAFF, INTEGRATED HQRS. OF MOD (ARMY), SOUTH BLOCK, NEW DELHI – 110 001.

3. THE ADJUTANT GENERAL, AG'S BRANCH, ARMY HEADQUARTERS, DHQ.P.O., NEW DELHI-110011.

O.A.70 of 2011 & 118 of 2013 - 3 -

4. THE GENERAL OFFICER COMMANDING (WESTERN COMMAND), CHANDINANDIR (UT), ARMY PIN CODE – 908543.

5. THE GENERAL OFFICER COMMANDING (HQR), 7 INF DIV, PIN – 908407, C/O.56 APO.

6. THE DIRECTOR, RECRUITING, ARMY RECRUITING OFFICE, FEROZPUR, PUNJAB, C/O.56 APO.

7. THE OFFICER-IN-CHARGE, WESTERN COMMAND, IS GROUP, CHANDIMANDIR (UT) ARMY PIN 904992.

8. THE RECORDS, THE MARATHA LIGHT INFANTRY, BELGAUM, KARNATAKA-590 009.

BY ADV.SRI.K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL

ORDER

Shrikant Tripathi, Member (J):

The applicant, Ex-NB Sub Clerk, Sajeev Mohan K, No.JC-

459291W has filed these two matters. In O.A. No. 70 of 2011, he has claimed for his reinstatement in the Army service with all consequential benefits after quashment of the dismissal order dated

1st June, 2011 (Annexue A28) rendered by the second respondent.

By the second Original Application, O.A. No.118 of 2013, he has challenged the proceedings of the General Court Martial, (hereinafter referred to as the 'GCM') and its verdict on Charge No.2 and also the O.A.70 of 2011 & 118 of 2013 - 4 - decision of the confirming authority, whereby the confirming authority did not agree with the finding of the GCM on Charge No.1 and the quantum of punishment with regard to the proved charge No. 2.

2. With the consent of the learned counsel for the parties, both the matters were heard together and are being disposed of by this common order.

3. The applicant was tried by the GCM on the following charges:

Charge No.1 - under Army Act Section 64(e): It is alleged that the applicant, on 25th September 2005, while performing the duties of the Head Clerk in the Branch Recruiting Office,

Ferozepur , obtained for himself Rs.5,000/- (Rupees five thousand only) from one Shri.Gurpreet Singh, a civilian, by way of gratification as a motive for procuring enrolment of the said Gurpreet

Singh and accordingly he committed the aforesaid offence.

Charge No.2 – under Army Act Section 69: The applicant, on 25th September, 2005 at Firozepur, was found in possession of O.A.70 of 2011 & 118 of 2013 - 5 - certain prohibited ammunitions, detailed in the charge, contrary to

Section 25(1-A) of the Arms Act, 1959.

4. The applicant pleaded not guilty to the charges.

Accordingly the GCM proceeded with the trial and after concluding the trial recorded the finding that Charge No.1 was not proved, but found that Charge No.2 was proved beyond all reasonable doubts and accordingly held the applicant guilty of the said charge. The

GCM awarded the sentence of forfeiture of two years of past service of the applicant for the pension purposes and also severely reprimanded him. The Confirming Authority, namely, the General

Officer Commanding-in-Chief, 7 Infantry , did not confirm the finding of the GCM and ordered for revision. Accordingly, the

GCM re-assembled on 16th March, 2010 and rendered a fresh order on 22nd March, 2010 after the revision holding that no interference was warranted in its earlier findings. Again the revised verdict of the GCM was referred for confirmation, but the

Confirming Authority did not agree with the finding of the GCM, consequently declined to confirm. Ultimately the matter was placed before the Chief of the Army Staff, who found that further trial by the GCM was inexpedient and impracticable, so he decided O.A.70 of 2011 & 118 of 2013 - 6 - to proceed against the applicant under the Army Act Section 20(1), hereinafter referred to as section 20(1), read with Army Rule 17, hereinafter referred to as Rule 17. Accordingly the show cause notice dated 15th December, 2010 (Annexure A23) was served on the applicant, whereby he was called upon to submit his replies within

30 days from the date of receipt of the show cause notice as to why his service should not be terminated. The applicant submitted his reply dated 15th February 2011 (Annexure A24) to the show cause notice. The Chief of the Army Staff considered the reply and passed the impugned order dated 1st June, 2011 (Annexure A28), whereby he dismissed the applicant from the service.

5. Mr. C.R. Ramesh, appearing for the applicant, made two fold submissions. Firstly he tried to assail the finding of the GCM on

Charge No.2 and the finding of the Confirming Authority on Charge

No.1, including his finding on the quantum of sentence on Charge

No.2. Secondly he assailed the show cause notice issued by the

Chief of the Army Staff (Annexure A23), including the final decision taken by him in pursuance of the show cause notice. O.A.70 of 2011 & 118 of 2013 - 7 -

6. Mr. C.R. Ramesh further contended that Gurpreet Singh, who had allegedly given illegal gratification to the applicant, was not examined during the trial before the GCM, so the finding of the

GCM on Charge No.1 was perfectly correct. But the Chief of the Army

Staff, without entering into the merits of the evidence, rendered his decision to dismiss the applicant from service on the basis of the finding of the Confirming Authority on Charge Nos.1 and 2. He next contended that the points raised by the applicant in his reply were neither considered nor in any way answered by the Chief of the Army

Staff while rendering the final order of dismissal, so, the entire decision stood vitiated. Mr. Ramesh C.R. next contended that when the proceedings of the GCM came to an end without any logical conclusion due to difference of opinion between the GCM and the

Confirming Authority, there was no occasion for the Chief of the Army

Staff to proceed under Section 20(1) read with Rule Rule 17 on the basis of the finding of the Confirming Authority.

7. Mr. K.M. Jamaludheen, learned counsel appearing for the respondents, on the other hand, submitted that when the GCM proceedings stood redundant due to difference of opinion between the GCM and the Confirming Authority even after the revision, the O.A.70 of 2011 & 118 of 2013 - 8 -

Chief of the Army Staff, who had independent power under Section

20(1) read with Rule 17 was perfectly justified to proceed against the applicant. So it was incorrect to say that the Chief of the Army Staff had no power to take the decision for the applicant's dismissal from service. He next contended that the Chief of the Army Staff rendered a reasoned order, so no prejudice was caused to the applicant.

8. We have considered the rival submissions and perused the records.

9. Before considering the rival submissions on merits, we consider it just and expedient to look into the various relevant provisions of the Army Act, 1950, hereinafter referred to as 'the Act' and the Rules made thereunder. Section 153 of the Act provides that no finding or sentence of a General, District or Summary General

Court Martial shall be valid except so far as it may be confirmed as provided by this Act. Section 154 empowers the

Central Government or any officer authorised in this behalf by warrant of the Central Government to confirm the finding and sentence of the GCM. Section 160 of the Act provides for revision of finding or sentence, according to which, any finding or sentence of a Court Martial, which requires confirmation may be once revised O.A.70 of 2011 & 118 of 2013 - 9 - by the order of the Confirming Authority and in that eventuality, it is open to the Court Martial to take additional evidence and after revision form its own independent opinion. In case the court reiterates its previous verdict even on revision and decides not to modify the same, the Confirming Authority, if it is unable to agree with the decision rendered on revision, has no power either to alter the finding or sentence or direct for a fresh revision/ re-trial etc. In such circumstances, the charged Army personnel, despite conclusion of the trial by the Court Martial, escapes from the punishment, if no other recourse provided in the Act and the Rules made thereunder is adopted, especially when the finding or sentence of a General,

District or Summary General Court Martial as per Section 153 of the

Act cannot be held to be valid unless confirmed. We have to see, therefore, as to what recourses in such matters can be resorted to within the frame work of the Act and the Rules. One of the recourses is the annulment of the proceedings of the Court Martial as per Section 165. The other course may be of re-trial, if it is not prohibited as per the requirements of Section 121 of the Act. The third recourse that is available is to invoke the powers under Section

19 or 20, as the case may be, of the Act. Admittedly in the applicant's matter, Section 20(1) of the Act could be invoked, if it O.A.70 of 2011 & 118 of 2013 - 10 - was legally permissible under the facts and circumstances of the case, which we will consider hereinafter at the appropriate place.

10. Section 20 of the Act, being independent of the provisions pertaining to Courts Martial, provides for dismissal, removal or reduction by the Chief of the Army Staff and by other officers.

Sub-sections (1) and (7) of section 20 being relevant in the present case are reproduced as follows:

“20. Dismissal, removal or reduction by the Chief of the Army Staff and by other officers.

(1) The Chief of the Army Staff may dismiss or remove from the service any person subject to this Act, other than an officer. (2) xxx xxx xxx (3) xxx xxx xxx ….” (4) xxx xxx xxx (5) xxx xxx xxx (6) xxx xxx xxx

(7) The exercise of any power under this section shall be subject to the said provisions contained in this Act and the rules and regulations made thereunder.”

