JKLR-Part(I)                                               SWP 598/1995                                           Back To Index

(2001) 1 J & K LAW REPORTER 106
High Court of Jammu and Kashmir
at Jammu
Before
Hon’ble Mr. Justice O.P. Sharma, Judge

Lt. Col. O. S. Perhar                                                                                                                    Petitioner
                                                                               versus
Union of india and others                                                                                                              Respondents

SWP 598 / 1995 decided on 5.10.2000.

Army Rules, 1954 R.14 - Finding of Court Martial not confirmed - Chief of Army Staff’s opinion that further retention of offficer undesirable- Resort to R.14 - Held : Justified - Notice issued under R. 14 not unlawful.
Advocates who appeared in this case :
Mr. K.S. Johal, Advocate for petitioner
Sr. Central Govt. Standing Counsel, Mr. Subash Bhat, Advocate for respondents
Cases referred : Chronological
1. Chief of Army Staff v. Maj. Dharam Pal AIR 1985 SC 703
2. Union of India v. Raghbir Singh AIR 1989 SC 19331
3. Radha Krishan v. Union of India AIR 1996 SC 3091

JUDGMENT AND ORDER

Petitioner an officer holding a permanent commission in the regular Army was tried by a General Court Martial in the year 1994. The charge against him was that on the intervening night of 26/27 March 1994, he voluntarily had carnal intercourse against the order of nature with one Shaik Ameer Basha of his unit. He was also charged u/s 63 of the Army Act for having improperly and without permission from the Officer-in-Charge Administrative of his unit took away said Sh. Shaik Ameer Basha of his unit from night guard duty.

2. The General Court Martial while exonerating him of the first charge found him guilty on the second charge and passed the sentence that the petitioner be reprimanded. This order was announced on 15.9.1994. The order further directed that the sentence was subject to confirmation.

3. However, the General Officer Commanding-in-Chief Northern Command by order dated 23.12.1994 declined to confirm the sentence and remitted the case back for re-consideration of sentence as also finding of net guilty on the first charge by observing as under :

" While in no way intending to interfere with the discretion of the court in arriving at their findings and the sentence, I as the confirming officer, am of the view that the Court while arriving at finding of ‘Net Guilty’ on the first charge under AA Sec.69 has gravely erred both in fully mustering the circumstantial evidence relating to the charge and in applying and interpreting the relevance of consent of the victim in commission of the said offence. Further, also the sentence of ‘Reprimand’ awarded on the second charge, is not commensurate with the gravity of the offence and in my opinion is palpably too lenient. I, therefore, direct that the finding on the first charge and sentence as passed in the second charge be reconsidered by the court in the light of my observations made in the succeeding paragraphs."

Paras 4 and 5 of the order passed by the General Court Martial read as under :

"The Court’s reasoning that it was unbelievable that the accused alone could sodomise a well built person of 23 years of aged without his consent, is naturally arising out of erroneous conception of law as the consent of the victim in such a case is immaterial and has no bearing. The court ought to have considered that the consent was a material factor and prime-ingredient only in a case of rape. For the same reason there is no substance in Court’s observation that the victim had not cried, shouted and physically resisted. The Court, it appears, has completely over-looked the fact that the facts on record go to show that the victim never volunterred or consented to the act and had protested to the accused which were drowned in the peculiar relative positions and status in which they were placed.

5. Adverting to the sentence part, it is pertinent to mention that the offence for which the accused has been found ‘Guilty’ on the second charge entails a maximum sentence of 7 years imprisonment. The court no doubt is not obliged to award the maximum sentence, but must modulate it in consonance with the gravity of the offence. The sentence awarded on the second charge appears to be in defiance of the logic as the act of the accused in taking away a jawan especially who is on night guard duty certainly not treated as simple. Thus, the sentence being disproportionate, needs to be corrected."

However, General Court Martial by order dated December 26,1994 declined charge or modify its earlier order.

