- (1.) The prayer made in this petition filed under Article 226 of the Constitution is for quashing General Court Martial proceedings held against the petitioner, which were convened under the orders of the General Officer Commanding, 8 Mountain Division C/o 99 APO respondent No. 3. The principal ground for quashing is that respondent No. 3 lacked substantive jurisdiction to convene the Court Martial as he was not competent to order the trial because the petitioner was on deputation to Assam Rifles.
(2.) Brief facts of the case are that the petitioner was granted Emergency Commission in the Army by the President of India in October, 1963. After serving for more than 20 years, he was selected and promoted to the rank of Lieutenant Colonel in the year 1983 and was posted on deputation to Assam Rifles. It is claimed that Assam Rifles is a force raised and maintained under the authority of the Central Government independent of Army. Accordingly, he took over the command of 14 Assam Rifles on 4.7.1983. It has been asserted that during his deputation with Assam Rifles, the petitioner for all purposes belonged to and become part and parcel of Assam Rifles and, therefore, was subject to the jurisdiction and control of Assam Rifles only, which was outside the jurisdiction of Army Commanders and Authorities.
(3.) When the petitioner was on deputation certain irregularities were pointed out against him, which were proceeded with and investigated by a Court of Inquiry. During the course of inquiry certain officers deposed against the petitioner, which finally culminated into Court Martial of the petitioner. Three out of four charges were punishable under Section 63 of the Army Act, 1950 (for brevity, 'the Act'). It is appropriate to mention that the first charge against the petitioner was that he had torn off 2/3 pages from the official register. He was not found guilty on that count. The second charge was for permitting sale of liquor from the Unit Canteen to civilians. The third charge was that the petitioner while commanding 14 Battalion Assam Rifles improperly omitted to ensure depositing of Rs. 2,637/-, the sale proceeds of 1200 surplus gunny bags in the Government treasury. The fourth charge was that the petitioner absented himself without leave from the Assam Rifles Training Centre, Dimapur, from 25 to 26 February, 1986. The petitioner pleaded guilty to the 2nd, 3rd and 4th charge. During the proceedings of General Court Martial, the petitioner was found guilty of three charges out of four and the General Court Martial awarded the following punishments to the petitioner :- "a) Forfeitures : To forfeit 4 years past service for the purpose of pension. b) Severe reprimand : To be severely reprimanded. c) Stoppage : To be put under stoppage of pay and allowances until he has made good the sum of Rs. 2637/- (Rupees two thousand six hundred thirty seven only) in respect of the sale proceeds of 1200 surplus gunny bags." His Pre-confirmation petition was rejected by the Confirming Authority on the ground that it lacked substance and the findings were confirmed along with the sentence on 28.4.1988. The sentence was promulgated on 11.7.1988 by sending a Registered A.D. letter of that date.;