11. Section 20(1) has therefore conferred power on the

Chief of the Army Staff to dismiss or remove from service any O.A.70 of 2011 & 118 of 2013 - 11 - person, subject to the Army Act, other than an officer. Sub-section

(7) of section 20 provides as to how the power of dismissal and removal is to be exercised by the Chief of the Army Staff and other officers, according to which, the exercise of any power under the said section 20 shall be subject to the rules and regulations and provisions of the Act. Rule 17 seems to have been framed to provide for the procedure as to how the power of dismissal or removal under section 20(1) is to be exercised. In other words, no dismissal or removal from service can be made under section 20(1) without due compliance of the requirements of the provisions of Rule 17. Rule

17, being relevant, is reproduced as follows:

“ Dismissal or removal by Chief of t h e Ar m y S t a f f and by other officers. —

Save in the case where a person is d i s m i s s e d o r removed from service on the ground of c o n d u c t which has led to his conviction by a criminal court or a court-martial, no person shall be dismissed or removed under sub-section (1) or sub-section (3) of section 20; unless he has been informed of the particulars of the cause of action against h i m a n d a l l o w e d reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service: O.A.70 of 2011 & 118 of 2013 - 12 -

Provided that if in the opinion of the officer competent to order the dismissal or removal,it is not expedient or reasonably practicable to comply with the provisions of this rule, he may after certifying to that effect, order the dismissal or removal without complying with the procedure set out in this rule. All cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported to the Central Government”

12. What is, therefore, required by Rule 17 is not only to inform the particulars of the cause of action (allegations) with certainty and without any ambiguity and vagueness to the delinquent so as to enable him to furnish reasons against the proposed action, if any, but also requires the authority concerned to give due consideration to the reasons so furnished and pass a speaking order.

But this observance is not necessary in the case of a dismissal or removal on the ground of conduct which has led to conviction of the individual by a criminal court or Court Martial. It is also open to the competent officer to dispense with the requirement of Rule 17, if he is of the opinion that it is not expedient or reasonably practicable to comply with the provisions of Rule 17, but in such matter a report to that effect shall be sent to the Government. O.A.70 of 2011 & 118 of 2013 - 13 -

13. Rule 17, in substance, incorporates the principles of natural justice for the purposes of ensuring fairness and reasonableness in the matter of dismissal or removal of a person from the Army Service and also for checking the arbitrary exercise of powers by the authorities. Fairness and reasonableness in the actions done by the Army authorities must reflect from their decisions, because fairness and reasonableness are the hall mark of Article 14 of the Constitution of India. The Apex Court in Sheel KR Roy v. Ministry of

Defence (2007) 12 SCC 462) observed, in paragraph 21, that it is now a well settled legal principle, which has firmly been accepted throughout the world that a person merely by joining the Armed

Forces does not cease to be a citizen or be deprived of his human or constitutional right.

14. The learned counsel for the applicant, in order to support the submission that the Chief of the Army Staff had no power to proceed under the Army Act Section 20 against the applicant when the GCM proceedings and its order had become redundant, relied upon the decision of the Delhi High Court in Ex. Sgt. O.A.70 of 2011 & 118 of 2013 - 14 -

Avimanyu Panda v. Union of India & others ((1999) 4 SLR

92). In that case, the petitioner therein had committed an act of outraging the modesty of a girl, who had come up for her medical check up. After a preliminary investigation, the summary of evidence was recorded and a proposal for convening a District Court Martial was sent to the competent authority. But no court martial proceeding was convened for one reason or the other. Ultimately, the show cause notice dated 14th July, 1995 was issued to the petitioner therein stating that he was guilty of committing an offence punishable under Section 354 I.P.C. read with Section 71 of the

Indian Air Force Act, 1950. The petitioner therein submitted his explanations. The authority concerned passed the order dismissing the petitioner therein from service. In that case, the authority had neither recorded any reasons nor conducted any inquiry before passing the order.

15. The questions which had been raised and considered in the aforesaid case of Ex. Sgt. Avimanyu Panda were, firstly, whether the respondents therein could resort to Rule 18 of the Air

Force Rules, 1969 to pass the order of dismissal after having dropped the disciplinary action, and secondly, whether the O.A.70 of 2011 & 118 of 2013 - 15 - respondents therein had any materials to sustain the order of dismissal. The Delhi High Court found in paragraph 51 of the order that the AOC -in-C, on 3rd July 1995, before permitting the issuance of the show cause notice had directed the initiation of action under

Section 20(3) of the Air Force Act, 1950. The High Court further observed that what influenced the AOC-in-C to pass the order was that his investigation revealed that the petitioner was involved in two similar incidents, one at the hospital at Bangalore and the other at

Sick Quarters (Unit), which were not formally reported on the request of the victims or their families. The High

Court further found that the respondents therein apparently, while not being aware of their constitutional obligations, could not assume things on the basis of materials not made available to the petitioner and without any evidence, rendered the decision. The High Court criticised the views of AOC-in-C that holding of a court martial will require the complainant to say things in Court, which will be traumatic for her, was wholly irrelevant. It was also held that there was no allegation that any national security was involved. In paragraph 52 of the order, the Delhi High Court further found that it was a case, where the decision had been taken to dismiss the petitioner from service and thereafter the show cause notice was O.A.70 of 2011 & 118 of 2013 - 16 - issued. Accordingly, the High Court held that the decision to withhold the Court Martial was on altogether irrelevant materials, so issue of show cause notice and taking the final decision in pursuance thereof was an arbitrary exercise of the power, which was violative of Article

14 of the Constitution of India. What is laid down in that case is that, the materials purported to be used against the person, to whom the show cause notice is given, has to be made available to him. If this is not done, the decision based on such materials would be vitiated. The second aspect of the decision of the Delhi High

Court, which can be inferred, was that, no decision without evidence should be taken. The High Court further held that once a decision to convene a Court Martial is initiated and summary of evidence etc. is recorded, then dropping the same without any plausible reason and invoking the provision of issue of show cause notice was not proper.

In our view, the decision of the Delhi High Court is based on the facts and circumstances of the case concerned, so, the same cannot be applied as a judicial precedent in the present matter, except on the points firstly, that the materials, on which basis the show cause notice was given to the applicant, were brought to his notice or not and, secondly, the decision of the Chief of the Army Staff is based on any evidence or not. Except with regard to these two aspects, the O.A.70 of 2011 & 118 of 2013 - 17 - decision of the Delhi High Court on other points, being fact based, is of no help to the applicant.

16. Per contra, the learned counsel for the respondents relied upon the Chief of the Army Staff & others v. Major Dharam

Pal Kukrety ((1985) 2 SCC 412) to support the legality of the show cause notice and the decision thereon taken by the Chief of the

Army Staff. In Kukrety's case, an officer was tried by a GCM, which announced its findings of not guilty of all the charges.

The Confirming Authority did not confirm the verdict and sent back the finding for revision. The same GCM assembled and after hearing both sides, once again announced the finding of not guilty of all the charges. This finding after revision was also subject to confirmation. The third appellant therein reserved the confirmation of the finding on revision by a superior authority, namely, the General Officer, Commanding in Chief, ,

Lucknow and forwarded the papers to him, who, vide his order dated 25th May, 1976, did not confirm the finding on revision of the

GCM. Accordingly, the finding and the non-confirmation thereof were promulgated as per Army Rule 71. The Chief of the Army

Staff, thereafter, issued the show cause notice dated 12th November O.A.70 of 2011 & 118 of 2013 - 18 -

1976 under Rule 14 to the respondent therein. Along with the notice, copies of abstracts of evidence and the Court Martial proceedings were also forwarded to the respondent, who filed Writ

Petition No.84 of 1976 before the Hon'ble High Court of Judicature at

Allahabad, which was allowed. The High Court held that if the GCM found the respondent therein not guilty of all the charges even on revision, it could not be said that it was inexpedient to try the respondent therein by a Court Martial. Therefore, notice under Rule

14 was without jurisdiction. The High Court further found that the notice would be exposing the respondent therein to jeopardy. The

Apex Court did not uphold the order of the Hon'ble High Court of

Judicature at Allahabad and held that in view of the facts and circumstances of the case, it was inexpedient and impracticable to try the respondent therein by a Court Martial. So, the proceedings initiated by the Chief of the Army Staff under the Act Section 19 read with Rule 14 were perfectly just and valid. The relevant observations of the Apex Court are reproduced as follows:

“13. It is pertinent to note that under Section 160 the confirming authority has the power to direct a revision of the finding of a court martial only once. There is no power in the confirming authority, if it does not agree with the O.A.70 of 2011 & 118 of 2013 - 19 -

finding on revision, to direct a second revision of such finding. In the absence of any such confirmation, whether of the original finding or of the finding on revision, by reason of the provisions of Section 153 the finding is not valid. Therefore, in the case of the respondent, the finding of the general court-martial on revision not having been confirmed was not valid. Could he, therefore, be tried again by another court-martial on the same charges? Under Section 121, a person subject to the Army Act, who has been acquitted or convicted of an offence by a court-martial or by a criminal court, is not liable to be tried again for the same offence by a court-martial. It can well be argued that by reason of the provisions of Section 153 under which no finding or sentence of a general, district or summary general court-martial is valid except insofar as it is confirmed as provided by the Army Act a person cannot be said to have been acquitted or convicted by a court-martial until the finding of 'guilty' or 'not guilty' in his case has been confirmed by the confirming authority. There is, however, no express provision in the Army Act which empowers the holding of a fresh court- martial when the finding of a court-martial on revision is not confirmed.

xx xx xx

15. This being the position, what then is the course open to the Central Government or the Chief of the Army Staff when the finding of a court-martial even on revision is perverse or against the weight of evidence on record? The High Court in its judgment under appeal has also held that in O.A.70 of 2011 & 118 of 2013 - 20 -

such a case a fresh trial by another court-martial is not permissible. The crucial question, therefore, is whether the Central Government or the Chief of the Army Staff can have resort to Rule 14 of the Army Rules. Though it is open to the Central Government or the Chief of the Army Staff to have recourse to that rule in the first instance without directing trial by a court-martial of the concerned officer, there is no provision in the Army Act or in Rule 14 or any of the other rules of the Army Rules which prohibits the Central Government or the Chief of the Army Staff from resorting in such a case to Rule 14. Can it, however, be said that in such a case a trial by a court-martial is inexpedient or impracticable? The Shorter Oxford English Dictionary, Third Edition, defines the word 'inexpedient' as meaning “not expedient; disadvantageous in the circumstances, unadvisable, impolitic”. The same dictionary defines 'expedient' inter alia as meaning “advantageous; fit, proper, or suitable to the circumstances of the case.” Webster's Third New International Dictionary also defines the term 'expedient' inter alia as meaning “characterized by suitability, practicality, and efficiency in achieving a particular end: fit, proper, or advantageous under the circumstances”.