4. The confirming authority, namely Lt.General Surinder Singh, General Officer Commanding-in-Chief Northern Command, it appears confirmed the sentence, but declined to confirm the finding of not quilty on the first charge. The matter having reached the chief of Army staff, a show-cause notice dated 1.2.1996 for termination of petitioner service was issued to him by the Army HQ paras 4 to 6 which read as under :

"That the General Court Martial had found you ‘NOT GUILTY ‘ of the first charge but ‘GUILTY’ of the second charge on which it had sentenced you to be reprimanded. The GOC-in-C Northern command while confirming the findings of the GCM on the second charge had not confirmed the findings on the first charge and the sentence on the second charge.

5) That the Chief of the Army Staff before whom the facts relating to your conduct had been placed has found your behavior to be reprehensive and of the opinion that your continued retention in Army service is deterimental to discipline and morals of subordinates and therefore, undesirable.

6) As it is legally impractical to subject you to retrial by court Martial, The Chief of the Army Staff after due consideration of all related facts has directed that you should be informed and called upon through this notice to submit in writing, within 30 days of the receipt of this communication, as to why your services should not be terminated in terms of Section 19 of the Army Act, 1950 read with Rule-14 of the Army Rules, 1954. In case no reply /application is submitted by you within the stipulated period, it shall be presumed that you have no grounds to urge in favour of your retention in service, and action as deemed fit will be taken in the case."

5. The petitioner challenges both the finding of guilty returned by the General Court Martial and show-cause notice issued under Rule-14 of Army Rules on the following grounds:- i) Whether a juducial finding returned by the Court Martial can be interfered by the Administrative Authority without assigning any reason; (ii) Whether the order of non-confirmation is without any reason and as such bad and liable to be quashed; (iii) Whether it was obligatory for the Government to give reasons for its disagreement with the finding of the court martial before issuing show-cause notice under rule-14 of the Army Rules and (iv) Whether the show-cause notice is without jurisdiction and, therefore, liable to be quashed.

6. Respondents have resisted the petition on the plea ( i ) that is pre-mature because no final order has been passed and (ii) that the competent authority is empowered to proceed under rule-14 of the army Rule in case re-trial by court martial is either inexpedient or impracticable. The first ground of challenge pertains to the power of the authority competent to confirm the sentence by the court martial. Rule-70 of the Army Rules provides as under:

"70 Confirmation - Upon receiving the proceedings of a general or district court martial, the confirming authority may confirm or refuse confirmation, or reserve confirmation for superior authority, and the confirmation, non-confirmation, or reservation shall be entered in and form part of the proceedings."

Under this rule the confirming authority is empowered to confirm or refuse to confirm the finding. It has also power to reserve confirmation for superior authority. So there being no challenge to vires of this rule, this ground of challenge is without any substance. This apart, rule-70 not being beyond the rule making powers under the Army Act, its vires cannot be challenged. Further there appears to be a well devised machanism for examining the proceeding of the court martial by the authority and the superior authority before final order is passed. This is clearly spelled out from both the orders seeking re-consideration passed by the confirming authority and the show cause notice. So far as non-confirnmation of the finding of not guilty is concerned, paras 2,4 and 5 order dated 23.12.1994 indicate how meticulously the proceedings of the court martial and the findings were examined. Application of law to the facts of the case also is unexceptionable because in case of unnatural offence punishable u/s 377 RPC consent of the victim is immaterial. So the argument that non-confirmation of finding of not guilty was without reasons is without substance and also contrary to the record. It is precisely for this reason that the confirming authority referred the case to the superior authority i.e. the Chief of Army Staff. So even this ground of challenge must fail for the following reasons.

