S. Mohinder Singh Randhawa Giani vs Union Of India
1999 Latest Caselaw 1190 Del

ORDER

K. Ramamoorthy, J.

1. The petitioner, who was working as a religious Teacher (Granthi) in the Indian Army, was discharged from service by order dated 18.3.1980, and that is under challenge in the writ petition.

2. A few facts have to be noticed for the purpose of appreciation of the attitude of the respondents in deciding the matter against the petitioner.

3. The petitioner joined the Indian Army on the 31st of July, 1965. He was subsequently promoted as Risaldar. He was in 74, Armoured Regiment. The 74 Armoured Regiment was to move for an exercise, and for that purpose, the Commanding Officer of the Regiment sent the communication dated 29.8.1978 that Guru Granth Sahib, Mandir and CSD Canteen had to be loaded in a vehi- cle. The exercise was to be carried on in the month of March, 1979. The Commanding Officer, after all formalities were complied with for the march, directed that Gurudwara, Temple and CSD Canteen should be loaded in one vehicle and issued a direction to that effect. That direction was communicated to the petitioner through Risaldar, Major Ganpat Singh.

4. The petitioner pointed out to the said Major that carrying of Guru Granth Sahib along with the canteen articles would not be proper. The petitioner approached the Commanding Officer and requested him to arrange for an independent vehicle for carrying the Guru Granth Sahib. The Command- ing Officer reproached the petitioner for having approached him and direct- ed the petitioner to contact to Risaldar Major Ganpat Singh. The Commanding Officer in spite of this, stuck to his position. The petitioner sent a letter to the Commanding Officer seeking permission to get clarification from the Shiromani Gurudwara Prabandhak Committee, hereinafter called SGPC, which is supreme statutory religious representative body of the Sikhs.

5. On the 1st of April, 1979, the lorry detained to carry Mandir, Gurudwara and CSD Canteen, in the first instance, was to be loaded by the peti- tioner. The petitioner did every thing thinking that only Guru Granth Sahib would in the lorry. Later on, Mandir also was loaded in the lorry. Besides this, CSD Canteen was also loaded in the same lorry, which would include articles which cannot be carried along with sacred things.

6. The petitioner sought permission from the 9th respondent to get clarification from SGPC. There is no written order issued by the Commanding Officer permitting the petitioner to write a letter to the SGPC. On the 11th of April, 1979, the petitioner wrote to the President, SGPC in Punjab, and the translation of which is as under :-

"I am serving as a Granthi in the Army. I have certain doubts. Kindly respond in detail on them :

(1) What is the Maryada (ordained procedure practice and ceremony) for distribution of Langar.

(2) Is it necessary to pronounce in public the name of the person who makes an offering.

(3) Whether the goods of the Mandir and the Canteen can be taken in the same vehicle in which Gurudwara is being taken when the Regiment proceeds out on exercise.

It is hoped that you would send detailed reply at the earliest so that nothing against ordained Maryada may happen."

7. On the 23rd of April, 1979, the SGPC, sent its reply stating :

"On the subject of your letter dated 11.4.79 the opinion of Jathedar Akal Takhat Sahib, and the former Head Granthi of Shri Darbar Sahib, Amritsar, is being sent as mentioned below.

According to the Maryada, it is only after the distribution of the Langar to the Sangat in Pangat that eating should commence after a Jaikara.

It is not essential to pronounce the name of the person who makes an offering in the Sangat. There can also be anonymous offerings.

In the vehicle in which Guru Granth Sahib is to be carried no other goods except the goods connected with Guru Granth Sahib can be carried. The canteen goods should not be carried in the same vehicle."

8. It appears that this had provoked the 9th respondent and he had di- rected the constitution of a Court of Inquiry. On the 13th of April, 1979 a regimental Darbar was held. In that, the point relating to making a provision for a separate vehicle for the Gurudwara and Mandir was mooted out. The Commanding Officer indicated in that meeting that a Court of Inquiry had been directed to be held. According to the petitioner, under similar circumstances when a regimental Darbar was held, the petitioner explained the view of the Sikhs and Guru Granth Sahib principles, and expressed the view that carrying of CSD canteen along with Guru Granth Sahib and Mandir was contrary to the religious principles.

9. On the 15th of May, 1979, the Commanding Officer of the Regiment, the nineth respondent, wrote to the petitioner the following :-

"DISCIPLINE : SERVICE PERSONNEL

1. It is learnt from reliable sources that you have written to the SGPC, Akal Takht and others regarding the carriage of Granth Sahib out for exercise and related matters. This act of yours is in contravention to customs of service and DSR Para 363. I would like to advice you that severe disciplinary action can be taken against you for corresponding without side agencies and religious bodies directly. Such disciplinary action may in the long run effect your career in the Army besides causing embarrassment to you as a religious teacher and us.