16. In the present case, the Chief of the Army Staff had, on the one hand, the finding of a general court-martial which had not been confirmed and the Chief of the Army Staff was of the opinion that the further retention of the respondent in the service was undesirable and, on the other hand, there were the above three High Court decisions and the point was not concluded by a definitive pronouncement O.A.70 of 2011 & 118 of 2013 - 21 -

of this Court. In such circumstances, to order a fresh trial by a court-martial could certainly be said to be both inexpedient and impracticable and the only expedient and practicable course, therefore, open to the Chief of the Army Staff would be to take action against the respondent under Rule 14, which he did. The action of the Chief of the Army Staff in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarranted in law.”

17. Apparently, in Kukrety's case, the Apex Court upheld the powers of the Chief of the Army Staff to dismiss an officer under

Army Rule 14 on the basis of the facts, which were the subject matter of the GCM, on the ground that due to difference of opinion between the Court Martial on the one hand and the Confirming Authority on the other no logical conclusion had come. So on that basis, the Apex

Court held that a fresh trial by a Court-martial was inexpedient and impracticable and the only expedient and practicable course open to the Chief of the Army Staff was to take action under the Army Act

Section 19 read with Army Rule 14. Accordingly the Apex Court upheld the action of the Chief of the Army Staff.

18. It is significant that Section 19 of the Act provides for dismissal or removal from service of any person subject the said Act. O.A.70 of 2011 & 118 of 2013 - 22 -

The power to dismiss or remove has been conferred on the Central

Government. Army Rule 14 has been made to regulate the matter of dismissal or removal under Section 19 of the Act. Army Rule

14(2) empowers the Central Government and the Chief of the Army

Staff to issue show cause notice to an officer regarding his misconduct if the Central Government or the Chief of the Army Staff is satisfied that the trial of the officer by the Court-martial is inexpedient or impracticable and his further retention in service is undesirable. Army Rule 14(2), being relevant, is reproduced as follows:

“14(2) When after considering the reports on an officer's misconduct, the Central Government or the Chief of the Army Staff is satisfied that the trial of the officer by a court-martial is inexpedient or impracticable, but is of the opinion, that the further retention of the said officer in the service is undesirable, the Chief of the Army Staff shall so inform the officer together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence: O.A.70 of 2011 & 118 of 2013 - 23 -

Provided that the Chief of the Army Staff may withhold from disclosure any such report or portion thereof if, in his opinion, its disclosure is not in the interest of the security of the State.

In the event of the explanation of the officer being considered unsatisfactory by the Chief of the Army Staff, or when so directed by the Central Government, and the recommendation of the Chief of the Army Staff as to the termination of the officer's service in the manner specified in sub-rule (4).”

19. It is remarkable that the expression “when ….. the

Central Government or the Chief of the Army Staff is satisfied that the trial of the officer by a court-martial is inexpedient or impracticable” appearing in Army Rule 14(2) is missing in Rule

17. But this difference does not appear to have much relevance. The philosophy behind the decision in Kukrety's case was to recognise the powers of the Chief of the Army Staff to enforce discipline in the Army and to punish the wrong doer in exercise of his independent power conferred on him by O.A.70 of 2011 & 118 of 2013 - 24 - issuing show cause notice to the delinquent. Army Rule 17 is almost synonymous to Army Rule 14 so far as the issue of show cause notice and passing of dismissal or removal order against the delinquent is concerned. In this view of the matter, the independent power of the

Chief of the Army Staff exercisable by him under Section 20 of the

Act read with Rule 17 cannot be restricted only on the ground that there had been a trial of the individual by a Court Martial but nothing could be done due to difference of opinion between the Court and the Confirming Authority. In such situation, the charge, if no proceeding under Section 20 of the Act is initiated would go without punishment. In this view of the matter, the basic principles which are inherent, evolved by the Apex Court in Kukrety's case (supra) can be appropriately applied in the matter of Army personnel other than officers. The position would have been different if the GCM had inflicted punishment against the applicant for the charges levelled against him. So in that matter, it was not possible to initiate any action again under Section 20 of the Act in respect of the same charge. In our view, Kukrety's case (supra), is attracted in the present matters. O.A.70 of 2011 & 118 of 2013 - 25 -

20. The next decision relied upon by the learned counsel for the respondents is Union of India and others v. Harjeet Singh

Sandhu (2001) 5 SCC 593. In that case, two Special Leave

Petitions were heard and decided by a common order dated 11th April

2001. In S.L.P.No. 5155 of 1998 (Civil Appeal No. 2721 of 2001), the

GCM was convened to try the respondent therein along with other officers. The GCM found them guilty and accordingly awarded sentence of forfeiture of three years' service for the purpose of promotion and severe reprimand to the respondent therein. The

Confirming Authority found that the sentence was inadequate, so referred back the matter to the GCM for revision. The GCM, after revision, modified the sentence and awarded the punishment of forfeiture of three years' service for the purpose of promotion and also for the purpose of pay and pension. The Chief of the Army Staff took cognizance of the matter and annulled the GCM proceedings on the ground that the same were unjust. He did so in exercise of the powers conferred on him by Section 165 of the Act. After that, the

Chief of the Army Staff initiated a proceeding against the respondent therein under the Act Section 19 read with Rule 14. O.A.70 of 2011 & 118 of 2013 - 26 -

21. In S.L.P.No. 3233 of 2000 ( Civil Appeal No.2722 of 2001), the officer therein was found blameworthy for discrepancies in respect of stacks in Fuel Petroleum Depot, consequently summary of evidence was recorded and order to convene the GCM was passed, but the charged officer filed Writ Petition under Article 32 of the

Constitution of India and obtained an interim order. Resultantly, the

GCM proceedings were stayed. Ultimately, the Writ Petition was dismissed and the interim order stood vacated and the respondent was informed the date of convening of the GCM. But the Chief of the

Army Staff, in exercise of the powers conferred on him under Army

Act Section 19 read with Rule 14, issued show cause notice to the respondent therein and proceeded accordingly. Immediately the respondent therein filed a Writ Petition in the High Court of Delhi submitting that the GCM proceedings having become barred by limitation on account of lapse of three years from the date of the offence, the notice issued to him was without jurisdiction.

22. In both the matters, the Chief of the Army Staff, in exercise of the powers conferred on him by Section 19 of the Act read with Army Rule 14 formed the opinion that the retention of the respondents therein in service was not desirable, so he passed the O.A.70 of 2011 & 118 of 2013 - 27 - order of dismissal. The power of the Chief of the Army Staff to initiate proceedings Section 19 of the Act read with Army Rule 14 was questioned in the aforesaid case of Harjeet Singh Sandhu.

In that case, the Apex Court, while reiterating the principles laid down in Kukrety's case (supra), inter alia, held that if once the finding and sentence of the Court Martial is confirmed by the

Confirming Authority, it is not permissible to exercise the additional power under Section 19 of the Act read with Army Rule 14 and the same would be violative of the principles of double jeopardy. So long as the final verdict of guilty or not guilty pronounced by the Court- martial and confirmed by the competent authority is not available, the power to proceed under Section 19 of the Act read with Army

Rule 14(2) exists and remains available for being exercised. The

Apex Court further proceeded to observe in paragraph 39 that the delinquent cannot be allowed to escape the consequences of his misconduct solely because the court-martial proceedings have been adjudged illegal or unjust for the second time. The relevant observations made in paragraphs 27 and 39 are reproduced as follows:

“27. …...... An obligation is cast on the confirming authority to examine the legality and justness of the O.A.70 of 2011 & 118 of 2013 - 28 -

proceedings before confirming them. Questions of correctness, legality and propriety of the order passed by any Court Martial and the regularity of any proceedings to which the order of Court Martial relates can be raised by way of petition under Sections 164. Once the finding and the sentence, if any have been confirmed, the court martial being a special tribunal dispensing military justice, it would not be permissible to exercise additionally the power conferred by Section 19 read with Rule 14 and to inflict a penalty thereunder if the court has not chosen to inflict the same by way of punishment under Section 71. To permit such a course would be violative of the principle of double jeopardy and would also be subversive of the efficacy of the court martial proceedings, finding and sentence. So long as final verdict of guilty or not guilty, pronounced by court martial and confirmed by competent authority so as to be effective is not available, the power to proceed under Section 19 read with Rule 14(2) exists and remains available to be exercised.