7. First three paras of show-cause notice summarise the facts constituting the charge under sections 63 and 69 of the Army Act. Para-4 of the notice deals with the finding returned by the General Court Martial and the opinion of the Chief of Army Staff about the impracticability of re-trial by court martial and necessiating action under rule-14 is clearly expressed in paras 5 and 6 of this notice. The chief of Army Staff has formed this opinion on the basis of the proceeding and the finding and this is adequately reflected in the show-cause notice. In the circumstances it cannot be said that the Chief of Army Staff or confirming authority have not given reasons for their disagreement with the finding of not guilty returned by the General Court Martial. It is not a case of no evidence because finding of the court martial that the victim of sodomy was a consenting party is perverse being against law and has been rightly discarded by the confirming authority as well as by the Chief of Army Staff. It does not require any further elucidation. So the third ground of challenge is also rejected.

Ground - iv : The answer to this question depends upon the scope of rule-14 of Army Rules, 1954. It reads as follows :

"14. Termination of service by the Central Government on account of misconduct : (1) When it is proposed to terminate the service of an officer under Sec.19 on account of misconduct, he shall be given an opportunity to show cause in the manner specified in sub-rule (2) against such action:

Provide that this sub-rule shall not apply

a) Where the service is terminated on the grounds of conduct which has led to his conviction by criminal court;or

b) Where the Central Government is satisfied that for reasons, to be recorded in writing it is not expedient or reasonably practicable to give to the officer an opportunity of showing cause.

2) When after considering the reports on an officer’s misconduct, the Central Government, or the Chief of the Army Staff is satified that the trial of the officer by 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 Army Staff shall so inform together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation :

Provided that the Chief of the Army Staff may withhold from disclosure any such report or portion 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 Army Staff, or when so directed by the Central Government, the case shall be submitted to the Central Government with the officer’s defence 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).

3) Where, upon the conviction of an officer by a Criminal Court, the Central Government or the Chief of the Army Staff Considers that the conduct of the officer which has led to his conviction renders his further retention in service undesirable, a certified copy of the judgment of the Criminal Court Convicting him shall be submitted to the Central Government with the recommendation of the Chief of the Army Staff as to the termination of the officer’s service in the manner prescribed in sub-rule(4).

(4) When submitting a case to the Central Government under the provisions of sub-rule (2) or sub-rule (3) the Chief of the Army Staff make his recommendation whether the officer’s services should be terminated and if so, whether the officer should be:

a) dismissed from the service; or

b) removed from the service; or

c) compulsorily retired from the service."

(5) The Central Government after considering the reports and the officer’s defence, if any, or the judgement of the Criminal Court, as the case may be, and the recommendation of the Chief of the Army Staff, may -

a) dismiss or remove the officer with or without pension or gratuity ; or

b) compulsorily retire him from the service with pension and gratuity, if any, admissible to him."

So both the Central Government as well as Chief of Army Staff have concurrent powers to issue show-cause notice under rule 14 of the Rules. The Supreme Court in Chief of Army Staff vs. Maj. Dharam Paul Kukrety AIR 1985 SC 703 has expressed its opinion on the point as follows:

"Under sub-rule (2) of Rule 14, the foundation of the jurisdiction of the Central Government or the Chief of Army Staff to issue a show cause notice is the satisfaction of the Central Government or the Chief of the Army Staff after considering the reports of an officer’s misconduct that the trial of the officer by a court martial is inexpedient or impracticable and the opinion formed that the further retention of the officer in the service is undesirable."

So it is wrong to contend that Chief of Army Staff lacked jurisdiction to issue impugned show cause notice. It was next argued on behalf of the petitioner that confirming authority could not have directed revision of finding of sentence and, therefore, the order dated 23.12.1994 of respondent 3 was without jurisdiction. However, this argument ignores the mandate of rule 160 which empowers the confirming authority to seek revision of the order of sentence. So even this argument is without any substance.The last challenge to the show cause notice is based on the law laid down by the Supreme Court in Radha Krishan vs. Union of India AIR 1996 SC 3091. The contention of Mr. Johl is that Chief of Army Staff having come to the conclusion that trial of the petitioner by court martial is legally impracticable, action under rule 14 is not permissible. Mr. Bhat, on the other hand argued that the facts of this case are squarely covered by the decision of the Apex court in Chief of Army Staff vs. Maj Dharam Pal AIR 1985 SC 703. He further argued that even if there is any doubt as to whether the facts are covered by the earlier or later judgement, the earlier judgement being of three member bench must prevail, over the later which is by two member bench of the court in view of the decision of the Constitution Bench in Union of India vs. Raghbir Singh AIR 1989 SC 1933.

