LT COL PRITHI PAL SINGH BEDI CAPT DHARAM PAL KUKRETY GAPT CHANDER KUMAR CHOPRA Vs. UNION OF INDIA

JUDGEMENT

(1.) VALIDITY and legality of an order made against each petitioner convening General Court Martial to try each petitioner in respect of the charges framed against each of them is questioned on diverse grounds but principally the composition in each of these petitions under Art. 32 of the Constitution. In Writ Petition No. 4903/81 the petitioner. has also challenged the constitutional validity of Rules, 22, 23, 25 and 40, of the Army Rules, 1954 ('Rules' for short) as being violative of the fundamental rights of the petitioner guaranteed under Articles 14 and 21 of the Constitution. As certain contentions were common to all the three petitions they were heard together and are being disposed of by this common judgment. Facts alleged on which legal formulations were founded may be briefly set out in respect of each petitioner.

(2.) PETITIONER Lt. Col. Prithipal Singh Bedi was granted. permanent regular commission in the Regiment of Artillery in 1958 and in course of his service he came to be promoted as Captain, then as Major and at the relevant time he was holding the rank of Lt. Colonel and in that capacity he was designated as Commanding Officer, 226, Medium Regiment of 43 Artillery Brigade. As part of his duty he had to write, interim confidential reports of five officers of the rank of Major. subordinate to hint. One Major R. S. Sehgal was one of the subordinate officers whose interim confidential report was written by the petitioner. Under the relevant rules the officer whose confidential report is written by his superior has to be shown the confidential report and in token of his having seen the same his signature is to be obtained, the purpose underlying this procedure being that the attention of the subordinate officer is drawn to the counselling remark in the confidential report which may encourage him to remedy the defect pointed out and to improve in his efficiency. The confidential reports prepared by the petitioner were to be reviewed by the Brigadier. It is alleged that Brig. N. Sondhi, AVSM who held the office of the Brigadier and under whom the petitioner was working as Lt. Colonel at the time of writing reports had already been transferred on Jan. 8, 1980, and, therefore, the confidential reports submitted by the petitioner were required to be reviewed by the officer who occupied the office of Brigadier consequent upon the transfer of Brig. N. Sondhi. It is admitted that petitioner had also received his order of transfer dated Feb. 6, 1980 but he left the charge oft Feb. 16, 1980, after completing the formality of handing over charge and also writing the interim confidential reports which he was bound to complete before proceeding on transfer. It is alleged that Major R. S. Sehgal in respect of whom petitioner wrote the confidential report on Feb. 20, 1980, which contained a counselling remark adverse to the officer was a near relation of Brig. N. Sondhi. It is further alleged that even though Brig. Sondhi had already been transferred and had left charge, yet on Feb. 25, 1980, the confidential reports were forwarded by the Headquarters 43 Artillery Brigade to Brig. Sondhi for reviewing the same. While so reviewing the confidential reports, Brig. Sondhi addressed a query with respect to the last sentence in para 27 in the confidential report of Major Sehgal; "that the last sentence appears to have been written possibly at a different time. It is suggested that a confirmation may be asked for from the officer as to whether he was aware of the complete para prior to signing. The ICR may thereafter be returned for onward despatch". Suspicion underlying this query is that adverse entry reflected in the last. sentence of para 27 was interpolated after the confidential report was signed by Major Sehgal. The suspicion arose on the visual impression that : (a). there is change in ink of last line; (b) last line appears to have been written over the signature of the officer reported upon; (c) size of lettering of the last line is smaller than the rest of the para. It may be mentioned that ultimately this alleged interpolation in the interim confidential report after the same having been initialled by the officer reported upon is the gravamen of the charge under Section 45 of the Army Act on which the petitioner is called upon to face a trial by the General Court Martial convened under the impugned order dated 11/04/1981.

(3.) IN each petition legality and validity of the order convening the General Court Martial more particularly the composition of the Court Martial in respect of each petitioner is questioned. The challenge up to a point proceeds on grounds common to all. the three petitions and they may be dealt with first.