Xx xx xx xx

“39. The finding and sentence of the Court Martial are ineffective unless confirmed by the confirming authority. The Act does not contemplate that the finding and sentence of a Court Martial must necessarily be confirmed merely because they have been returned for the second time. Section 165 vests power in the Central Government, the Chief of the Army Staff and any prescribed officer, as the case may be, to annul the proceedings of any Court Martial if O.A.70 of 2011 & 118 of 2013 - 29 -

the same are found to be illegal or unjust. The delinquent officer cannot be allowed to escape the consequences of his misconduct solely because court-martial proceedings have been adjudged illegal or unjust for the second time. The power under Section 19 read with Rule 14 shall be available to be exercised in such a case though in an individual case the exercise of power may be vitiated as an abuse of power.”

23. For the reasons discussed above, we hold that no delinquent Army personnel can be allowed to escape the consequences of his misconduct solely because the court-martial proceedings could not culminate to any logical conclusion due to the difference of opinion between the Court and the Confirming Authority.

In such situation, the Chief of the Army Staff is quite competent to invoke the power conferred on him by Army Act Section 20 read with Army Rule 17 or Army Act Section 19 read with Army Rule 14, as the case may be, which happens to be an independent power in the form of an alternative forum to deal with disciplinary matters against any Army personnel. But as and when the Chief of the Army Staff proceeds in exercise of such power, he has to examine the matter fairly and independently without being influenced by the observations of the Court Martial or the Confirming Authority and after perusing the entire materials he has to form his own independent opinion on O.A.70 of 2011 & 118 of 2013 - 30 - the basis of the evidence on record. He is not supposed to exercise his power whimsically or arbitrarily, especially when, he being the highest authority of the Army, has not only to maintain discipline in the Army, but also to provide adequate protection and safety to his subordinates so that they may discharge their duties and responsibilities fearlessly to the utmost satisfaction of the Nation.

24. Now we have to examine the legality of the show cause notice, Annexure A23, and the proceedings done in pursuance thereof. A copy of the show cause notice is on the record of O.A.No.

70 of 2011 as Annexure A23. Paragraph 1 of the notice had disclosed the applicant's posting during the relevant period.

Paragraph 2 of the notice had disclosed the factum of his trial by the

GCM on the charges already indicated in paragraph 3 of the instant order. Paragraph 3 of the notice had disclosed the verdict of the

GCM as 'not guilty' on the first charge and 'guilty' to the second charge. This paragraph further elaborated the punishment inflicted by the GCM on the second charge. Paragraph 4 had referred to the views of the GOC-in-C, who had not confirmed the finding of the GCM on the first charge and the quantum of punishment on the second charge. Paragraph 5 of the notice disclosed the fact O.A.70 of 2011 & 118 of 2013 - 31 - that a careful and holistic analysis of the evidence contained in the GCM proceedings revealed that there was cogent and reliable evidence on record against the applicant, which established his blameworthiness. Paragraph 5 of the notice, being relevant, is reproduced as follows:

“5. AND WHEREAS, a careful and holistic analysis of the evidence contained in the General Court Martial proceedings reveals that there is cogent and reliable evidence on record against you, which establishes your blameworthiness.”

25. In paragraph 6 of the notice it was disclosed that further trial by the GCM was inexpedient and impracticable. This paragraph next disclosed that the acts committed by the applicant involved moral turpitude. More so, he stood convicted on the second charge.

Paragraph 6 of the notice, being relevant, is reproduced as follows:

“6. AND WHEREAS, your further trial by General Court Martial is inexpedient and impracticable. It is further well established that this act, which involves moral turpitude, was committed by you and also you stand convicted on the second charge.” O.A.70 of 2011 & 118 of 2013 - 32 -

26. Paragraph 7 of the notice disclosed that the facts of the case were placed before the Chief of the Army Staff, who examined all aspects of the case and was of the opinion that considering the nature and gravity of the offence committed by the applicant, his further retention in service was not desirable. Paragraph 7 of the notice is also reproduced as follows:

“7. AND WHEREAS, the facts of the case were placed before the Chief of the Army Staff who examined all aspects of the case and is of the opinion that considering the nature and gravity of the offence committed by you, your further retention in service is not desirable.”

27. By paragraph 8 of the notice, the applicant was required to show cause as to why his services should not be terminated under the provisions of Army Act Section 20(1) read with Army Rule 17 and in conjunction with Para 423 of Regulations for the Army (Edition

1987). The applicant was accordingly granted 30 days' time from the date of receipt of the show cause notice to submit his replies.

Paragraph 8 of the notice, being relevant, is reproduced as follows:

“8. NOW THEREFORE, in accordance with the directions of the Chief of the Army Staff, you are hereby called upon to show cause as to why your services should not be terminated under the provisions of Army Act Section O.A.70 of 2011 & 118 of 2013 - 33 -

20(1) read with Army Rule 17 and in conjunction with Para 423 of Regulations for the Army (Edition 1987), for the aforesaid misconduct on your part. Your reply, if any, should be submitted within 30 days from the date of receipt of this Show Cause Notice, failing which it shall be assumed that you have no grounds to urge in your defence and action as deemed appropriate will be taken.”

28. Paragraph 9 of the notice next disclosed the fact that the copies of the GCM proceedings and revision proceedings had already been handed over to the applicant on 13th November 2008 and 22nd

March 2010 respectively along with all the exhibits pertaining thereto.

The show cause notice was signed by A.S. Panwar, Deputy

Director General (Vigilance) posted at that time in the Integrated

Headquarters of MOD (Army).

29. It is, therefore, evident that not only the charges, for which the GCM tried the applicant, but also the materials/evidences collected during the trial by the GCM had been made as the basis to issue the show cause notice to the applicant. The findings of the

Confirming Authority had also influenced the Chief of the Army Staff to invoke Section 20 of the Army Act against the applicant. Nothing O.A.70 of 2011 & 118 of 2013 - 34 - more, nothing new, beyond the materials available on the record of the proceedings of the GCM, had been made as the basis for issue of the show cause notice.

30. The applicant submitted a detailed reply vide Annexure

A24 to the show cause notice and thereby denied the allegation that he demanded money from Gurpreet Singh for his recruitment in the

Army. He further denied recovery of currency notes from his possession. While denying so, he stated that the whole story was managed by Lt Col Jagnar Singh and Sub MS Yadav. He even denied recovery of ammunition from his residence. He further admitted the story of raid at his house, but stated that after about half an hour some more military intelligence people in civil entered into his house carrying a white polythene bag. He next stated that during the search he was sitting in the drawing room with Lt. Col S.K. Singh, who was the Presiding Officer of the Board of Officers. Lt Col Jagnar

Singh prepared fake story of recovery of currency notes and ammunitions from his possession and he did so in the evening by taking advantage of darkness. The next important reply made on behalf of the applicant was that the main witness, Gurpreet Singh, was not examined during the GCM, who was the most important O.A.70 of 2011 & 118 of 2013 - 35 - witness of the factum of demand of illegal gratification from him for recruitment, and payment thereof. It was next stated that the allegedly recovered ammunitions produced before the Court were found not as live ammunitions. So, taking into account all these aspects of the matter, the GCM announced a minor penalty on charge No.2.

31. In paragraphs 10, 11, 12 and 13 of the reply to the show cause notice the applicant referred to certain decisions of the Apex

Court and High Courts to show that the charges levelled against him were liable to be proved beyond all reasonable doubts, and the benefit of suspicion, if any, was liable to be given to him. In paragraph 15 of the reply, he had challenged the advice of Dy Judge

Advocate General Western Command. He further stated that the show cause notice was not based on actual record of deposition of witnesses, especially, Lt Col Jagnar Singh, Lt Col SK Singh, Sub

Kundu, Sub Rajan and Sub MP Dharamvir.

32. The Chief of the Amy Staff rendered the final order on 1st

June 2011, a copy whereof is on record as Annexure A28.

Paragraphs 1 to 4 of the order, Annexure A28, pertain to sequence of O.A.70 of 2011 & 118 of 2013 - 36 - events upto the stage of issuing the show cause notice. Paragraph 5 of the order disclosed the facts relating to service of notice to the applicant. Paragraph 6 of the order, which is the main part of the order, disclosed that the reply submitted by the applicant had been considered in the light of the relevant documents. The Chief of the

Army Staff overruled the applicant's contention that the prosecution did not examine Gurpreet Singh with malafide intention. He further found that the record had revealed that the prosecution could not have examined Gurpreet Singh since he had died. The Chief of the

Army Staff further opined that notwithstanding non-availability of

Gurpreet Singh, there was ample and independent evidence available on record to substantiate the first charge. This is all he recorded with regard to Charge No.1. The Chief of the Army Staff proceeded further and held that the applicant was found guilty of the second charge. Accordingly, he was of the view that the nature and gravity of the offence of unauthorised possession of prohibited ammunition had a bearing on the law and order in the society, security of the

State and was also in violation of military discipline. Hence he found that the retention of such person in service was not desirable.

