- (1.) JAGDISH Bhalla, J. This writ peti tion is directed against the sentence dated 6th December, 1980 passed by the General Court Martial.
(2.) ACCORDING to the petitioner he was commissioned in the Indian Army in Raj put Regiment and in due course of time attained the rank of Major in Rajput Regi ment which formed part of 25th Infantry Division which in turn was part of 16th Corps of the Indian Army. In the year 1978 the petitioner was posted in the Rajput Regiment as 2 1c. i. e. 2jid-in-Command under the Commanding Officer Lt. Col. S. N. Verma and one Major V K. Singh was also posted as Company Commander in the same Regiment. The Commanding Of ficer Lt. Col. S. N. Verma went on leave on 14th October, 78 and before proceeding on leave he had sanctined seven days Casual-leave to Major V K. Singh. How ever, due to operational reasons Major V K. Singh could not be sent on leave imme diately. The petitioner, who was officiat ing in absence of Lt. Col. S. N. Verma, informed Major V. K. Singh to go on seven days casual leave with effect from 17th October, 1978. According to the petitioner, the whole controversy which led to the punishment to the petitioner Ls connected with the late coming of Major V K. Singh from seven days casual leave. According to the petitioner, Major V K. Singh had over stayed for three days his seven days' casual-leave and returned back after ten days. It has also been contended by the petitioner that father-in-law of Major V. K. Singh was the Deputy speaker of the Haryana As sembly at the relevant time and was a very influential person and was friendly to Lt. General Gurbachan Singh, respondent No. 3 to this writ petition. It has also been indicated that the father-in-law of Major VK. Singh spoke to respondent No. 3 and requested him to sort out his son-in-law's problem (Major V. K. Singh ). According to the petitioner, this facts was born out from the proceedings of Court of Inquiry para 258 (j) which is reproduced below: "258. xxx xxx (j) Maj. Kukrety also stated that he was aware of a telephone conversation between Maj V. K Singh and his wife wherein his wife in formed Maj. V. K. Singh that her (Mrs. V. K. Singh's) father had spoken to the Army Com mander and that everything would be sorted out. Now as Maj Kukratey put it 'it is between General Gurbachan Singh and Shri Ramchandraji'or words to that effect, Maj Kukraty said that the General Officers Commanding and the Brigadier Commander were under pres sure from higher head quarters on this ac count. " Thereafter on 1st December, 1978 Maj. V. K. Singh was remanded and produced before Brigadier P. N. Kackar, respondent No. 6 who was the Brigade Commander. It has been alleged by the petitioner that the petitioner was also asked to be present before Brigade Com mander and from his actions, the petitioner came to the conclusion that the Brigade Commander did not want to proceed with the case of Major V K. Singh and actually wanted to drop the same. Ac cording to the petitioner, the petitioner came to know that the then Deputy General Officer Commanding of 25 In fantry Division, Brigadier Y. P. Bakshi and Staff Officer Ltd. Col. S. N. Kuttappa had advised respondent No. 6 to drop the dis ciplinary proceedings against Major V. K. Singh. At this lime the petitioner on 4th December, 1978 personally met respon dent No. 6 and apprised him of the back ground of the case and insisted that in the interest of discipline in the Rajput regi ment, if the nation is not dealt with suitab ly, then a bad precedent would be see in the Unit. According to the petitioner, he sought personal interview with respon dent No. 4 on 4th December, 1978 but was no allowed to see him as he was interested that the case of Major V. K, Singh be dropped. On 16th December 1978 Major V. K. Singh was awarded Displeasure not to be recorded. The petitioner felt ag grieved as according to him this was no punishment at all and more so because there was a break in service and it could only be regularised by a Court Martial and not be administrative action. Further more, the had no face to show to the men of his unit as the unit had been very strict towards other men who indulged in any breach of discipline or good order.
