JITENDRA SINGH SAHI LT COL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner is an Army officer, holding presently the rank of Lt. Col. Under this petition under Article 226 of the Constitution of India, he challenges and seeks quashing of the impugned show cause notice, proposing his termination from service issued on 19 -7 -1989 (Annexure A 4), by Chief of Army Staff and conveyed by Director General, Discipline and Vigilance (for Adjutant General), in purported exercise of powers under Section 19 of the Army Act, 1950, read with Rule 14 of the Army Rules, 1954 (hereinafter referred to as 'the Act' and 'the Rules').

(2.) THE learned counsel appearing for the petitioner has assailed the impugned show cause notice, on more than one grounds, but in our opinion the main question regarding competence of the Chief of the Army Staff, to take recourse to the procedure of termination of services under Rule 14 of the Rules, when the Court Martial of the petitioner for the alleged misconduct amounting to offence, was barred by limitation needs to be considered and decided first. The other grounds urged against the impugned show cause notice, would require answer only if the petitioner fails on his principal submission alleging want of jurisdiction and competence of the COAS under Rule 14 of the Rules.

(3.) THE defence of the petitioner before us in this petition is that the discrepancy in the stores was during incumbency of Capt. Lalli and as admitted by the respondents in their return, in reply to paragraphs 18 and 19, the petitioner came in charge of the stores as officer after so many officers in between had taken charge of the stores. During the relevant period when the loss was detected, the petitioner was not in charge of the stores. In the supplementary Court of enquiry, he was merely summoned as a witness. He was taken unawares when some labourers, in that enquiry, deposed against him. At this stage he was asked to cross -examine them and he did put a few questions to some of them, but he was totally unprepared for the eventuality and because of time lag and want of necessary records, could not effectively cross examine them. The petitioner, therefore, submits that being deprived of opportunity of defence in a duly constituted Court Martial, he could not be condemned and proceeded against for the alleged misconduct. The petitioner's grievance is that in the summary procedure under Rule 14, he will have no effective opportunity to defend himself because he can merely submit his reply to the notice and state his defence in writing. He can get no opportunity to establish his innocence as he would have got had a Court martial been convened against him and trial was held.