- (1.)BY means of this petition preferred under Article 226 of the Constitution of India, the petitioner - Major C. J. Lamba - has impugned his dismissal order and prayed for some consequential reliefs.
(2.)THE factual matrix from which this petition arises, in brief, is as under :- The petitioner was posted under General Officer commanding-in-Chief, Southern Command, in Pune, in the years 1991-1992. He was occupying married accommodation at 12-B, kahun Road, Pune and was staying there with his wife and children. In the early part of 1992, he was transferred to a field area in Kashmir. Consequently, it became imperative for his family to shift to separated family quarters accommodation. On 9-7-1992 he applied for such accommodation and in due course was allotted the same. Till then his family continued staying at 12-B, Kahun Road, Pune. On 30-7-1992 the petitioner preferred a claim of Rs. 16,589-30 paise for shifting his baggage and car to chandigarh. The same was disallowed. In the mean time it transpired to the authorities that the petitioner had actually not shifted his baggage and car to Chandigarh and made a false claim. Consequently three courts of Inquiry were set up vide orders dated 15-6-1993, 23-12-1993 and 4-7-1994. This was because the first two were not held in accordance with law; the first as no evidence was called from Station Headquarters, Pune or CDA (0)/mes authorities and the second because though the Inquiry was completed but in the process of finalising the Report of the court of Inquiry, the finalising authority, i. e. General officer Commanding, HQ M and G Area found that the said Court of Inquiry had been constituted in violation of para 518 of dsr as one of the members was junior to the petitioner. It is common ground between the counsel for the parties that the third Court of Inquiry indicted the petitioner.
2 (A). It is also pertinent to point out that the petitioner did not pay to the Maharashtra State Electricity board the electric bill of Rs. 8132-35 paise for the period 3-9-1992 and June 1993 in respect of House No. 12-B, Kahun road, Pune, which had been allotted to him.

2 (B). In due course, the petitioner was put up for trial before the General Court Martial comprising of five members; presided over by Col. S. P. Singh. On 8-6-1995, the following two charges were framed against him.

FIRST CHARGE ARMY ACT SECTION 52 (f ). SUCH AN OFFENCE AS IS MENTIONED IN CLAUSE (f) OF SECTION 52 OF THE ARMY ACT, WITH INTENT TO CAUSE WRONGFUL LOSS TO A PERSON. In that he, at field on 30 July, 1992, with intent to cause wrongful gain to himself, improperly claimed Rs. 16,589. 30 (Rs. Sixteen thousand five hundred eighty nine and paise thirty only) from CDA (O), Pune on account of moving his household luggage and car to Chandigarh, well knowing that he was legally not entitled to the same. SECOND CHARGE, ARMY ACT, SECTION 45. BEING AN OFFICER BEHAVING IN A MANNER UNBECOMING HIS POSITION AND THE CHARACTER EXPECTED OF HIM. In that he, at Pune, between 3 September, 1992 and June 1993, improperly failed to pay the final electricity bill dated 3 September, 1992 amounting to Rs. 8,132. 35 (Rs. eight thousand one hundred thirty two and paise thirty five only) to Maharashtra State Electricity Board (MSEB) in respect of H. No. 12-B, Kahun Road, Pune-I which was allotted to him. Sd/- (S. P. Singh), Col.

2 (C). Evidence was led before the General Court Martial which found the petitioner guilty only respect of the first charge viz. improperly claiming Rs. 16,589. 30 for shifting his household luggage and car to Chandigarh which he had not done. It assigned three reasons for finding him guilty. (a) The Court is satisfied that family of the accused continued to occupy Government accommodation at Pune consequent to his posting to field area. (b) That the transporters who allegedly transported the luggage and car of the accused did not exist at their given address. (c) That the evidence of DW-2 and 7 was not relied upon because of material contradictions in their testimonies.
It sentenced him to forfeit ten years past service for the purpose of pension. On the second charge, viz. that pertaining to electricity bill, the General Court Martial did not find the petitioner guilty because in its view he had never refused to pay the electricity bill and the matter was between him and the M. S. E. B. In its view this default of the petitioner could not be termed as behaviour unbecoming of his position which is penal under section 45 of the Army Act.
2 (D). The petitioner, through an appeal, challenged the verdict of the General Court Martial before the General officer Commanding, Maharashtra and Gujarat Area hereinafter also referred to as GOC M and G Area, who was also the confirming authority vide a A3 warrant dated 5-5-1960 issued by the Central Government by virtue of the powers vested in it by section 154 of the Army Act, 1950.

2 (E). It would be pertinent to point out that by virtue of the provisions of section 160 of the Army Act, the confirming authority has the powers to once revise a finding or sentence of General Court Martial. The GOC M and G Area who was both the confirming and revising authority through a judicious and well reasoned order dated 21-1-1996, which would provoke the envy of the very best on the judicial side, came to the conclusion that the sentence awarded to the petitioner on the first charge appeared to be lenient because (a) the offence involves moral turpitude; (b) it was serious in nature; and (c) there were past convictions of the petitioner. The GOC M and G Area also concluded that the General Court martial erred in not finding the petitioner guilty on the second charge and was of the opinion that the view of the general Court Martial that the offence was merely of a social nature, was not tenable and the act of the petitioner fell within the ambit of section 45 of the Army Act which made the behaviour of an officer in a manner unbecoming of his position, penal. Hence the GOC M and G Area remanded the matter to the general Court Martial for reconsideration of :- (a) sentence of the petitioner on the first charge and (b) whether he was guilty on the second charge. But in para 2 of the order he made it expressly clear that he was in no way intending to interfere with the discretion vested in General Court martial which should decide these questions independently.

2 (F). Pursuant to the order of remand dated 21-1-1996 the General Court Martial again assembled on 7-2-1996 and thereafter found the petitioner guilty in respect of the second charge, viz. non-payment of electricity bill, on the ground that he did not make any efforts to get the bill rectified or pay the same and did not pay final electricity bill to MSEB which was ultimately recovered from his pay and allowances in June 1993. In respect of the first charge, it adhered to the reasons given by it on page 130 of the proceedings. The General Court Martial revoked the earlier sentence and sentenced the petitioner to dismissal from service.

2 (G). Once again the findings and sentence of the general Court Martial came up for confirmation before the goc, M and G Area, who vide his order dated 20-3-1996 ordered I reserve the findings and sentenced of the Court for confirmation by superior military authority. Consequently the confirmation proceedings came up before the superior military authority of GOC, M and G Area, the General Officer commanding-in-Chief, Southern Command, Pune, who had been appointed the confirming authority vide a A-3 Warrant dated 22-7-1950 issued by the Central Government, vide his order dated 22-4-1996, he confirmed the findings and sentence of the General Court Martial.

2 (H). Aggrieved by the confirmation order dated 22-4-1996, the petitioner preferred in this Court Criminal Writ petition No. 241 of 1996 but the same was dismissed in limine on 10-4-1996 by a Division Bench of this Court on the ground that the petitioner had an adequate alternative remedy under section 164 of the Army Act and should avail of the same. Consequently, the petitioner preferred post confirmation petition under section 164 (2) of the Army Act. Vide letter dated 26-12-1996, Mr. R. G. Hegde, Under secretary to the Government of India, intimated the petitioner that the Central Government had rejected his petition as it was lacking in substance.

(3.)IT is in these circumstances that the petitioner has preferred the present petition under Article 226 of the constitution of India seeking reliefs referred to in para I of our judgment.