- (1.) D. K. Seth, J. While assailing the impugned order of punishment dated 11-4-1992 contained in Annexure-5 to this writ petition, Mr. Ashok Mehta, learned Counsel for the petitioner, had contended that out of the allegations in which the said order of punishment was inflicted after summary court martial, recovery was af fected under Section 91 (g) of the Army Act and, therefore, the summary court martial is hit by Section 121 read with Rule 53 of the Army Rules. In order to substan tiate his contention, Mr. Mehta submitted that under Section 25 of the Army Act, no deduction can be made from the pay of the person subjected to Army Act except authorised by or under by this or under any other Act. Section 91 (g) prescribes the authority to deduct if any loss is caused by the conduct of such person. The loss having been recovered under Section 91 (g) from the petitioner, which is the admitted position and such recovery being penal in nature as is apparent from the expression used in Section 91 which uses the-expression 'penal deduction' and such deduction under Section 91 (g) being a punishment within the meaning of Sec tion 80 (i), once such deduction is made, the same is punishment. Punishment being dealt with under Section 91 (g), he cannot be subjected to be tried again for the same offence by a Court martial or dealt with under Section 80, 83 & 85 in view of the provisions contained in Sec tion 121 read with Rule 53 which bars trial in respect of the offences which has been tried by Court martial or dealt with pre viously. According to the learned Counsel, Section 80 is a protection, under which a person is entitled to take shelter since in Clause (i) penal deduction under Section 91 (g) has been described as a punishment which having been dealt with previously, the petitioner could not be subjected to summary court martial and therefore, the punishment inflicted being hit by the prin ciple of double jeopardy as provided under Section 121 read with Rule 53 cannot be sustained and is liable to be quashed. He contends further that the rules and regula tions are framed under Sections 191 & 192 respectively and such regulation having been framed as to reconcile with the ap plication of the said provisions relating to enlistment of punishment which prescribes in regulation 448 that the char ges alleged against the petitioner should have been awarded according to the table of punishment, which does not postulate awarding of punishment of dismissal as in the present case which according to him could have been rigorous imprisonment for three months or six months as the case may be, on the basis of the charges levelled against him. Thus, according to him, the punishment awarded is also dispropor tionate and wholly outside the scope and ambit of scale of punishment as provided therein. He contends further that the Army Act is a complete Code in itself with regard to service conditions and penalties provided therein for various offences as the case may be. Accordingly in the Act, Rules and Regulations adequate and ap propriate safety valves have been provided which are of great importance and to be followed scrupulously. In as much as in order to protect from the excess exercise of jurisdiction, several measures have been provided and specific scope and arnbit has been laid down, within which entire process has to be confined and as such stress is to be laid on safety valves provided in Section 121 read with Rule 53 and as well as Regulation 448, Section 80 read with Section 25, 91 (g) respectively and in case of any doubt, it has to be interpreted for the benefit of delinquent subjected to punishment.
