DESAI, J. -
(1.) VALIDITY and legality of an order made against each petitioner convening General Court Martial to try each petitioner in respect of the charges framed against each of them is questioned on diverse grounds but principally the composition in each of these petitions under Art. 32 of the Constitution. In Writ Petition No. 4903/81 the petitioner. has also challenged the constitutional validity of Rules, 22, 23, 25 and 40, of the Army Rules, 1954 ('Rules' for short) as being violative of the fundamental rights of the petitioner guaranteed under Articles 14 and 21 of the Constitution. As certain contentions were common to all the three petitions they were heard together and are being disposed of by this common judgment. Facts alleged on which legal formulations were founded may be briefly set out in respect of each petitioner.
Re : Writ Petition No. 4903/81 :
(2.) PETITIONER Lt. Col. Prithipal Singh Bedi was granted. permanent regular commission in the Regiment of Artillery in 1958 and in course of his service he came to be promoted as Captain, then as Major and at the relevant time he was holding the rank of Lt. Colonel and in that capacity he was designated as Commanding Officer, 226, Medium Regiment of 43 Artillery Brigade. As part of his duty he had to write, interim confidential reports of five officers of the rank of Major. subordinate to hint. One Major R. S. Sehgal was one of the subordinate officers whose interim confidential report was written by the petitioner. Under the relevant rules the officer whose confidential report is written by his superior has to be shown the confidential report and in token of his having seen the same his signature is to be obtained, the purpose underlying this procedure being that the attention of the subordinate officer is drawn to the counselling remark in the confidential report which may encourage him to remedy the defect pointed out and to improve in his efficiency. The confidential reports prepared by the petitioner were to be reviewed by the Brigadier. It is alleged that Brig. N. Sondhi, AVSM who held the office of the Brigadier and under whom the petitioner was working as Lt. Colonel at the time of writing reports had already been transferred on Jan. 8, 1980, and, therefore, the confidential reports submitted by the petitioner were required to be reviewed by the officer who occupied the office of Brigadier consequent upon the transfer of Brig. N. Sondhi. It is admitted that petitioner had also received his order of transfer dated Feb. 6, 1980 but he left the charge oft Feb. 16, 1980, after completing the formality of handing over charge and also writing the interim confidential reports which he was bound to complete before proceeding on transfer. It is alleged that Major R. S. Sehgal in respect of whom petitioner wrote the confidential report on Feb. 20, 1980, which contained a counselling remark adverse to the officer was a near relation of Brig. N. Sondhi. It is further alleged that even though Brig. Sondhi had already been transferred and had left charge, yet on Feb. 25, 1980, the confidential reports were forwarded by the Headquarters 43 Artillery Brigade to Brig. Sondhi for reviewing the same. While so reviewing the confidential reports, Brig. Sondhi addressed a query with respect to the last sentence in para 27 in the confidential report of Major Sehgal; "that the last sentence appears to have been written possibly at a different time. It is suggested that a confirmation may be asked for from the officer as to whether he was aware of the complete para prior to signing. The ICR may thereafter be returned for onward despatch". Suspicion underlying this query is that adverse entry reflected in the last. sentence of para 27 was interpolated after the confidential report was signed by Major Sehgal. The suspicion arose on the visual impression that : (a). there is change in ink of last line; (b) last line appears to have been written over the signature of the officer reported upon; (c) size of lettering of the last line is smaller than the rest of the para. It may be mentioned that ultimately this alleged interpolation in the interim confidential report after the same having been initialled by the officer reported upon is the gravamen of the charge under Section 45 of the Army Act on which the petitioner is called upon to face a trial by the General Court Martial convened under the impugned order dated 11/04/1981.
