Prem Chand Jain, J. - (1.) THE only question that was canvassed before us was as regards the validity of the order contained in Memorandum No. PCA/31300/PSI (Vig)/49, dated July 21, 1972, issued by the Government of India, Ministry of Defence rejecting the Petitioner's petition in exercise of the powers conferred under Sections 164(2) and 165 of the Army Act, 1950 (hereinafter referred to as the Act).
(2.) LT . Col. K.N.S. Sidhu, who has filed this petition under Articles 226 and 227 of of the Constitution of India, was commissioned as an officer in the Army Service Corps on February 1, 1946, and thereafter, in due course, he was promoted as substantive Lieutenant -Colonel on February 14, 1967. After the promotion as Lieutenant -Colonel on February 14, 1967, the Petitioner was appointed as Officer Commanding, 1969 Coy ASC (Supplies), which was operating Rail Head Supply Depot, Pathankot. During the period of posting at Pathankot, the Petitioner was found guilty of certain irregularities. He was charge -sheeted and a general court -martial was convened for his trial. After recording the evidence, the General Court Martial found the Petitioner guilty of Charge No. 1 and passed the sentenced "to be cashiered", vide order dated October 21, 1970 (Copy attached with the petition as Annexure 'K'). Feeling aggrieved from the order of the General Court Martial, a petition Was preferred to the Government of India, Ministry of Defence, which, as earlier observed, was rejected, vide order, dated July 21, 1972 (copy Annexure 'M' to the petition) which 'reads' as under: I am directed to say that the Central Government after considering the petitions dated 18th May, 1971, 20th August, 1971, 20th November, 1971; and dated nil, submitted by you under Sections 164(2) and 165 of the Army Act, 1950, against the sentence of GCM held at Pathankot on 5th October, 1970, hereby reject the said petitions. This petition came up for hearing before my learned brother Bains, J., who, considering that the point involved in the petition was of considerable importance, decided to refer the matter to a larger Bench. That is how we are seized of the matter.
(3.) BEFORE us the only contention raised by Shri H.L. Sibal, Senior Advocate, learned Counsel for the Petitioner, was that before passing an order under Sub -section (2) of Section 164 of the Act; it was incumbent on the appropriate authority to have afforded an opportunity of personal hearing to the Petitioner when the same was asked for by him and that the said opportunity having not been afforded, the order of the Central Government rejecting the petition of the Petitioner in exercise of its powers conferred by Sub -section (2) of Section 164 of the Act, cannot legally be sustained. On the other hand, Shri M.S. Liberhan, learned Counsel for the Respondents, submitted that it was not obligatory on the Central Government to have afforded an opportunity of personal hearing to the Petitioner as such was not the requirement under the relevant provisions of the Act and that the petition filed by the Petitioner was rightly rejected by the Central Government.;