Paragraph 6 of the order, being relevant, is reproduced as follows: O.A.70 of 2011 & 118 of 2013 - 37 -

“6. AND WHEREAS, the reply submitted by JC- 459291W Naib Subedar (Clerk) Sajeev Mohan K has been considered in the light of the relevant documents. His contention that the prosecution did not examine Sri Gurpreet Singh with malafide intention is not correct. In fact the record reveals that the prosecution could not have examined him since he had died. Notwithstanding his non-availability, there is ample and independent evidence available on record to substantiate the first charge. Further he was found guilty of the second charge. The nature and gravity of the offence of unauthorised possession of prohibited ammunition has a bearing on law and order in society, security of state and directly violate military discipline. Hence retention of such person in service is not desirable.”

33. As per paragraph 7 of the order, Annexure A28, the Chief of the Army Staff passed the order of dismissal against the applicant on the basis of the nature and gravity of the misconduct committed by him, including availability of direct, circumstantial and documentary evidence against him. Paragraph 7, being relevant, is also reproduced as follows:

“7. NOW THEREFORE, considering the nature of gravity of the misconduct and direct, circumstantial and documentary evidence on record, in accordance with the powers vested in O.A.70 of 2011 & 118 of 2013 - 38 -

me under Army Act Section 20(1) read with Army Rule 17 and Para 423 of Regulations for the Army, 1987, I hereby order dismissal from the service of JC-459291W Nb Sub Sajeev Mohan K.”

34. The Chief of the Army Staff, therefore, found charge No.1 proved against the applicant on the ground that notwithstanding non- examination of Gurpreet Singh, there had been other adequate evidence to prove the charge. But he has not indicated as to what were the other evidences available on record. So the observations of the Chief of the Army Staff that there were other evidences against the applicant was nothing except a sweeping observation disclosing no evidence specifically. So far as non-examination of Gurpreet Singh is concerned, the Chief of the Army Staff opined that he had died. If he had died and due to that reason he could not be examined during the GCM, how this aspect would be treated in favour of the prosecution. It is quite relevant to indicate that Gurpreet Singh was not interrogated at any point of time, either at the stage of Court of

Inquiry or summary of evidence and additional summary of evidence.

There was not even a written complaint of the said Gurpreet Singh that the applicant had demanded Rs.5,000/- from him for his enrolment in the Army. So non-examination of Gurpreet Singh O.A.70 of 2011 & 118 of 2013 - 39 - during the GCM trial due to any reason was a material omission on the part of the prosecution, which ought not to have been overlooked by the Chief of the Army Staff while passing the impugned order.

35. The first charge, which related to violation of Section

64(e) of the Act, could be said to have been proved only when it was proved beyond all reasonable doubts that the applicant accepted or obtained the gratification of Rs.5,000/- as a motive or reward for procuring enrolment of Gurpreet Singh in the . Section

64(e) of the Act, which appears to be in pari materia with Section 7 read with Section 13 of the Prevention of Corruption of Act, 1988 to certain extent, makes any person subject to the Army Act, who directly or indirectly accepts or obtains, or agrees to accept or attempts to obtain, for himself or for any other person, any gratification as a motive or reward for procuring the enrolment of any person, or leave of absence, promotion or any other advantage or indulgence for any person in the service, on conviction by court- martial, liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in the Army Act mentioned.

What was, therefore, required to be proved was that the applicant O.A.70 of 2011 & 118 of 2013 - 40 - accepted or obtained the gratification of Rs.5,000/- as a motive/reward from Gurpreet Singh for procuring his enrolment in the Indian Army, before holding him guilty of the charge No.1.

36. The complainant, Gurpreet Singh, was the sole witness to prove the fact that the applicant demanded and accepted Rs.5,000/- from him for his enrolment in the Army. There was no other witness or evidence to prove this fact. When Gurpreet Singh was not examined during the court martial proceedings and his presence could not be ensured either due to his death or non-availability of his whereabouts even after revision, we fail to understand as to how it could be held that the applicant demanded and accepted the gratification of Rs.5,000/- from Gurpreet Singh as a motive or reward for procuring his enrolment in the Army, especially when there was no other evidence to prove this fact. This appears to be the main reason for the GCM to exonerate the applicant from the Charge

No.1. The Chief of the Army Staff seems to have overlooked this material aspect of the matter, while passing the impugned order.

37. The other aspect that compelled the Chief of the Army

Staff to hold that Charge No.1 was proved beyond all reasonable O.A.70 of 2011 & 118 of 2013 - 41 - doubts was that there was other evidence on record against him.

So, on that basis he concluded that the charge was proved. What was the other evidence, it has not been indicated by the Chief of the

Army Staff. But we ourselves perused the record to find out as to what was the other evidence against the applicant. PW5, Subedar

Dharamvir, seems to have proved recovery of Rs.5,000/- from the possession of the applicant. His evidence was allegedly corroborated by the evidence of PW3, Naib Subedar Kundu and PW4, Lt Col S.K.

Singh. It is also alleged that Lt Col S.K. Singh had made his initials on all the currency notes each of Rs.500/- denomination, which was given to Gurpreet Singh for handing over to the applicant. The said

Gurpreet Singh was seen by PW7, Lt Col Jaganar Singh and PW9,

Havildar Gautam Sumar Jha, entering inside the house of the applicant. There is one more evidence to the effect that Gurpreet

Singh after coming out from the house of the applicant informed that he had given the money to the applicant. This is all that can be said to be the other evidence against the applicant. But there is no direct evidence to prove as to what talks took place between

Gurpreet Singh and the applicant inside the house and as to how and for what purpose the money passed from Gurpreet Singh to the applicant. O.A.70 of 2011 & 118 of 2013 - 42 -

38. The question that arises for our consideration is whether the charge under Section 64(e) of the Act could be held to be proved only on the basis of the evidence that Gurpreet Singh entered into the house of the applicant and came back therefrom without money saying that the same was given to the applicant. The next question that arises for our consideration is whether the mere recovery of

Rs.5,000/- from the possession of the applicant could be made as the sole basis to hold that the charge stood proved against him.

39. In Suraj Mal v. Delhi Administration (1979) 4

SCC 725, the Apex Court held that the mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. This principle was reiterated in the matter of C.M. Girish

Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779.

Paragraph 20 of the decision rendered in C.M. Girish Babu's case being relevant, is reproduced as follows:

“20. A three-Judge Bench in M.Narsinga Rao v. State of A.P. (2001) 1 SCC 691 while dealing with the O.A.70 of 2011 & 118 of 2013 - 43 -

contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: (SCC p.700, para 24).

“24. …. we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra (2000) 8 SCC 571). The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel.

“12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted “as motive or reward” for doing or forbearing to do any official act. So the word “gratification” need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. O.A.70 of 2011 & 118 of 2013 - 44 -

This will again be fortified by looking at the collocation of two expressions adjacent to each other like “gratification or any valuable thing.” If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word ”gratification” must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.”

40. In C.M. Sharma v. State of Andhra Pradesh (2010)

15 SCC 1 (paragraph 15), the Apex Court again reiterated the principle that mere recovery is not sufficient to prove the charge of giving and taking of bribe or illegal gratification. In the case of State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede

(2009) 15 SCC 200, the Apex Court held that demand of illegal gratification is sine qua non for constituting an offence under the provisions of the Prevention of Corruption Act, 1988. While taking into account the presumption that could be raised against the accused in terms of Section 20 of the said Act, the Apex Court further opined that the standard of burden of proof on the accused vis-a-vis that on the prosecution would differ. Before the accused is called O.A.70 of 2011 & 118 of 2013 - 45 - upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the aforesaid Act of 1988, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubts. This preposition has been laid down on the premise that there is a specific provision in Section 20 of the Prevention of Corruption Act, 1988 for raising of presumption against the accused on proof of the facts specified in Section 20. One of the facts for raising of such presumption is acceptance of any gratification or any other valuable thing by the accused from any person. So unless acceptance of gratification by the accused is proved, no presumption, only on the basis of recovery of money, can be raised under Section 20 of the Act of 1988. More so, no provision in the Army Act or the Rules made thereunder, which could be said to be synonymous to Section 20 of the Prevention of Corruption

Act, 1988, was brought to our notice, so no presumption could be raised against the applicant in terms of Section 20 of the said Act of 1988.

In this view of the matter, it is quite unsafe to hold that the applicant accepted Rs.5,000/- as gratification for enrolment of Gurpreet Singh in the

Indian Army only on the basis of the alleged recovery of Rs.5,000/- from his possession. O.A.70 of 2011 & 118 of 2013 - 46 -

41. More so, the applicant seems to have given his explanations through his unsworn statement, Exhibit 40, to the effect that a person had come to his house, who asked for a glass of water and went away after giving a blank call from his mobile. He did not give any reply to the query as to for what purpose he visited his house. Apart from this, the applicant had stated during the summary of evidence, Exhibit 10, that the person, who had entered into his house, after drinking water, took out currency notes of

Rs.500/- denomination from his wallet and told him to take the money. He then folded his hands and told him to go from his house and come to the BRO next day. He again forced to take the money.

But he told him “no, why you were giving me money.” After that he got up and kept the amount folded in his lungie, but he instead of taking the money went away quickly. It is thus evident that at the stage of summary of evidence, the applicant had explained as to how the recovered money came in his possession. According to him, the person who had entered in his house kept the money on his lungie and quickly went away without explaining how the money was being paid. In our view, in absence of any evidence of Gurpreet

Singh to the contrary regarding the demand and acceptance of illegal gratification by the applicant from him, the probability of the O.A.70 of 2011 & 118 of 2013 - 47 - aforesaid explanation offered by the applicant could not be ruled out.

