R.K.AGRAWAL, J. - (1.) THE present Special Appeal has been filed against the judgment and order dated 10 -1 -2001 passed by the learned Single Judge in C.M. Writ Petition No. 35346 of 1997 whereby the writ petition has been dismissed.
(2.) BRIEFLY stated the facts giving rise to the present special appeal are as follows: According to the appellant writ petitioner he was enrolled in the Indian Army on 25 -2 -1984. He was shifted to Holding Battery Depot Regiment Nasik Road Camp on 12 -6 -1996 and thereafter to R.P. Section Depot on 3 -7 -1996 on medical grounds. According to the appellant writ petitioner he was admonished by one Shri Sulkhan Singh, R.P. Hawaldar on 4 -7 -1996 and was asked to work under him. It is alleged that he was required to give a Bottle of Rum (wine) as bribe otherwise he was to face dire consequences. The appellant writ petitioner did not oblige and instead reported the matter to the Commanding Officer vide representation dated 16 -7 -1996. An inquiry was initiated but the appellant writ petitioner was not associated and he was not afforded any opportunity to examine or cross -examine the witnesses and Summary Court Martial was held and the appellant writ petitioner was dismissed from service vide order dated 28 -10 -1996 passed by the Commanding Officer, Artillery Regiment, Nasik Road. The appellant writ petitioner preferred a departmental appeal before the General Officer Commanding in Chief, Southern Command, Poona, Maharastra which was sent by registered post on 24 -12 -1996. When the appeal was not being decided, he approached the Court by means of a writ petition which was disposed of with the direction to the concerned authority to decide the appeal within two months. The appeal was dismissed vide order dated 25 -6 -1997. Both the orders of dismissal dated 28 -10 -1996 and the order dated 25 -6 -1997 rejecting his appeal was challenged by the appellant writ petitioner before this Court by means of a C.M. Writ Petition No. 35346 of 1997 which has been dismissed by the learned Single Judge vide judgment and order dated 10 -1 -2001 which is under challenge in the present Special Appeal. We have heard Shri Ajai Bhanot, learned Counsel for the appellant writ petitioner and Shri Narendra Prasad Shukla, learned Standing Counsel appearing for the respondents. The learned Counsel for the appellant writ petitioner submitted that the Summary Court Martial proceedings were in flagrant violation of mandatory provisions of Army Act, 1950 (hereinafter referred as the Act) and the Army Rules, 1954 (hereinafter referred as Rules) which went to the very root of the constitution and the proceedings of the Summary Court Martial were enough to vitiate the entire proceedings including the punishment imposed there under. He further submitted that the punishment awarded to the appellant writ petitioner was strikingly disproportionate to the misconduct alleged on the part of the appellant writ petitioner and it should shock the conscience of this Court. The following charge was framed : Making a false accusation against a person subject to the Army Act knowing such accusation to be false. In that he, at Nasik Road Camp on 16 -7 -1996 made written false accusation to Commanding Officer against Number 14348093 -M Lance Hawaldar (General Duties) Sulkhan Singh, Regimental Police stating that he takes Rs. 50/ -(Rupees Fifty only), or a bottle of Rum from new comers and Rs. 100/ -(Rupees Hundred Only) from Regimental Staff for any default well knowing the said statement to be false. Which shows that the Summary Court Martial proceedings were initiated against the appellant writ petitioner to check the guilt in respect of the aforesaid offence which resulted in the dismissal. The charge was not so grave so as to warrant the extreme penalty of dismissal from service. He relied upon a decision of the Hon'ble Supreme Court in the case of Ranjeet Thakur v. Union of India, reported in AIR 1987 SC 2386 and Ex. Naik Sardar Singh v. Union of India and others, reported in AIR 1992 SC 417. He further submitted that the mandatory provisions were violated and procedural impropriety were committed in the Court Martial proceedings which was observed more in breach rather than in adherence. He further submitted that Rule 33(7) and Rule 34 of the Army Rules, 1954 which provided for right of accused to prepare defence and warning of accused for trial was not complied with neither any charge -sheet was served nor the summary of evidence was given to the appellant writ petitioner throughout the proceedings left alone 96 hours interval prescribed by the said provisions between the supply of the aforesaid documents in the commencement of the proceedings. He submitted that the violation of the aforesaid Rule is sufficient and grave enough to vitiate the entire Court Martial proceedings. In support thereof he relied upon a decision in the case of Ram Pravesh Rai v. Union of India and others, reported in 1988 UPLBEC 783, wherein this Court has held that failure to provide a copy of the charge -sheet and summary of evidence 96 hours before the actual trial and allowing the gap of 96 hours between the petitioner being so informed of his actual trial would vitiate the entire Court Martial proceedings. However, the information should be given from the Presiding Officer as provided in the Rules.
(3.) HE further submitted that the provisions of Section 33 of the Act and Rule 44 of the Rules have also been violated as the petitioner was not informed about the name of the Presiding Officer and the Members so that he may raise his objection, if any, which vitiate the entire proceedings. He relied upon the decisions of the Hon'ble Supreme Court in the case of Ranjeet Thakur v. Union of India, 1997 SC 2386 and Ltd. Col. Preti Pal Singh Bvedi v. Union of India and others, AIR 1982 SC 1413. He further submitted that Rule 129 of the Act and Rule 33 of the Army Rules, have also been violated as he was not given the help of any person to assist him during the trial which would violate the principle of natural justice. He relied upon a decision of this Court in the case of Union of India v. Rameshwar Mahto, 1993 AWC 883.;