SADANAND SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner, an ex -Naib Subedar of 14 E.M.E. Battalion (Command) of the Indian Army has approached this Court for quashing the order of his dismissal from the Army and for direction to pay retirement benefits such as pension, gratuity, provident fund etc. to him.

(2.) THE case of the petitioner may briefly be set out as follows. The petitioner was enrolled as Naib Subedar in the junior commissioned rank on 14.12.1963. While he was posted under the 14 EME Battalion (Command) Udhampur, two letters of his were intercepted on 7.1.1986 in which he had mentioned about recruitment of certain persons for monetary considerations. On 2.11.1987 a court of inquiry was constituted. On 20.1.1988 a convening order was issued with a tentative chargesheet. On 22.8.1988 a fresh tentative chargesheet was served and without giving opportunity of showing cause, summary of evidence was recorded. In the meantime the petitioner was informed about his impending retirement on completing his tenure as 26 years on 14.12.1989 in December 1989. In the summary of evidence recorded on 22.8.88, iist of 10 witnesses was given out of whom only four including the petitioner were examined. On 3.12.89 after more than a year of recording of summary of evidence, when he was about to retire, he received a communication dated 29.11.89 asking him to show cause as to why he should not be dismissed under Section 20 of the Army Act read with Rule 17 of the Army Rules. On 11.12.89 he submitted his show cause. On 29.12.89 when he had only two days left to retire the impugned order of dismissal was issued depriving him of his retirement benefits which he would have in the normal course received upon his retirement. The case of the petitioner is that the dismissal order is in violation of the provisions of the Army Act and the Rules.

(3.) THE petitioner has filed reply to the counter affidavit. While dealing to the statements made in paragraph 4 of the counter affidavit he has simply denied to have written the letters and pleaded innocence. In our opinion such a bald denial cannot be treated to be sufficient in view of the fact that the allegations/statements are based on records. This Court while making judicial review is not supposed to sit as appellate authority and appraise the materials on record or the findings arrived at by the disciplinary authority. In other words, the Court is not supposed to go into correctness or otherwise of the conclusions. The court has merely to see whether the decision making process was correct or not. A grievance is made of the violation of the procedure laid down in Rule 23 of the Army Ru.as, 1954, We have doubts if Rule 23 of the Army Rules, 1954. laying down the manner of recording summary of evidence, is applicable in the instant case, for the procedure indicated in Rule 23 is precusor to the Court Martial proceedings. This is evident from the fact that the Rule 23 occurs in Chapter V titled Investigation of charges and trial by Court -Martial. Nevertheless, even if it be assumed that the summary of evidence in the instant case was recorded in terms of Rule 23, we do not find any violation of the procedure. Rule 23 lays down that where the case is adjourned for the purpose of having the evidence reduced to writing, at the ad journed hearing evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs. The accused may put in cross -examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added to the evidence recorded. The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and signed by him. Thereafter the accused is to be given opportunity to make any statement. He is not obliged to say anything. However, if he makes statement the same shall be taken down and read to him but he will not be cross -examined upon it. The accused may call witnesses if he so desires.