- (1.) SUDHIR Agarwal, J. The respondent-appellants have preferred this appeal against the judgment dated 29-8-2001 passed by the Hon'ble Single Judge whereby the writ petition No. 29244 of 1999 of the petitioner-respondent has been allowed and setting aside the punishment order dated 16-9-1997 and appellate order dated 28-5- 1999 the appellants are directed to provide all consequential benefits to the petitioner-respondent.
(2.) BRIEF facts giving rise to this case are that the petitioner- respondent was enrolled on 25-10-1980 and earmarked for Army Service corps. He remained posted at different places and on 15-3-1993 was posted to 680 Tk Tptr PI ASC, where the Officer Commanding was Lt. Col. P. Bhatnagar On 6th August, 1994, when the petitioner was on Sentry Duty at main gate around 23. 00 Hrs. , a Civil Truck bearing registration No. MP-20 E 0043 entered garage entrance gate which was across the road diagonally opposite to the Main Entrance Gate. The petitioner-respondent becoming suspicious raised alarm and checked the vehicle whereupon found four empty barrels of Fuel, Oils and Lubricants (in short FOL) loaded in the vehicle and the driver was a civilian, who confessed that he used to come with empty barrels and go with filled barrels. The petitioner claims to have informed the higher authorities about this matter, but it appears that one Naib-subedar Lal Singh came as Duty JCO and got the barrels filled whereafter the vehicle was permitted to go. The petitioner claimed that Lt. Col. P. Bhatnagar was involved in the aforesaid activities. However in order to harass the petitioner-respondent, he got departmental proceedings initiated. A Court of Inquiry was ordered against the petitioner and a tentative charge-sheet dated 5-9-1995 was issued which was typed in English language without appending a vernacular translation thereof as required under Para 8 (a) of Appendix III of Army Rules, 1954. Thereafter, under Rule 23 of the Army Rules, a charge-sheet dated 12-6-1997 was served upon the petitioner-respondent on 13-6-1997 and trial commenced on 14-6-1997. The petitioner requested the authorities to permit him defence through the assistance of civil lawyer in Summary Court Martial. The proceedings were adjourned and resumed on 15-9-1997 and concluded on 16-9-1997. Instead of permitting the petitioner to be represented through a Counsel of his choice, one Subedar Budhi Ballabh was permitted to appear as 'friend of Accused' though on the date fixed even he was not present and one Lt. Col. Mahendra Kumar Sharma is said to be present. In the Summary Court Martial, the petitioner was awarded following punishments: (A) to suffer rigorous imprisonment for three months in civil jail; (B) dismissal from service. The petitioner preferred a statutory petition under Section 164 (2) of Army Act, 1950. Since, the aforesaid petition remained undecided, the petitioner-respondent approached this Court in writ petition No. 37038 of 1998, which was finally disposed of on 7-12-1998 directing Chief of Army Staff to consider and dispose of the petitioner's statutory petition within a period of two months from the date of communication of the order. Consequently, the Chief of the Army Staff passed final order on 28-5-1999 setting aside findings on charges Nos. 1 and 2 recorded against the petitioner on technical grounds, but holding that even thereafter, the remaining third charge was very grave in nature and sufficient to attract the punishment already awarded and, therefore, upheld the punishment. Aggrieved, the respondent approached this Court in writ petition which has been allowed by the judgment under appeal. The Hon'ble Single Judge has recorded briefly the following findings to arrive at the conclusion that the order impugned in the writ petition is vitiated in law: (1) non-compliance of Rules 33 (7) and 34 of the Army Rules; (2) by denying assistance of civil lawyer, Rule 129 of the Army Rules has been violated; (3) an offence under Section 56 (a) of the Army Act was not made out and the punishment awarded and upheld by the Chief of the Army Staff in respect to charge No. 3, therefore, was vitiated. Learned Counsel for both the parties, besides making oral submissions, have also submitted written submissions.
(3.) SRI K. C. Sinha, Assistant Solicitor General has assailed the judgment under appeal on the aforesaid three findings and advanced his submissions contending that after service of charge-sheet, the Summary Court Martial assembled on 14-6-1997 and thereafter adjourned and reassembled on 15-9-1997 and proceeded to examine witnesses of the facts of the case. The Summary Court Martial concluded on 16- 9-1997 whereafter the punishments were imposed. The statutory petition dated 4-4-1998 submitted by the petitioner under Section 164 (2) was decided by the Chief of the Army Staff on 28-5-1999 and though findings pertaining to charge Nos. 1 and 2 were set aside, the finding in respect of charge No. 3 was upheld and the punishment imposed upon the petitioner found commensurating to the gravity of charge. It is contended that the purpose of supplying copy of charges to the petitioner-respondent before trial commenced is to provide him time to prepare his case for defence. It is claimed when the tentative charge-sheet was served on 5-9-1995 and the final charge-sheet was issued on 12-6-1997, i. e. , after about 1 year 9 months, the petitioner-respondent has sufficient time in the meanwhile to prepare his defence. The Summary Court Martial proceedings, though commenced on 14-6-1997, but without any proceedings, it was adjourned and reassembled after three months giving again sufficient time to petitioner-respondent to prepare his defence. At the time of reassembly of Summary Court Martial, the petitioner-respondent did not raise any objection regarding non-compliance of Rules 33 (7) and 34 of Army Rules showing that the petitioner-respondent was fully satisfied and in any case, he was not prejudiced at all. He participated in proceedings and cross-examined all prosecution witnesses. In the circumstances, even if there is a technical non-compliance of Rule 33 (7) and Rule 34 of the Army Rules, the same would not vitiate the proceedings in its entirety. It is also contended that Rules 33 (7) and 34 of the Army Rules are directory and not mandatory and, therefore, the Hon'ble Single Judge has erred in law by holding that the Summary Court Martial proceedings are vitiated for non-compliance of Rule 34 of Army Rules. With respect to violation of Army Rule 129, it is contended that the petitioner-respondent submitted an application seeking leave to engage a defence lawyer. He was permitted five days' leave with the permission to engage a civil defence lawyer but he could not engage any one and the commanding officer, thereafter, provided Subedar Budhi Ballabh as "fried of Accused". However, since, Subedar Budhar Ballabh could not attend the Court, Lt. Col. Mahendra Kumar Sharma was appointed as "friend of the Accused" to which the petitioner-respondent did not raise any objection at all and Lt. Col. Mahendra Kumar Sharma participated in the proceeding as "friend of Accused". It is contended that in these circumstances, there is no violation of Rule 129 of the Army Rules and the Hon'ble Single Judge has erred in law in taking a different view.;