R.C.LAHOTI - (1.) HARJEET Singh Sandhu, the respondent in S.L.P. (C) No. 5155/1998 was a captain in the Army. On the night intervening 27th and 28/03/1978 the respondent along with three other officers interrogated one Bhagwan Das, who was also a defence employee, in connection with an incident of theft. During the course of interrogation the respondent and his co-associates used third degree methods in orders to extract a confession as a result whereof Bhagwan Das died. A General Court martial (GCM, for short) was convened under Section 109 of Army Act, 1950 which tried the respondent and the other officers. On 26-12-1978 the GCM awarded the sentence of forfeiture of three years service for purpose of promotion and severe reprimand to the respondent. The confirming authority formed an opinion that the sentence passed on the respondent was very lenient and therefore vide Order dated 19-4-1979 in exercise of the powers conferred by Section 160 of the Army Act sent t he case back for revision. On 10-5-1979 the GCM on revision, enhanced the punishment inflicted on the respondent to forfeiture of three years of service for the purpose of promotion and also for the purpose of pay and pension. On 24-9-1979 the Chief of the Army Staff in exercise of the power conferred by Section 165 annulled the GCM proceedings on the ground that the proceedings were unjust. On 20-12-1979 a show cause notice was issued to the respondent under Section 19 of the Act read with Rule 14 of the Army Rules, 1954 (hereinafter the Rules, for short) calling upon the respondent to show cause why his services should not be terminated. Reply was filed by the respondent defending himself. On 16-7-1982 a fresh show cause notice was issued to the respondent requiring him to show cause why his service be not terminated under Section 19 read with Rule 14. Both the notices dated 20-12-1979 and 16-7-1982 recorded on the part of the Chief of the Army Staff - (i) a satisfaction that the respondent's retrial by a Court-martial consequent to the annulment of the GCM proceedings was impracticable, and (ii) formation of opinion that the respondent's further retention in the service was undesirable. The latter notice also stated that the earlier notice was thereby cancelled though the reason for such cancellation was not mentioned. The respondent filed a reply dated 9-9-1982 in defence of himself. On 2-1-1984 the Chief of the Army Staff passed an order dismissing the respondent from service. On 16-2-1984 the respondent filed a civil writ petition before the High Court of Allahabad laying challenge to the order of termination. The singular contention raised before the High Court was that the incident, in which the respondent was involved had taken place in the night intervening 27th and 28/03/1978 and Court martial proceedings had become barred by time on 28/03/1981 under Section 122 of the Act whereafter Section 19 of the Act was not available to be invoked. The High Court of Allahabad in its impugned judgment, formed an opinion that the decision of this Court in Major Radha Krishan v. Union of India, (1996) 3 SCC 507 : (1996 AIR SCW 1548 : AIR 1996 SC 3091) squarely applies to the facts of this case and therefore the exercise of power under Section 19 read with Rule 14 was vitiated. The writ petition has been allowed and the impugned order of termination dated 2-1-1984 has been quashed.
(2.) IN S.L.P. (C) No. 3233/2000 the respondent Harminder Kumar was a Captain in the Army. IN the year 1979 the respondent was found blameworthy for discrepancies in respect of stocks in Fuel Petroleum Depot, Leh between the period 10-3-1979 to 22-3-1979. Summary of evidence having been recorded, on 5-8-1981 a General Court Martial was ordered to be convened on 18-8-1981. On 14-8-1981 the respondent filed a civil writ petition under Article 32 of the Constitution of INdia in this Court wherein, by an interim order, the proceedings in the Court martial were directed to be stayed. On 26-11-1982 the writ petition filed by the respondent was dismissed, consequent whereupon the interim order of stay also stood vacated. On 7-2-1983 the respondent was informed that General Court Martial against the respondent was fixed to be convened on 28-2-1984. However, on 28-2-1984 the Chief of the Army Staff in exercise of the power conferred by Section 19 read with Rule 14 issued a notice to the respondent calling upon him to show cause why his services be not terminated in view of the fact that the Court martial proceedings against the respondent were impracticable and the Chief of the Army Staff was of the opinion that further retention of the respondent in the service was not desirable. Immediately, the respondent filed a writ petition in the High Court of Delhi submitting that the general Court martial proceedings having become barred by time against him on account of lapse of three years from the date of the offence, the notice issued to him was without jurisdiction. Vide Order dated 8/09/1998 the High Court has held, placing reliance on the decision of this Court in Major Radha Krishan v. Union of INdia, (1996) 3 SCC 507 : (1996 AIR SCW 1548 : AIR 1996 SC 3091) that once the Court martial proceedings have become time-barred the Chief of the Army Staff could not have had recourse to Section 19 of the Act read with Rule 14 of the Rules. Consequently, the writ petition has been allowed and show cause notice dated 8/02/1984 directed to be quashed. The Union of India has filed these petitions for special leave to appeal. Delay condoned in filing S.L.P. (C) No. 5155/1998.
(3.) LEAVE granted in both the SLPs. We have heard Shri Altaf Ahmad, the learned Additional Solicitor General for the appellant and Shri Prem Prasad Juneja, Ms. Indu Malhotra and Shri A. Mariarputham, Advocates for the respondents. The principal plea raised on behalf of the appellant and forcefully pressed by the learned Additional Solicitor General at the time of hearing was that Major Radha Krishan's case (1996 AIR SCW 1548 : AIR 1996 SC 3091) was not correctly decided and therefore needs to be reconsidered by this Court for two reasons: firstly, because Major Radha Krishan's case is a decision rendered by two Judges-Bench which does not take notice of the law laid down by this Court in Chief of Army Staff v. Major Dharam Pal Kukrety, (1985) 2 SCC 412 : (AIR 1985 SC 703 : 1986 Lab IC 41 : 1985 Cri LJ 913) which is three-Judges Bench decision; and secondly, the proposition laid down therein is too wide a proposition wholly unsustainable in the light of the express provisions contained in the Army Act the Army Rules and the underlying scheme of the Legislation.;