2. I advice you to withdraw the letters written by you failing which disciplinary action will be taken against you as per rules.

3. Please acknowledge."

10. The petitioner did not withdraw his letter written to the SGPC. The Court of Inquiry would show the purpose for which it was convened. In the preamble portion of the proceedings of the Court of Inquiry, it is stated :

      Proceedings of a    -    Court of Inquiry
     Assembled at        -    74 Armoured Regiment C/o 56 APO
     on the              -    30 June 1979 and 
                              subsequent days
     by order of         -    Commander 34 Armd.
                              Brigade vide HQ 
                              34 Armoured Brigade
                              letter No. 429/71/A
                              dated 28 Jun., 79.
     for the purpose of  -    Investigating into 
                              circumstances in 
                              which JC-57936 F Nb.
                              Ris Mohinder Singh
                              Randhawa (RT),
                              74 Armoured Regimt.
                              has committed the 
                              following offences :-

 

 (a) That he did not take Shri Guru Granth Sahib to the exercise location on 31st March, 1979 when ordered to do so. 
 

 (b) That he on 13 April, 1979 at 1000 hours whilst objecting to the carriage of Shri Guru Granth Sahib in the same vehicle stated 
 

 "It was in insult for Guru Granth Sahib to be carried in the same vehicle as the Mandir," or words to that effect. 
 

 (c) That he on 11, April, 1979 wrote a complaint to SGPC without permission from the Officer Commanding, contrary to the provisions of Ra Para 363. 
 

 (d) That he failed to rejoin duty forthwith when recalled by telegram on 26 May, 1979 from annual leave and rejoined at his own convenience on 9th June 1979. 
 

 (e) That he while on annual leave from 8th May 1979 to 6th July, 1979 at village PANWAN, failed to inform about his change of address in contravention to the instructions contained in the leave certificate."   
 

11. When it was specifically opined that the petitioner was guilty of mis- conduct or misappropriate, what was the need for any Court of Inquiry has not been explained by the respondents in the counter. 
 

12. On the 18th of October, 1979, a show-cause notice was issued to the petitioner and the same reads as under :-     

 "SHOW CAUSE NOTICE
 

 1. Ref. Ar 13 and Army HQ letter No. A/13210/AG/PS 2 (c) of 23 Aug, 65. 
 

 2. I am constrained to bring to your notice that your discipline, conduct and performance has been unsatisfactory and unbe- coming of a JCO. Following lapses/offences committed by you have come to my notice :- 
 

 (a) That on 31st. Mar, 79, you as Religious Teacher of the Regi- ment failed to take Shri Guru Granth Sahib to the exercise loca- tion when ordered to do so. 
 

 (b) That on 13th. Apr. 79 at 1000 hours during a Gurudwara and Mandir Committee meeting you stated "It is an insult for Guru Granth Sahib to be carried in the same vehicle as the Mandir", or words to that effect. 
 

 (c) That you on 11th Apr. 79 wrote a complaint to SGPC, without permission from the officer, Commanding, contrary to the provisions of RA para 363. 
 

 (d) That you failed to rejoin duty forthwith when recalled by telegram on 26th May 79 from annual leave and rejoined at your own convenience on 9th Jun, 79. 
 

 (e) That whilst on annual leave from 8th May, 79 to 06 July, 79 at village PANWAN failed to inform the unit about your change of address in contravention to the instructions contained in the leave certificate. 
 

 3. Please show cause as to why your services should not be terminated forthwith for unsatisfactory performance and above stated culpable offences/lapses vide AR 13 and Army Headquarters letter ibid. 
 

 4. Six copies of your reply may please be forwarded to this Headquarters by 1000 hours on 22nd Oct 79 for onward submission to superior Headquarters."  
 

13. The petitioner sent his reply immediately. 
 

14. On the 22nd of October, 1979, the Commanding Officer instructed the petitioner to return the original copy of the show-cause notice and he could not take any action. On the 29th of October, 1979, the Commanding Officer wrote to the petitioner :    
 

 1. Reference our letter No. 1353/MSR/A dated 22nd Oct 79 handed over to you by hand before noon. 
 

 2. You were directed to treat our show-cause notice dated 18th Oct. 79 as cancelled. Please confirm by 31st Oct 79 as to why you have not complied with our instruction. 
 

