ARMED FORCES TRIBUNAL, 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 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. 4. THE GENERAL OFFICER 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 MARATHA LIGHT INFANTRY, 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 Cantonment, 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 Division , 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.