- (1.) Prayer in this writ petition, filed under Article 226 of the Constitution of India, is for issuance of a writ, order or direction for quashing the proceedings of the General Court Martial dated 21.4.1999, whereby the conviction of the petitioner was recorded on the twelfth charge and the sentence of reprimand awarded to the petitioner, as also all consequential orders passed in respect thereof.
(2.) The petitioner herein is a Commissioned Officer, who joined the Indian Army on 24.12.1982. The petitioner was posted in 168 Field Regiment from 1987 to 1992. He filed certain complaints with respect to mal-practices in the CSD Canteen. During inquiry into these complaints, the petitioner was threatened with physical harm. This fact was brought to the notice of the Commander 29 Artillery Brigade through a letter dated 27.9.1991. However, nothing came of the aforementioned communication. The petitioner sought an interview with the GOC 29 Infantry Division vide letter dated 29.4.1992. Once again, his grievance remain un-addressed. Consequently, the petitioner sought an interview with the GOC Corps vide letter dated 9.6.1992. The petitioner was granted an interview by GOC 29 Inf. Division on 8.7.1992. During the course of the interview, the petitioner presented a written complaint levelling allegations of acts of dishonesty committed by Col. CS Dhillon while functioning as Commanding Officer 168 Field Regiment. The petitioner also requested for a high powered inquiry. The petitioner also complained against the conduct of Brigadier Harjeet Singh Brar, Commander 29 Artillery Brigade. A Court of Inquiry was ordered. It is alleged that the petitioner was forced to withdraw his complaint, on account of pressure exerted by Col. CS Dhillon, Brig Brar and Maj Gen Dhillon. The Court of Inquiry, unearthed various acts of misconduct. Proceedings were initiated against Col. CS Dhillon and ultimately a charge-sheet was served upon him. Thereafter another Court of Inquiry was held and as a result, the petitioner was served with a charge-sheet levelling twelve charges. Nine out of these charges, flowed from the petitioner's complaint dated 9.7.1992. A General Court Martial was convened. After conclusion of the General Court Martial, the petitioner was held guilty of nine charges but acquitted with respect to charges 4, 10 and 11. The petitioner was sentenced to forfeiture of two years service for the purpose of promotion, forfeiture of two years past service for the purpose of pension and severely reprimanded. This punishment was duly confirmed by the confirming authority. The petitioner, thereafter, filed an appeal/a post confirmation petition under Section 164 of the Army Act. The said petition was accepted in part. The petitioner was exonerated of all charges except the twelfth charge. Counsel for the petitioner contends the charge, framed under Section 56-A of the Army Act, namely the twelfth charge, is inherently flawed. Section 56-A of the Army Act, envisages punishment for levelling false accusations against any person subject to the discipline of the Army Act, knowing or having reason to believe that such accusation to be false.
(3.) It is contended that a perusal of the twelfth charge as framed and the facts disclosed therein, reveal that the charge should have been framed under Section 60 of the Army Act. The twelfth charges arises from certain allegations levelled in an additional written statement, dated 12.10.1992, filed by the petitioner, during a Court of Inquiry. It is contended that the charge as framed, and the facts as disclosed fall within the mischief of Section 60 and not Section 56(a) of the Army Act. Section 56(a), prescribes punishment for general complaints but Section 60 relates to a statement specifically made before a Court Martial or other Court competent under the Army Act to administer on oath or affirmation. As the affidavit was allegedly presented by the petitioner before a Court of Inquiry, which is competent to administer on oath under Rule 181, the petitioner should have been charged under Section 60 and not Section 56(a) of the Army Act. It is, thus, contended that as the petitioner has been incorrectly charged, all proceedings namely the Court Martial, the punishment imposed, the confirmation thereof and rejection of the post confirmation petition should be set aside.;