 3. Six copies of reply to the show cause notice ibid are re- turned herewith. 
 

 4. Please acknowledge receipt."   
 

14. On the 31st of October, 1979, the petitioner sent his reply in the following terms :-    
 

 "With great respect, I may please be excused to submit my reply against your letter No.1353/MS-R/A dated 22.10.79 & para 2 of your letter No. 1353/MSR/A dated 29.10.79 (received on 31.10.79 that your requirement is against the procedure established by law. 
 

2. It is also pertinent to note that reasonable time for reply is not being afforded by your honour to me. Reasonable time of 15 days for reply for the defense personal is pronounced by the lordship of Supreme Court of India. It is, therefore, requested that reasonable time of 15 days may please be allowed in future."

15. On the 24th of November, 1979, the show-cause notice was again given and the same is as under :-

"SHOW CAUSE NOTICE

1. Between the period Mar. 79 and June 79, the following acts/omissions of gross misconduct on your part have come to my notice, which had also been brought out by the Court of Inquiry assembled on the orders of Commander 34 Armoured Brigade vide HQ 34 Armoured Brigade letter No.429/71/A dated 28th June 79:-

(a) That on 1st Apr 79, as Religious Teacher of the unit, you did not take 'Shri Guru Granth Sahib' to the exercise location, thus wilfully disobeying my specific orders that 'Shri Guru Granth Sahib' would be carried to exercise location.

(b) That on 13th April, 79, at a unit conference of officers and JCOs, you had stated "It is an insult for Guru Granth Sahib to be carried in the same vehicle as the Mandir" or words to that effect, which statement was unbecoming of your rank and status as a JCO and Religious Teacher of the Unit.

(c) That in Apr, 79 at a unit court of inquiry presided over by IC-21175 Maj Ashok Sodhi, you were asked a question by the court i.e. "Do you also object to Mandir also being loaded in the same vehicle?" In reply to the said question, you had stated, "Yes, it is like, EK MIYAN KE ANDAR DO TALWAR NAHIN SAMA SAKTI". Your aforesaid reply was most unbecoming of the character and position expected of you as a Religious Teacher of the unit.

(d) That on 11th Apr. 79, you addressed a communication direct to "The President, SGPC, Amritsar", an organisation not recognised as part of Armed Forces, without my permission and knowledge and also contrary to the existing instructions.

(e) That on 5th June, 79, while on leave of absence at your home town, having received the intimation of recall from leave, you failed without sufficient cause to rejoin the unit without delay.

(f) That, while on leave of absence from 8th May, 79 to 6th July, 79, you failed to intimate to the unit, the change in your home address at the time of your absence from leave station (as men- tioned by you in the leave application) contrary to the instructions contained in the leave certificate.

2. Your aforesaid culpable and deliberate acts of commissions/omissions lead me to conclude that you do not hesi- tate to undermine the authority of the service to attain your whims. Your act of seeking redress against unfounded grievances from a religious organisation, not recognised by Armed Forces, is highly reprehensible. In view of your said unsatisfactory performance, you have lost your credibility and prestige in the unit as a Religious Teacher. Keeping in view the sancity of the appointment of a Religious Teacher in the and your aforesaid misconduct, you are considered unworthy to hold the same.

3. In view of above, your further retention in the service is considered undesirable. You are, therefore, called upon to show cause why your services in terms of Army Rule 13 be not terminat- ed, by sending you on discharge from service.

4. Your reply (five copies) should reach me by 1000 hours 3 Dec 79 positively, failing which it would be assumed that you have noting to urge against your proposed discharge from service.

5. A copy of the court of inquiry held in this case comprising of 17 (Seventeen) typed pages and six exhibits, is attached for your perusal and return along with your reply."

16. The petitioner sent his reply is detail on the 1st of December, 1979, and the same is as under :-

"1. With great respect, I beg to state that in connection with your confidential letter No.1353/MSR/A dated 24th Nov 1979 of the charges, it is respectfully submitted only charges framed against me as mentioned in the above letter are not admitted and emphatically denied.

2. That I have spotless service of more, than fourteen years in the army on active service. My work has always found with entire satisfaction of my superior officers. It is the first time/chance in my unblemished service of more than 14 years and 6 months, when I am receiving false/vague and illegal allegations from my respected commanding officer. The impugned order are suffering from serious infirmities of law which are appended below.

3. First of all, illegal/false allegations has been framed by your honour vide your letter No.1353/MSA/A dated 18th Oct. 79 against me, same has been replied vide my defense statement dated 22 Oct 1979.