As such mere recovery of Rs.5,000/- from the applicant could not be taken as the basis to hold that the charge No.1 under Section

64(e) of the Act was proved beyond all reasonable doubs, especially when the story of demand and acceptance of gratification by the applicant was not established in any way from the evidence on record.

42. It was argued on behalf of the respondents with the aid of the principles laid down by the Apex Court in Harjeet Singh

Sandhu's case (supra), paragraph 42, that the power of judicial review is very limited, which could be exercised in a case where the decision has been vitiated by malafides or is found to be based wholly on extraneous and/or irrelevant grounds or is found to be a clear case of colourable exercise of/or abuse of power or what is sometimes called fraud on power. The power of judicial review, according to the learned counsel for the respondents, could not be extended to upset a finding of fact on the merits of the case. In our view, the aforesaid observations of the Apex Court are based on the powers exercisable by the High Courts and the Supreme Court under the Constitution of India which do not extend to cover the power of O.A.70 of 2011 & 118 of 2013 - 48 - the Armed Forces Tribunal, which has been established under the

Armed Forces Tribunals Act, 2007, hereinafter referred to as the Act of 2007, for the adjudication or trial of disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, 1950, the Navy

Act, 1957 and the Air Force Act, 1950 and also for appeals arising out of orders, findings or sentences of courts martial held under the said Acts and for matters connected therewith or incidental thereto.

Section 14 of the Act of 2007 has conferred jurisdiction, powers and authority on the Armed Forces Tribunal in reation to all service matters as defined in section 3(o) of the Act of 2007. Sub section

(5) of the said section 14 empowers the Armed Forces Tribunal to decide both questions of law and facts that may be raised before it.

Even in appeal matters under Section 15 of the Act of 2007, the

Armed Forces Tribunal has power to enter into the question of facts.

The Armed Forces Tribunal, being a statutory creation, is not only to consider the question of law, but also the question of facts as and when raised in any case. In this view of the matter, the aforesaid observation of the Apex Court in Harjeet Singh Sandhu's case

(supra) is of no help to the respondents. In our view, this Tribunal has power of judicial review even to upset a finding of fact. O.A.70 of 2011 & 118 of 2013 - 49 -

43. For the reasons stated herein before, we arrive at the conclusion that the finding of the Chief of the Army Staff that there was ample and independent evidence available on record to substantiate the first charge, has no support of any legal evidence and is based on surmises and conjunctures. Even merely on the basis of the alleged recovery of Rs.5,000/- from the applicant without any evidence of actual acceptance of the money as gratification for the enrolment of Gurpreet Singh, it could not be held that Charge

No.1 was proved against the applicant. In this view of the matter the finding of the Chief of the Army Staff on charge No.1, being not only illegal but also contrary to the evidence on record, is liable to be quashed.

44. So far as the Charge No.2 is concerned, the observations of the Chief of the Army Staff that the applicant was found in possession of certain prohibited ammunitions, appears to have support of the legal evidence on record. Even the GCM as also the

Confirming Authority had arrived at the same conclusion. We have ourselves perused the entire evidence on record and are of the view that the ammunitions described in Charge No.2 were recovered from O.A.70 of 2011 & 118 of 2013 - 50 - the house of the applicant. The learned counsel for the applicant could not point out any infirmity in the evidence relating to the recovery of ammunitions. The GCM, the Confirming Authority and the Chief of the Army Staff formed the same opinion that the charge

No.2 was proved beyond all reasonable doubts against the applicant.

In this connection the learned counsel for the applicant contended that according to the respondents four rounds of cartridges 5.56 mm

INSAS were recovered from the possession of the applicant. But only two of them were live. He next contended that the ammunitions blank round 7.62 mm (1 round), Extracted live bullet (7.62 mm) (63 round) and hand grenade o1 (Drill practice) were also not live ammunitions. The learned counsel for the respondents could not rebut this submission and failed to show as to how these items were live ammunitions. But this much circumstance cannot be taken as a ground to exonerate the applicant from the entire charge No.2 because all other ammunitions recovered from his possession were live, which had been kept by him in contravention of Section 25 (1-A) of the Arms Act, 1959. In this view of the matter, we uphold the finding that Charge No.2 was proved beyond all reasonable doubts and to this extent the applicant's case has no merit. O.A.70 of 2011 & 118 of 2013 - 51 -

45. The sentence of dismissal seems to have been passed on the premise that both the charge Nos. 1 and 2 were proved beyond all reasonable doubts, which compelled the Chief of the Army Staff to arrive at the conclusion that the misconduct committed by the applicant was quite serious and as such his retention in service was not proper. But the position is slightly different. We have found that the Charge No.1 was not proved beyond all reasonable doubts against the applicant.

Even with regard to Charge No.2 certain ammunitions as specified here before were not live. So the gravity of the misconduct stood reduced to certain material extent. The learned counsel for the applicant tried to contend that the ammunitions had been kept by the applicant with the intent of making them show pieces. He had even stated so during the summary of evidence before Lt Col Rajesh

Sharma. The learned counsel for the applicant next contended that in the field firing area, where Army personnel carry out firing practice, bullets, cartridges and grenades both live and fired are often found lying after the firing is over and most of them collect such items in a routine manner for keeping them as show pieces, so the observations of the Chief of the Army Staff that the possession of ammunitions by the applicant was a threat to the security of the

State and had a bearing on the law and order, was not correct. O.A.70 of 2011 & 118 of 2013 - 52 -

46. In our view, the aforesaid submission has sufficient merit.

The punishment must be commensurate with the charge. The Chief of the Army Staff passed the sentence of dismissal from service on the premise that both the charges were proved. But when the

Charge No.1 was not proved and Charge No.2 related to only a part of the recovered ammunitions, the sentence of dismissal cannot be said to be justified. In our view, the sentence of dismissal from service is liable to be modified, especially when the applicant had already rendered a pensionable service and had so many liabilities to discharge and also there had not been any other misconduct on his part prior to the incident in question. Ordinarily the question of sentence, in such matters, as far as possible should be be referred back to the Army Authorities for a fresh determination. But in view of the fact that the incident is of the year 2005 and since then more than nine years have elapsed, we, instead of referring the matter again for the determination of the sentence by the Army Authorities, consider it just and expedient to pass appropriate sentence keeping in view the nature of the proved charge. In our view, the ends of justice would be met if the sentence of dismissal from service is converted to the sentence of reduction to the rank of coupled with simplicitor discharge from the Army service from that rank. O.A.70 of 2011 & 118 of 2013 - 53 -

47. Original Application, (O.A.No. 70 of 2011), is partly allowed. The order of the Chief of the Army Staff, Annexure A28 dated 1st June, 2011, holding the applicant guilty of charge No.1 is quashed. Accordingly, the applicant, Sajeev Mohan K., is acquitted of charge No.1. The order of the Chief of the Army Staff holding the applicant guilty of Charge No.2 is confirmed. The sentence of dismissal of the applicant from service is modified with the punishment of his reduction to the rank of Havildar. Accordingly the respondents are directed to reinstate the applicant in service in the rank of Havildar with effect from the date his dismissal from the service had been implemented under the order of the Chief of the

Army Staff and to discharge him the same day from the Army service with all consequential pensionary and other retiral benefits admissible as per the Rules to the rank of Havildar. The respondents are directed to pay the entire arrears of pensionary and other retiral benefits, if any, payable to the applicant as per the rules within four months from today, failing which the unpaid amount will carry a simple interest at the rate of 8% per annum. O.A.70 of 2011 & 118 of 2013 - 54 -

48. The other Original Application, O.A.No. 118 of 2011, also

stands disposed of accordingly.

49. There will be no order as to costs.

50. Issue free copy of this order to both sides.

Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J)

51. After pronouncement of the order, Mr.K.M.Jamaludheen

appearing for the respondents prayed for grant of leave to appeal to

the Supreme Court.

52. In our view, no point of law of general public importance is

involved in the matter, therefore, leave prayed for is refused.

Sd/- Sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J) tm.

/True Copy/

Prl. Private Secretary O.A.70 of 2011 & 118 of 2013 - 55 -

The learned counsel for the applicant next contended that in the field firing area, where Army personnel carry out firing practice, bullets, cartridges and grenades both live and fired are often found lying after the firing is over, so most O.A.70 of 2011 & 118 of 2013 - 56 -

order to bring a charge within the four corners of Section 64(e) of the Army Act, it must be proved that the accused directly or indirectly accepted or obtained any gratification as a motive/reward for procuring any of the aforesaid advantages or indulgence for any person in service. He can also be held guilty under the said section if he, instead of accepting or obtaining the gratification in the aforesaid manner, has merely agreed to accept the same or in any way attempted to obtain the same. If any of these ingredients is missing in any case, the charge cannot be said to have been proved and in that eventuality, the accused cannot be held to be guilty. The instant case needs to be examined in the backdrop of this legal position emerged out on reading Section 64(e) of the Army Act as explained above. The GCM recorded the finding that the charge No.1 was not proved beyond all reasonable doubts against the applicant on the basis of the reasonings disclosed from pages 613 to 628.