(2.) MR. Sushil Harkauli, learned Counsel for the respondents on the other hand, contends that the bar as provided in Rule 121 read with Rule 53 is confined in its application within the scope of inflict ing punishment under any of the provisions which empowers the authority to try a person either through Court mar tial or to deal with the person for inflicting such punishment. He had led me through the scheme of the Act, Rules and Regula tions and had pointed out that nowhere in the Act, Rules or Regulations, Section 91 (g) has been specified as a process of in flicting punishment or an award for the deduction under Section 91 (g) can be termed to be a penalty inflicted after a trial by Court martial or after a person is dealt with in connection with the offence. That is one of the reason why in Section 80 (i), Section 91 (g) has been included separately as punishment independent of Section 91 (g) which can be resorted to as ad ministratively. According to him, there is a distinction between an administrative decision and judicial decision in as much as section 91 (g) can be exercised ad ministratively for recovery of the loss by deduction as authorised under Section 91 (g) whereas the same can be resorted to by way of punishment while dealing with or trying an offence under any of the provisions which empowers the ap propriate authority to exercise the powers for trying the offences and inflicting punishment. According to him, in the present case, two charges were levelled one under Section 36 (d) and the other under Section 63. The said charges, he points out from the charge-sheet, were not meant for trial meant for trying an offence for causing loss as contemplated in Sec tion 91 (g ). On the other hand, the charges were levelled for quitting his post without any orders from his superiors and for con ducting himself in a manner prejudicial to Army discipline. Though it might have resulted in the loss but still then the char ges were never meant for trying any of fence for causing any loss and as such no punishment under Section 91 (g) having been inflicted, the provisions of Section 121 read with Rule 53 cannot be imported. According to him, the award for deduction was an administrative action and there is nothing on record to show that it was in flicted by way of punishment in exercise of the jurisdiction under Section 80. The of fence that resulted into loss is a different kind of offence within the meaning of Sec tion 52, under which no charge was framed against the petitioner. Therefore, there cannot be any conflict between trial of the petitioner under Section 36 read with Sec tion 63 and deduction of the amount under Section 91 (g ). Though it could have been a conflict if there is a charge under Section 52. MR. Harkauli also points out that the punishment that could have been inflicted on both these charges, under Section 36 or under Section 63 in the order of scale of punishment provided in Section 71. Point ing out clause (e) of Section 71, he con tends that the petitioner was inflicted a lesser punishment than what could have been inflicted on account of both these charges. He further contends that only when punishment contemplated under Section 91 (g) is inflicted, under Section 80, the application of Section 121 read with Rule 53 could be attracted. There fore, the writ petition should be dismissed. I have heard both the learned Counsels at length. From the charge-sheet it appears that two charges were levelled against the petitioner. The first charge was under Section 36 (d) alleging that the petitioner had left his guard without or ders from his superior officers, at Jhansi between 0400 hours and 0600 hours on 10th March, 1992 when on Sentry duty at 218 Medium Regiment Officers Mess guard. The second charge was an act prejudicial to good order and military dis cipline under Section 63, in that he, at Jhansi, on 10th March, 1992 between 0400 hours and 0600 hours, while posted as Sentry at 218 Medium Regiment Officers Mess guard. So negligently performed his duties resulting in the loss of liquor worth Rs. 1995. 73 from the said mess. Thus, it appears that the first charge was under Section 36 with regard to quitting Sentry post without orders from his superiors and by reason thereof there was indiscipline and thus he had acted in a manner prejudicial to good order and military discipline. In order to show that his conduct was prejudicial to the military discipline, the result of quitting the post was indicated. The loss of liquor as men tioned was not indicated to frame a charge for being tried. It was only used for the purpose of indicating indiscipline which was prejudicial to good order and military discipline. In case it was intended that the petitioner was also charged and was to be tried for the loss, in that event, a charge under Section 52 ought to have been framed against the petitioner.
(3.) THUS, the petitioner having not been tried on account of the loss caused by him and having been tried only for the offence contemplated under Sections 36 and 63, it cannot be said that the said trial is a trial with regard to the same offence. One conduct of a person may in clude ingredients of establishing several offences. The allegation was that the petitioner had left his Sentry post between 0400 hours and 0600 hours and that there was loss of liquor worth Rs. 1995. 73. Such conduct has two different distinct parts, one is that he had left Sentry post without orders from his superiors and the other part is that he had caused loss of Rs. 1995. 73. Causing loss may not be an act prejudicial to good order and military dis cipline, which may be a different kind of offence under Section 52 or otherwise. But leaving Sentry post without orders from the superiors is definitely an act prejudi cial to good order and military discipline. If there are several components of single conduct resulting into different kind of offences and only one kind of offence is tried, leaving other components resulting into another offences, in that event, there cannot be any question of contending that a person is being tried for the same of fence.;