4. It is undisputed that after full application of your mind on my defense statement dated 22nd Oct 1979, you have cancelled your show cause notice after fully satisfied with my above defense statement vide your letter No.1353/MSR/A dated 29th Oct 79. It is pertinent to note that, the position under the law is that, the charges as mentioned in your first show cause notice letter No. 1353/MSR/A dated 18th Oct 1979 framed against me have been dismissed and alleged proceedings are closed forever on the same facts. Now your honour has again reopened, dismissed/closed case on the same set of facts which is against the para 22 and 11 of chapter III and IV respectively of the " OF INDIAN MILITARY LAW' (MIML), which is having a power of mandatory law and also inforeable in the court of law. It is also forwarded for your kind information that this alone ground is sufficient to quash the impugned order based on the same set of facts which has already been dismissed/closed forever by your honour vide your letter No.1353/MSR/A dated 29th Oct 79. Our court of law has long hands to get aside the said second cause notice No.1353/MSR/A dated 24th Nov 79 which is based on the same set of facts. It is held by their lordships of Supreme Court of India in that, "CLOSED CASE SHALL NOT BE REOPENED.

5. That issuance of the fresh impugned second show-cause notice to the applicant is in violation of the principles of natural justice because the applicant's case has already been dismissed/closed by your honour vide your letter No.1353/MSR/A dated 29th Oct 79 based on the same set of facts.

6. That the impugned second show cause notice based on the same set of facts is despotic illegal and contrary to the rules and regulations of the department and amounts illegal exercise of jurisdiction of your honour. This is also a mala fide action against me because my protest of this effect that the CSD Canteen shall not be included along with the Mandir and Gurudwara (Guru Granth Sahib) one and the same vehicles to exercise locating as CSD(I) Canteen have Sacrilages items which are against the Guru Math/religious customs, this protest incurred severe displeasure ness against me. Therefore, the impugned order has been issued to harass me and victimise me.

7. That the impugned show cause notice is bad in law as the para 3 of your notice made it clear that your honour has made up (prejudge) your mind that the applicant is guilty of the charges framed against me and secondly charges being determind to be true, I am liable to a punishment of termination by sending the applicant on discharge from service. In support of my contention, the pronouncement of Privy Council/Supreme Court and various High Courts of India are well settled by their lordships in that "First Show Cause Notice consisting of the charges as well as proposed punishment is invalid because first show cause notice is in violation of famous rule of nature justice that "Justice must not only be done but also be seen to have been done."

8. That for want of jurisdiction impugned show cause notice is null and void.

9. Impugned show cause notice is suffering from the defects of law of bias because you were a party in this case, therefore, show cause notice is invalid and inoperative.

10. Your impugned show cause notice is also in violation of procedure established by law.

11. Your impugned show cause notice is itself mala fide action and first step of implementation threatening of dire consequences with the view to stop not to work in accordance with the Guru Mat &/not to represent against the disrespect shown to Shri Guru Granth Sahib wilfully by your honour issuing the order to carry the CSD(I) Canteen along with the Guru Granth Sahib one and the same vehicle.