8. Let us find out as to what is the legal position with regard to the application of rule-14 of the army rules. In case the Chief of Army Staff vs. Dharam Pal, offence was committed on 7.11.1975. The charge-sheet was dated 20.1.1976. The court martial returned its finding of not guilty on 13.3.1976. The confirming authority did not confirm the verdict and sent it back for revision. The General Court Martial adhered to its finding and announced the same on 14.4.1976. The confirming authority reserved confirmation of the finding of revision by a superior authority who did not confirm the same. Thereafter the Chief of Army Staff issued the impugned notice under rule-14 on 12.11.76. The officer replied the show-cause notice, but before any order could be passed, he challenged the show-cause notice by filing writ petition in the High Court of Allahabad. The High Court allowed the petition and quashed the impugned notice. On the basis of these facts their lordships while setting aside judgement of the High Court held as under :

"This being the position, what then is the course open to the central Government and the Chief of the Army Staff when the finding of court-martial even on revision is perverse and against the weight of evidence on record? The High Court in its judgement under appeal also held that in such a case a fresh trial by the other 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 about 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 Rule 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, in it, however, be said that in such a case a trial by a court-martial is inexpedient or impractical. The shorter Oxford English Dictionary, Third Edition, defines the word "inexpedient" as meaning "not expedient; advantageous in the circumstances, advisable, 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 agvantageous 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 confirmed and the Chief of the Army Staff was of the opinion that the further retention of the respondent in the service was undersirable and, on the other hand, there were the above three High Court decisions and the point was not concluded by a definite pronouncement of this court. In such circumstances, to order a fresh trial by a court-martial could certainly by said to be both ex 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."

9. It is true a case in which trial was not barred under section 121 of the Act. The petitioner has neither been tried by a criminal court nor dealt with under any of the provisions of Army Act for committing the offence of Sodomy. So section 121 was not a bar to his retrial. Similarly, his re-trial on the first charge was not barred under limitation because u/s 122 of the Army Act, he could be tried within a period of three years.

10. Admittedly, the offence was allegedly committed on 26.3.1994. The court concluded the proceedings in December 1994 i.e. within one year. Show-cause notice is dated 1.2.1996. So re-trial could be ordered because there was still more on year within which the trial could he held. However, Chief of Army Staff was of the opinion that his re-trial would be impracticable. The expression impraticalbe is follow the three Judge decision of the Apex court in Dharam Pal’s case, show-cause notice is valid.

11. Let us see whether the law laid down in the case of Radha Krishan (Radha Krishan v. Union of India) is not in accord with the law laid down in case of Chief of Army Staff v. Dharam Pal. The argument of Mr.Johl is that conflict is apparent. This however, does not appear to be so because facts in Radha Krishan’s case were entirely dirrerent. These facts are mentioned in para-8 of the Judgement which read as under :

"It is not in dispute that at the time the impugned notice was sent, no trial of the appellant by Court martial could be held for sub-section (1) of section 122 as it then stood clearly envisaged that it should not be commenced after expiration of three years from the date of commission of the offence which in the instant case was about 7 years prior to the issuance of notice. Indeed, as seen earlier, in the case itself, it is stated that the trial had become time barred. When the trial itself was legally impossible and impermissible the question of itself being impracticable, in our view cannot or does not arise. Impracticability is a concept different from impossibility for while the latter is absolute, the former reduces at all events some degree of reason and involves regard for practice."