35. One of the main reasons to exonerate the applicant from O.A.70 of 2011 & 118 of 2013 - 57 - this charge was that the prosecution did not request to procure attendance of Gurpreet Singh nor took adequate steps to procure his attendance. In view of the fact that the said Gurpreet Singh had allegedly given the gratification of Rs.5,000/- to the applicant for obtaining his enrolment in the Army, he was the most important witness of the factum of giving of gratification by him and acceptance of the same by the applicant. So, on this point, the

GCM concluded the matter that this most important link of the evidence was missing. So charge No.1 was not proved beyond all reasonable doubts. The GCM further disclosed the reason that other witnesses, particularly PW7, Lt Col Jaganar Singh and PW9, Hav

Gautham Kumar Jha, were not witnesses of giving and taking of illegal gratification. They are alleged to have stated the fact that the aforesaid Gurpreet Singh went inside the residence of the applicant.

But there was nothing to show as to whether they had seen the incident that the gratification was paid by Gurpreet Singh to the applicant or not. The Court further opined out that whatever statement had been made by Gurpreet Singh to the aforesaid witnesses, either before going to the residence of the applicant or after coming back therefrom, as proved by the said two witnesses had no relevancy. The Confirming Authority did not approve the O.A.70 of 2011 & 118 of 2013 - 58 - finding of the GCM on charge No.1 mainly on the ground hat no proper attempt had been made to procure the main witness

Gurpreet Singh and formed the opinion that even if there was a lacuna in the case due to non-examination of Gurpreet Singh, the other evidence was quite sufficient to warrant the conviction regarding charge No.1. Accordingly, he remanded the matter to the

GCM for reconsideration.

36. The GCM reconsidered thoroughly the matter and reiterated its previous verdict and passed the order vide Annexure

A10 dated 22nd March 2010. The GCM, after receiving back the matter, tried to procure the attendance of Gurpreet Singh, but could not succeed as his whereabouts were not known. So, the position remained the same even after revision so far as non-examination of

Gurpreet Singh is concerned. The GCM reconsidered the evidence of PW7 Lt Col Jaganar Singh, who had allegedly handed over the amount of Rs.5,000/- to Gurpreet Singh for giving to the accused.

The GCM did not believe the statement of PW7 Lt Col Jaganar Singh that he had seen Gurpreet Singh entering into the residence of the accused because there was no corroboration from the deposition of other witnesses. So, the GCM found it unsafe to rely upon the O.A.70 of 2011 & 118 of 2013 - 59 -

testimony of PW7 Jaganar Singh, especially when, according to the

GCM, he was the officer, who planned and co-ordinated the intelligent

operation against the accused. The GCM found contradictions in the

evidence of PW7, Jaganar Singh and PW9, Hav Gautham Kumar Jha.

PW7 had stated that:

“When I came to the No 3 Detachment Western Command IS Group at Ferozepur Cantonment, Havildar Jha was handling the case relating to Head Clerk of Branch Recruiting Office, Ferozepur Cantonment that he is taking money to get the people medically fit for recruitment”.

PW9, Hav Gautham Kumar Jha, on the other hand, deposed that:

“I had not been handling the case relating to Head Clerk of Branch Recruiting Office, Ferozepur Cantonment, i.e. the accused, that he is taking money to get the people medically fit for recruitment”. Not only that, PW9 has also deposed that “I had no inputs as to whether the accused as Head Clerk of Branch Recruiting Office, Ferozepur Cantonment was taking money to get the people medically fit”. O.A.70 of 2011 & 118 of 2013 - 60 -

37. The GCM next indicated that the accused had denied that he accepted the amount of Rs.5,000/- from Gurpreet Singh. So the factum of acceptance of Rs.5,000/- was required to be proved from the evidence of Gurpreet Singh, who was the sole direct witness of the factum of giving and taking of gratification. Accordingly, even after revision, the GCM gave the benefit of doubt to the accused on charge No.1.

38. The Confirming Authority rendered a one line order to the effect that “ I do not confirm the finding of the Court on the first charge.....” without assigning any reason. The Chief of the Army

Staff, despite having a detailed reply of the applicant against the show cause notice, did not give proper consideration for the points raised by him while considering the same on the point of Charge

No.1. In paragraph 6 of the order, the Chief of the Army Staff found that the sole witness, Gurpreet Singh, could not be examined since he had died. He further arrived at the conclusion that notwithstanding non-availability of Gurpreet Singh, there was ample and independent evidence available on record to substantiate the first charge. O.A.70 of 2011 & 118 of 2013 - 61 -

39. First of all, for argument sake, if it is assumed that

Gurpreet Singh could not be examined during the trial as he had died, the benefit of his non-examination will be given to the accused and not to the prosecution. But the Chief of the Army Staff acted against all settled judicial principles in extending the benefit of non- examination of the aforesaid witness to the prosecution. Not only during the trial before the GCM, even during the summary of evidence and the Court of enquiry, Gurpreet Singh was not examined. So there was no statement of the aforesaid witness in writing on record. In this view of the matter, the facts which could be proved by the said Gurpreet Singh alone remained unproved due to his non-examination on account of his death. So, any benefit of this material omission ought to have been given to the applicant. So far as the availability of other independent evidence against the applicant is concerned, the Chief of the Army Staff has not indicated any such evidence specifically. He has not even disclosed the names of the witnesses, who had seen that the applicant accepted gratification from Gurpreet Singh for his enrolment. No witness was examined regarding payment of gratification by Gurpreet Singh and acceptance of the same by the applicant. In absence of this material evidence, we fail to understand as to how the applicant could be O.A.70 of 2011 & 118 of 2013 - 62 - held guilty only on the ground that PW7, Lt Col Jaganar Singh or

PW9, Hav Gautham Kumar Jha had seen Gurpreet Singh entering into the residence of the applicant. Only the evidence of entry of

Gurpreet Singh inside the residence of the applicant is nothing except a corroborative piece of evidence, which in no way can be taken as an evidence regarding payment and acceptance of gratification.

40. It is being argued by the respondents that a sum of

Rs.5,000/- was recovered from the possession of the applicant. So he was under obligation to explain as to how he received the money.

In our view, there could be variety of reasons for the acceptance of money by the applicant from Gurpreet Singh. If it is inferred that the same was paid by him to the applicant, what was required further to be proved is that the money was given to the applicant for procuring the enrolment of Gurpreet Singh in the Army. There is no direct evidence at all on record to show that the money was given for that purpose. There is also contradictory evidence on this point. At some places it has been indicated by the GCM that it was not clear whether Gurpreet Singh had applied for his enrolment or not. At one place it was alleged that the applicant admitted that he had applied for enrolment. In absence of any consistent evidence on this point, O.A.70 of 2011 & 118 of 2013 - 63 - the benefit of this discrepancy should go to the applicant. So it was most proper to hold that it was not proved beyond all reasonable doubts that Gurpreet Singh had applied for his enrolment. We need not emphasis each and every aspect in detail, because the entire reasonings had already been expressed by the GCM in its verdict.

But after an over all scrutiny of the evidence on record, we find that the Chief of the Army Staff overlooked the material omission in the evidence of the prosecution regarding payment and acceptance of gratification, as alleged against the applicant in Charge No.1. The other evidence, after exclusion of the evidence of Mayyappan, was almost silent on this point and the corroborative value thereof was not sufficient to take a different view than the view recorded by the

GCM. More so, the GCM had the opportunity to observe the demeanor of various witnesses and had heard the entire evidence orally. So it was in better position to appreciate the evidence than the other authorities, viz. The Confirming Authority and the Chief of the Army Staff. So, in such matter, the views of the GCM could be upset only when there had been glaring errors on its part resulting in miscarriage of justice in the case. But when the views of the GCM were not unfounded and could be drawn on the basis of the facts and circumstances of the case, neither the Confirming Authority nor the O.A.70 of 2011 & 118 of 2013 - 64 -

Chief of the Army Staff was justified in overruling the views of the

GCM only on the ground that they were all different views, especially when the views expressed by the GCM were not unfounded and had the support of the evidence and circumstances of the case.

41. For the reasons discussed above, we are of the view that the Chief of the Army Staff, while passing the impugned order,

Annexure A23 dated 1st June 2011, overlooked the material evidence and circumstances available on record and recorded the finding of guilt on charge No.1 on altogether incomplete evidence, not proving the entire ingredients of Army Act Section 64(e), due to which a grave injustice was done to the applicant, which needs to be rectified.

The finding of the GCM on Charge No.1 was, therefore, perfectly correct and justified. So, the finding of the Confirming Authority as also the Chief of the Army Staff on the said charge, being on irrelevant considerations, cannot be upheld. O.A.70 of 2011 & 118 of 2013 - 65 -

14. In the matter of S.N.Mukherjee vs. Union of India,

(1990) 4 SCC 594, a Constitution Bench of the Supreme Court inter alia examined the question of necessity of observing the principles of natural justice and recording of reasons by the authority exercising the quasi judicial functions, and held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The requirement of recording reasons for its decision, by an administrative authority exercising quasi judicial functions achieves this object by excluding O.A.70 of 2011 & 118 of 2013 - 66 - chances of arbitrariness and ensuring the degree of fairness in the process of decision making. Accordingly, the Apex Court held that the requirement to record reasons can be regarded as one of the principles of natural justice which governs exercise of power by administrative authorities.