(3.) IN the meantime Lt. Col S. N. Verma Came back form his leave and he was apprised by the petitioner with regard to break of service of Major V. K. Singh as he had overstayed the casual leave from 7 days to 10 days and the petitioner asked for attachment to some other unit and tem porarily handed over his command of second Rajput Regiment to Major T. Mathew. However, the Headquarter 93 IN fantry Brigade directed that the command need not be handed over till written direc tion are received. The Commanding Of ficer subsequently withdrew his request for attachment to some other unit but the petitioner revived his demand for attach ment to some other unit and also repre sented for an interview with General Of ficer Commanding-in-Chief (GOC-in-C ). The said request of the petitioner was not relished by respondent No. 4. According to the petitioner, the respondent No. 6 in collusion with respondent No. 4 started running for the petitioner. IN these cir cumstances, on 21st December, 1978 ac tion against the petitioner was intiated out he behest of respondent No. 4 who on said date called respondent No. 6 and sent Major P. Mehta, his Brigade Major, with an ambulance along with Capt. Prakash (Doctor) to 2-Rajput Regiment base with instructions to Lt. Col. Verma that the petitioner should be made a psychiatric case for investigation and he be put on AFMS - 10 (Form used for referring military personnel to psychiatrist ). This fact was told to the petitioner by Capatain Mangunath, Regimental Medical Officer of 2-Rajput Regiment on 22nd December, 1978. However, the petitioner could not be put on AFMS - 10 because the authorities of 2 Raj put Regiment were un able to implement it. IN this behalf the evidence of Captain Prakash who ap peared in the proceedings as witness No. 5, in paragraph 232, is set out herein below. "232. On 21st December, 1978, after lunch I was called by the Brigadier Maj. Of 93 INfantry Brigade (Brigadier Kacker), Staff Of ficer, on the telephone telling me to send an ambulance vehicle and come myself to 2-Rajput Administration Base to evacuate a patient to Rajauri to 160 General Hospital. I then got an ambulance ready and came to Brigade Head quarters. The Brigade Maj asked me to obtain AFMS -10 and with it come to 2 Rajput ad ministration base. " It has been averred by the petitioner that on the same very day, i. e. 21st December, 1978 when the ambulance and the doctor was sent back, respondent No. 6 at the behest of respondent No. 4 sent another ambulance to evacuate the petitioner to Advance Dressing Station Hospital in the filed for treatment and ad vice. Respondent No. 6 again requested 2 Rajput Regiment authorities for accom panying the petitioner to Advance Dressing Station. However, this again could not be done. This fact, as alleged by the petitioner, would be apparent from the statement of Captain Manjunath, witness No. 7 in the Court of INquiry. The statement of witness No. 7 may be quoted as below: "287. At about 18. 00 hours on 21st December, 1978 Major kukrety came out of the Mandir and both of us went to the Officer's mess. I left him in his room. Later I met the adjutant who told me about the ambulance vehicle and the B. M's (Brigade Major's) visit to the unit with AFMS-10 to take Major Kukrety. He also told me that the acmbulance had been sent back on hearing of this incident from this Adjutent. I was surprised and feit annoyed be cause I felt that there on AFMS i O. Apart from Major Kukrety being a little sad, I had a little while ago left him in otherwise normal health. "238. On 22nd December, 1978 Major Kukrety went to Rakh Haveli in the morning. Around 14. 30 hours he talked to me from for ward defended locality late and told me that he was not well as he had a headache. I told him to come down. INstead he asked me to come upto forward defenced locality Lata, if possible. I was also called by the Commanding Officer and told to go and see Major Kukrety and also to bring him down to administration base, if possible. The Commanding Officer looked worried. " It has further been averred in the petition that when respondent No. 4 came to know about the failure on the part of the respondent No. 6 to evacuate the petitioner to a hospital, he became very much annoyed and in a spirit of vengeance issued an "order on 22nd December, 1978 at 7. 30 p. m. for attachment of the petitioner to 10 INfantry Brigade to con duct an exercise of all Officers of 10 IN fantry Brigade. This was a ruse set up by respondent No. 4 and respondent No. 6 to grab the petitioner as soon as he is out of his regiment. The petitioner has sub mitted that such exercise is conducted only by Officer of the rank of Ltd. Col. who are Staff College qualified and the order was motivated as its only purpose was to get hold of the petitioner and put him on AFMS-10. However, the petitioner cold not be spared as he was to make prepara tions for "op SHIKAR" (a code name for an exercise in the Army ). It has been sub mitted that when all the attempts of respondents No. 4 and 6 failed to some how arrest the petitioner and make him a mental case, then they prevailed upon the petitioner's Commanding Officer Ltd. Col. S. N. Verma to arrest the petitioner for the time being and left off after the case of Major V K. Singh is settled. The Com manding Officer called the petitioner on 24th December, 1978 and wanted to arrest him. The petitioner immediately took out his belt and handed over to the Command ing Officer but also asked him on what charge he was being arrested. As there was no charge against the petitioner and it was being done illegally because respondents No. 4 and 6 wanted the to petitioner to borne how withdraw the request to see the G. O. C. in C. 16 corps and arrest him with an intention to put him on AFMS-10, the Commanding Officer relumed the belt to the petitioner and did not affect the arrest when all the attempts oi respondent Nos. 4 and 6 failed to arrest the petitioner, then in the early hours of 28th December, 1978 the entire 'lala' post was encircled by troops from 15 Mahar Regiment, 2/3 Gorkha Rifles and 8 Mumaon Regiment. However, the petitioner refused to vacate his post at 'lata' in the sence of a tenta tive charge-sheet as throughout apprehensive that he might be made a psychiatric case. The petitioner has sub mitted that it was within his right to meet the C. O. C.-in- C. ,16 Corps to approse him as to how the disputing of the regiment had been spoilt by the respondent Nos. 4 and 6. It has further been averred that on the 28th December, 1978 itself, at about 12. 00 hours the petitioner was called to BHIM post by Maj. General A. V Natu, the Chief of Staff feeling secured, the petitioner apprised the General about the whole episode who asked him to come to Nagrota at Nagrota respondent No. 4, al though junior to Major General A. V Natu, arrested the petitioner but failed to put the petitioner on AFMS-10. The petitioner was attached to 2/3 Gorkha Rifles and was kept under cross arrest with armed guards. On the above facts, a Court of Inquiry was held and it was conducted by Officer outside the 25th Infantry Division but by the Officers of the 16 Corps. The General Court Martial pronounced its judgment on 6-12-1980 and the proceed ings were confirmed by the Chief of the Army Staff on 31st January, 1983. There after the order of the General Court Mar tial was promulgated on 1st March, 1983 and the petitioner was sent to the Jammu Jail from where he was transferred to Naini Central Jail on 20th may, 1983.;