Re : Writ Petition No. 1513/79 :
The first petitioner Captain Dharmpal Kukrety and petitioner 2 Naik Bhanwar Singh were both attached at the relevant time to 2 Rajput Regiment but since the order to try them before a General Court Martial both of them are attached to 237 Engineer Regiment, of 25 Infantry Division which is a part of the 16th Corps of the Indian Army, Petitioner 1 was promoted as Acting Major but because the direction to try him before a Court Martial he has been reverted to the substantive rank of Captain. Petitioner 2 holds the substantive rank of Naik. In the year 1978 one Lt. Col. S. N. Verma was the Commanding' Officer of the 2 Rajput Regiment and the 1st petitioner was directly under him being second in command. One Major V. K. Singh belonging to the 2 Rajput Regiment was a Company Commander under Col. Verma. He applied for casual leave for, seven, days and Lt. Col. Verma granted the same. In the meantime on Oct. 14, 1978, Lt. Col. Verma proceeded. on leave. First petitioner being the second in command was officiating Commanding Officer when IA. Col. Verma proceeded on leave. On Oct. 16, 1978, the 1st petitioner informed Major V. X. Singh that he could proceed on. leave with effect from Oct. 17, 1978, for a period of seven days. Major V. K. Singh, however, overstayed his leave and returned after 10 days. Petitioner contends that he being a strict disciplinarian, he did not approve of the default of Major Singh and, therefore, he reported the matter to Lt. Col. Verma on his return from leave who in turn asked the 1st petitioner to make investigation and submit report. On the 1st petitioner making the report, Lt. Col. S. N. Verma ordered abstract of evidence to be recorded by framing some charge against Major V. K. Singh. The allegation is that the father-in-law of Major V. K. Singh is Deputy Speaker of Haryana State Legislative Assembly and a man of powerful political influence who appears to have contacted third respondent Lt. General Gurbachan Singh to assist his son-in-law Major V. K. Singh. It is alleged that when Major V. K. Singh was produced before 7th respondent Brigadier P. N. Kacker, the latter appeared reluctant to proceed against Major V. K. Singh. First petitioner sought an interview with 7th respondent and insisted that disciplinary action should be initiated against Major V. K. Singh. First petitioner sought an interview with. 5th respondent on Dec. 16, 1978. Major V. K. Singh was awarded 'displeasure' which appears to have, infuriated the first petitioner because according to him punishment was disproportionately low compared to default. It is alleged that 5th respondent suggested that 1st petitioner be put on AFMS-10 for psychiatric investigation. 1st petitioner sought attachment to other unit certain very untoward incidents followed which are detailed in the report of Court-of Inquiry set up for ascertaining the facts which are not necessary to be detailed here. 1st petitioner has set out in his, petition chronology of events leading to his being charge-sheeted. Ultimately, an order was made to try him by a General Court Martial and a General Court Martial was convened as per the order dated Oct. 7, 1979. The legality, and validity of the order constituting the General Court Martial is impugned in this petition.
Re : Writ Petition No. 5930/80.
Petitioner Captain Chander Kumar Chopra joined the Army as 2nd Lieutenant on Jan. 12, 1969, and in course of time came to be promoted as Captain and at the relevant time he belonged to 877, AT BN. ASC under 20 Mountain Division which is one of the Divisions in 33 Corps. Petitioner was Second-in-Command. On Feb. 12, 1979, the petitioner sought a personal interview with C.O. Lt. Col. R. M.. Bajaj to report against Major S. K. Malhotra for the irregularities committed in the Company disclosing misappropriation of funds, pilferage of petrol and stores, furnishing of false information and certificates in official documents resulting in loss to the State, misuse of transport and misuse of power and property. As Lt. Col. Bajaj did not possibly take any action on, this report, the petitioner on 7/03/1979, submitted an application to the Chief of Staff, Headquarters, 33 Corps c/o 99 APO to bring to the notice of Chief of Staff the irregularities going on in 'A' Coy. 877 AT BN ASC and seeking an interview at'-an early date. The petitioner's. request for a personal interview was turned down whereupon the petitioner made an application for casual leave for 13 days w. e. f. Feb. 26, 1979, which appears not to have been granted. On 16/03/1979, the petitioner was summoned by Lt. Col. Bajaj at his residence and he was assured that justice would be done but the petitioner should cancel the letter dated 7/03/1979, and surrender the demi official letter addressed to Coy. 33 Corps in the interest and name of the Unit. Thereafter the petitioner was taken to office by Lt. Col. Bajaj and it is alleged that under pressure, letter dated 16/03/1979, written in the petitioner's own hand as dictated by Lt. Col. Bajaj was taken and at the same time a number of certificates were also taken from the petitioner. A Court of Inquiry was set up to inquire into the allegations made against Major. Malhotra by the petitioner. The Court of Inquiry commenced investigation on 27/08/1979. 'the petitioner submitted a request to summon 15 witnesses to substantiate his allegation against Major Malhotra. Probably this request did not find favour and the petitioner entertained a suspicion that the members constituting the Court of Inquiry were highly prejudiced against him. The Court of Inquiry submitted its report. It is not necessary. to recapitulate. the findings of the Court of Inquiry save and except that not only the Court of Inquiry negatived all the allegations of petitioner against Major Malhotra but on the contrary found that the petitioner had taken some store items unauthorisedly on Jan. 30, 1979, which were returned on Jan. 31, 1979. Pursuant to the findings of the Court of Inquiry a charge-sheet was drawn up against the petitioner for having committed offences under Ss. 52 (b), 56 (a) and 63 of the Act. Direction was given for recording summary of evidence. Subsequently the impugned order convening the General Court Martial was issued. The petitioner there. upon filed the present petition.
(3.) IN each petition legality and validity of the order convening the General Court Martial more particularly the composition of the Court Martial in respect of each petitioner is questioned. The challenge up to a point proceeds on grounds common to all. the three petitions and they may be dealt with first.
The contention is that the Constitution of General Court Martial in each case is illegal and contrary to Rule 40 and, therefore, the order constituting the General Court Martial in each can must be quashed.;