15. Before proceeding further, we would like to indicate that in certain matters 'prejudice' also needs to be proved in addition to breach of natural justice. This principle was propounded in

K.L.Tripathi v. State Bank of India, (1984)1 SCC 43. In that case the Apex Court held that not mere violation of natural justice but also 'de facto prejudice' has to be proved. In some of the decisions, the Apex Court held that the breach of the principles of natural justice was in itself prejudice, so no other 'de facto prejudice' needed to be proved. In the matter of State Bank of vs.

S.K.Sharma, (1996)3 SCC 364, the Apex Court elaborated the principle of “prejudice” after taking into consideration the

Constitution Bench decision of the Apex Court in Managing

Director, ECIL vs. B.Karunakar, (1993) 4 SCC 727 and held that a distinction must be made between “no opportunity” and “no O.A.70 of 2011 & 118 of 2013 - 67 - adequate opportunity”. The Apex Court further proceeded to elaborate the theory to the effect that in cases of “no notice” or

“no hearing”, the order passed would undoubtedly be invalid and one may call the order as void or nullity. But in the matter of “no adequate hearing” or “no fair hearing”, the effect of violation of the natural justice has to be examined from the stand point of prejudice.

27. Mr. K.M. Jamaludheen then relied upon the latest judgment of the Apex Court in Union of Indian & others v. Major S.P.

Sharma & others (Civil Appeal Nos. 2951 – 2957 of 2001 dated 6th March 2014) and contended that the Apex Court held that the President was competent to dismiss an officer on the basis of the doctrine of pleasure as provided under Article 310 of the

Constitution of India. He next contended that in that case, the

Apex Court held that the safeguards available to civil servants under

Article 311 were not available to the defence personnel as the scope of judicial review was very limited. The facts of the said case were almost different from the present case. O.A.70 of 2011 & 118 of 2013 - 68 -

28. In Major S.P. Sharma's case, the officers were involved in espionage activities, which were not in any way in the interest and security of the Nation. An enquiry against the concerned officers were initiated by the Army Headquarters, Director of Military

Intelligence. The file ultimately routed from the Chief of the Army

Staff to the Ministry of Defence with strong recommendation to terminate the services of the officers involved in the aforesaid activities, in the interest of security of the State, as there were adequate materials against them. The Defence Ministry's proposal was approved by the Prime Minister, who also happened to be the

Defence Minister at that point of time. Ultimately, the matter was placed before the for his approval, which His

Excellency approved. In this factual backdrop, the Apex Court found that there were adequate materials to support the order passed by the President of India. The Apex Court further held that the security of the State was involved, which was a quite delicate issue, so the proceedings done and doctrine of pleasure exercised could not be made subject to judicial review. The Apex Court, while laying down so, further held that there is no dispute with regard to the legal proposition that illegality, irrationality and procedural non- compliance are grounds on which judicial review is permissible. But O.A.70 of 2011 & 118 of 2013 - 69 - in view of the Act Section 18 judicial review was permissible only on the ground of malafide. The Apex Court further held that the

Army officers were not entitled to claim opportunity of hearing. The pleasure doctrine could be invoked by the President at any stage on being satisfied that continuance of any officer was not in the interest of security of the State. In our view, the decision of the Apex Court in Major S.P. Sharma's case is based on the facts and circumstances of that case, where the officers whose services had been terminated were involved in espionage activities, which could be a threat to the security of the State. So, the Apex Court applied the doctrine of pleasure and accordingly, without any further opportunity of hearing, especially in view of the fact that adequate materials had been collected during the enquiry, confirmed the order for termination of the services of the concerned officers. The facts of the present case are altogether different. In the present matter, the

Chief of the Army Staff, instead of invoking the doctrine of pleasure, proceeded under the Act Section 20(1) read with Rule 17 against the applicant and accordingly issued the show cause notice calling upon the applicant to furnish his explanations, if any. Obviously the

Chief of the Army Staff did not proceed to dismiss the applicant from service straight way on the strength of the doctrine of pleasure, O.A.70 of 2011 & 118 of 2013 - 70 - so the decision of the Apex Court in Major S.P. Sharma's case

(supra) has no relevance in the present matter.

29. It may not be out of context to indicate that the provisions of the Act Sections 19 and 20 are almost synonymous. Section 19 is applicable to officers, whereas, Section 20 applies to Army personnel other than officers. Similarly, Rule 14 has been framed to further the proceedings under Section 19 of the Act. Rule 17 has been made to deal with the proceedings under Rule 20. Rules 17 and 14 provide for giving of show cause notice and power of the Chief of the Army

Staff and others to dismiss or remove the person concerned from O.A.70 of 2011 & 118 of 2013 - 71 - service. To this extent both the provisions with regard to the officers and also to the persons below the rank of officers are almost synonymous. Rule 14 of the Army Rules has, however, additional provisions, which do not exist in Rule 17 and one of such additional provisions is that if the Central Government or the Chief of the Army

Staff is satisfied that the trial of the officer by a court-martial is inexpedient or impracticable, but is of the opinion that the further retention of the said officer in the service is undesirable, the Chief of the Army Staff shall so inform the officer, together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence. This is also one of the ways to dismiss or remove an officer from service. But on account of this additional provision in the matter of officers, the power of the Chief of the Army

Staff exercisable under Section 20 read with Rule 17 cannot be treated to be non-est in the matter of an Army personnel below the rank of an officer on the ground that the court-martial proceedings held resulted with no logical conclusion. In this way the power under

Section 20 of the Act read with Rule 17 of the Rules, being independent power, cannot be restricted or curtailed in any way on the ground that a court-martial proceeding was held, but no final conclusion came into being due to difference of opinion between the O.A.70 of 2011 & 118 of 2013 - 72 - court-martial and the Confirming Authority. In such situations, it is open to the Chief of the Army Staff to proceed as per the provisions of Section 20 of the Act read with Rule 17 due to the simple reason that a misconduct committed by an Army personnel should not go unpunished and the Army discipline should not be jeopardised.

Therefore, the aforesaid decisions relied upon by the learned counsel for the respondents are fully attracted in the present matter.

30. As we have already observed, both the GCM as well as the

Confirming Authority had concurred with the finding of guilt recorded against the applicant on Charge No.2. To that extent the GCM's finding cannot be held to be invalid even with the aid of Section 153 of the Act. The sentence awarded by the GCM with regard to Charge

No.2 was not confirmed by the Confirming Authority, so the sentence passed by the GCM is not valid as per the said Section 153.

Resultantly the finding of guilty on Charge No.2 being valid remains in tact. But the sentence for want of confirmation has no legal effect.

So far as the finding of the GCM on the first charge is concerned, it was not confirmed by the Confirming Authority. The GCM recorded the finding of “not guilty” but the Confirming Authority did not agree and refused to confirm. So the finding of the GCM on Charge No.2 is O.A.70 of 2011 & 118 of 2013 - 73 - not valid as per the aforesaid Section 153. Accordingly, the proceedings of the GCM on Charge No.2 stood redundant. On charge No.2 only the sentence stood redundant, but the finding of guilt remained in tact. Even only on the strength of the finding of guilt on Charge No.2, it was not possible to conclude the trial with any logical conclusion, because no valid sentence could be imposed against the applicant for want of concurrence of the Confirming

Authority. In such circumstances, nothing could be done against the applicant either with regard to Charge No.1 or charge No.2 on the basis of the proceedings of the GCM, so the Chief of the Army Staff was perfectly justified in invoking the powers he had under Section

20(1) of the Act.

31. Mr. Ramesh C.R. tried to contend that the finding of of the GCM on Charge No.1 was correct in view of the fact that the person, who was alleged to have given bribe to the applicant, was not examined during the trial. In this connection the learned counsel for the respondents submitted that the said Gurpreet Singh had died and was no more so there was no question to examine him during the trial, but there were other evidence to support the charge. In our view, the finding of innocence could not be recorded on Charge No.1 O.A.70 of 2011 & 118 of 2013 - 74 - due to non-examination of the aforesaid Gurpreet Singh, because at that time he was no more. In such circumstances his non- examination was not so material as to discard the entire prosecution case. We are, therefore, do not agree with the submissions of the learned counsel for the applicant.

32. The sole question that arises for our consideration is whether the Chief of the Army Staff considered the relevant materials and on that basis recorded his own independent finding after observing the requirements of Rule 17, including the principles of natural justice?

O.A.70 of 2011 & 118 of 2013 - 75 -

There will be no order as to costs.

. Issue free copy of this order to both sides.

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J)

tm.

The finding and sentence of the court martial are ineffective O.A.70 of 2011 & 118 of 2013 - 76 -

unless confirmed by the confirming authority. The Act not contemplate that the finding and sentence of a court martial must necessarily be confirmed merely because they have been returned for the second time. Section 165 vests power in the Central Government, the COAS and any prescribed officer, as the case be, as the case may be, to annul the proceedings of any court martial if the same are found to be illegal or unjust. The delinquent officer cannot be allowed to escape the consequences of his misconduct solely because court martial proceedings have been adjudged illegal or unjust for the second time. The power under Section 19 read with Rule 14 shall be available to be exercised in such a case though in an individual case the exercise of power may be vitiated as an abuse of power.

O.A.70 of 2011 & 118 of 2013 - 77 -