So admittedly trial of Radha Krishan had become time barred and in order to overcome this notice u/s 14 was issued. It was in this background that their lordships held as under :

"11. As noticed, earlier, Rule 14(2) opens with the words "when after considering the reports on an officer’s misconduct, the Central Government, or the Chief of the Army Staff is satisfied ... " It is evident, therefore, that the satisfaction about the inexpediency or impracticability of the trial has to be obtained on consideration of the reports on the officer’s misconduct. That necessarily means, that the misconduct and other attending circumstances relating thereto have to be the sole basis for obtaining such a satisfaction.

12. The purport of the above Rule can be best understood by way of an illustration. The Chief of Army Staff receives a report, which reveals that an Army Officer has treacherously communicated intelligence to the enemy an Officer punishable under section 34 of the Act. He however, finds that to successfully prosecute the officer it will be necessary to examine some witnesses, ensuring presence of whom will not be feasible and exhibit some documents, disclosure of which will not be advisable in the interest of the security of the State. In such an eventuality he may legitimately invoke the Rule to dispense with the trial on the grounds that it would be impracticable and/ or inexpedient. But to dispense with a trial on a satisfaction the misconduct like the bar of limitation in the present case will be wholly alien to Rule 14(2)."

So ratio of the judgement is that if trial by court martial is barred u/s 126 recourse to Rule 14 is not permissible. It is not case of the petitioner that his trial has u/s 122 and rightly so because the show-cause notice was issued even before the expiry of period of two years. Re-trial therefore, was permissible at the time show-cause notice was issued because the period of limitation is three years. So it was the impracticability or inexpediency to try the petitioner by court martial which necessitated the Chief of Army staff to proceed under rule 14(2) and his action is strictly in accodance with the law laid down both in Dharam Pal’s case as well as in Radha Krishan’s case (supra). There is thus no contradiction in the two judgements. However, assuming that there is any doubt the ambit and scope of law laid down in the case of Radha Krishan though there is absolutely no scope for such a doubt. The law laid down by three member bench in Chief of Army Staff v. Maj Dharam Pal AIR 1985 sc 703 will hold the field unless it is overruled by a larger bench in view of the decision of the Constitution Bench in Union of India v. Raghubir Singh AIR 1989 sc 1933 held that :

"We are of opinion the pronouncement of law by a Division Bench of this court is binding on a Division Bench of the same or a similar number of Judges are in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full court or a Constitutional Bench of the Court, we would however, like to think that for the purpose of imparting certainly and endowing due authority decisions of this court in the future should be rendered by Division Benches of at least three judges unless, for compelling reasons that is not conveniently possible."

12. However , I am firmly of the opinion that the facts of this case squarely covered by the decision of their Lordship in the case of Chief of Army Staff v. Maj. Dharam Pal (AIR 1985 sc 703) because of limitation retiral had not expired before the show-cause notice under Rule-14 was issued. Same is the case here also as noticed above.

13. It is thus settled law that (i) Chief of the Army Staff has the jurisdiction to issue show-cause notice under Rule-14 of the Army Rules if he is of the opinion that the trial by the court martial is inexpedient or impracticable (see AIR 1985 sc 703) (ii) That recourse to Rule-14 of the Army Rules is possible only if the trial by the court martial is not barred by the limitation prescribed under section 122 of the Army Act (See AIR 1996 sc 3091). (iii) That before the Chief of the Army decision to proceed under Rule-14 he has to be satisfied that trial of the officer by a court martial is inexpedient or impracticable. (iv) That sub rule (4) of Rule-14 prescribes the mechanism to be followed by the Chief of Army Staff in case punishment provided there is to be imposed. (V) that it is the Central Government which alone has the power to pass the final order considering the recommendation of the Chief of the Army Staff. So the petitioner cannot be aggrieved of the show-cause notice as the chief of the Army Staff has yet to consider his reply and decide further course of action. Similarly, it is open to the Central Government to accept or reject his recommendation.

14. In view of the above show-cause notice issued by the Chief of Army Staff is perfectly valid and strictly in accordance with law. As such this writ petition is premature and liable to be dismissed. It is dismissed accordingly with costs.