12. Para wise relies of your show cause notice No.1353/MSR/A dated 24th Nov 79 is given below:-

1(a) The Charges denied. In fact on 31st Mar.79 ordered to me by your honour that Shri Guru Granth Sahib, CSD (I) Canteen and Mandir shall be taken in one and the same vehicle. On inclusion of CSD (I) Canteen with the Shri Guru Granth Sahib, I prayed to your honour that since CSD (I) Canteen contains TOBACCO, CIGA- RETTES, BIRHI, LIQUOR AND CONTAINERS OF MEAT/FISH. Therefore, according to Guru Mat (Sikh Religious Customs/rights) it is great sacrilege to bring all this things in presence of Shri Guru Granth Sahib. Further I requested that according to GURU MAT nothing which not connected with the running of Gurudwara is allowed to travel in the vehicle in which Shri Guru Granth Sahib is being taken, but of no avail. In spite of my said request, your honour has ordered CSD(I) Canteen shall be taken along with the Shri Guru Granth Sahib's vehicle. My aforesaid prayer has incurred serious displeasure ness of your honour with me and threatened me with dire consequences. However, on 1 Apr 1979 I obeyed your order and Shri Guru Granth Sahib was decorated in the vehicle by me along with the Mandir also. Then according to you order CSD (I) Canteen along with aforesaid objectionable/sacrileges items have been loaded in the same vehicle in which Shri Guru Granth Sahib was already decorated. When I came to know by physical verification about the aforesaid charge of every Sikh Religion believer and against the GURU MAT. I did my duty and with due respect brought the Birth of Shri Guru Granth Sahib down from the vehicle and took it inside the Gurudwara. I am Religious Teacher and being a export under Section 48 of Indian Evidence Act, it is my duty to maintain the Guru Mat (Sikh Religious Customs) therefore I have performed by holy duty to bring the Birth of Shri Guru Granth Sahib down from the vehicle in which CSD (I) Canteen was also maintained along with aforesaid sacrilege articles. It is evident from the above that your honour is not known with the SIKH GURU MAT. Hence your contention in a written statement produced by you during the court of inquiry on 30 June 1979 and subsequent days that, "Being a Sikh myself - I am well aware of the taboos and customs of both the religious has no substance (force) because your honour are not expert in religious matter within the meaning of Section 48 of Evidence Act." Further your contention in written foresaid statement that, Ris Maj JC NO:-17313-P Ganpat Singh confirmed that the Canteen CSD (I) stores were in a small box without any liquor, cigarettes, tobacco and meat (refer para 65) is totally false because there is no reason to believe as to why aforesaid confirmation has not been brought to my notice at the same time when he physically verified the vehicle and before the movement why this thing has not been brought to your notice by the Ris Maj because it was his bona fide duty which goes to show that nothing has been checked by the Ris Maj Ganpat Singh in the manner as mentioned in your written statement, but it is plea of afterthought which has no legal value. Therefore, your honour is at fault in allowing the CSD(I) Canteen with the aforesaid sacrilege along with the Guru Granth Sahib and Mandir in one and the same vehicle and not myself. It is well settled law declared by the Supreme Court of India that "NO ONE SHALL BE ALLOWED TO TAKE ADVANTAGE FROM RIS OWN DEFAULT AND USE IT AS A GOOD GROUND OF DESYOX DISOBEDIENCE AGAINST ME INTERMINATING MY SERVICES" THE extract from Note 5 of INDIAN ARMY ACT Section 27 mentioned in your written statement under para 68 and Exhibit `B' is not laid down no where in the aforesaid section of Indian Army Act (Revised Publication 1979). Para 69 of your written statement and Exhibit `C' are totally false and emphatically denied. Charge under para 1 sub-clause (`C') of the impugned show cause notice as worded is not admitted and I am refuting this charge very strongly on the following grounds:-

(i) That my date of appointment is 05 Feb 1970 as a Religious Teacher. It is evident that I have a glaring service of 10 years as a Religious Teacher. Prior to the impugned show cause notice no charge as mentioned in para 69 in the manner of your written statement that "communal and disrespectful utterances are detri- mental to harmony and expired-de-corps in mixed unit and must be punished vide AA Section 64(b)". AA Section 64(b) runs:- by defiling any place of worship, or otherwise, intentionally insults the religion or wounds the religious feelings of any per- son; my service of 10 years as a Religious Teacher without any complaint in the manner as mentioned by your honour is proof enough that I am not the person of the kind as described by your honour in the written statement. It is most suppressible that within a few minutes on what material your honour has adjudged me a communal minded teacher when upto the 10 years of service even there is no evidence against me to worth the name which goes to show the accuracy of your false charges. Prior to the religious teacher I served as a OR in a mixed unit from 31st July 1965 to 5th Feb 70. After observing my good and sufficient knowledge in religious matters of Hindus and Sikhs and other religious and watching my full devotion with all the religion, my superior officers of the Army has promoted me from OR to religious Teacher from 5th Feb 79. It is pertinent to note that in Aug 1972 on occasion of "JANMA ASTMI" at Ahamad Nagar(Maharashtra) Murthi Sthapana ceremony was celebrated in the Unit's Mandir of 74 Armd Regt under the command of then Lt.Col.K.S.Khajuris.

(present bie Commander of 2 Armd Bde), I have delivered a speech about 2 hrs on the Hinduism and preaching of 'SHRI KRISHNA BHAG- WAN ON BHAGWAT GITA" in the presence of Lt. Col. K.S. Khajuria along with mixed unit. After delivering the said speech on Hindu philosophy, learned Lt. Col. K.S. Khajuria appreciated to me that I have a such Granth who has a good knowledge and full devotion with the Hinduism. This fact can be verified from the Honourable Bie Commander K.S. Khajuria. The OC Lt. Col. A.P. Bhargawa of 74 Armd Regt was so happy with the full devotion and knowledge of Hinduism that the speeches as delivered by me on the occasion of RAMANAVAMI, DASSURAH & JANMASHTAMI during the command of said officer. I was highly appreciated by Lt.Col.A.P.Bhargawa of 74 Armd Regt in regard to my knowledge and full devotion with the Hinduism. Presently under your command I am delivering the speeches on Hindu festival (i.e. RAMANAVAMI, DUSSURA AND JANMASH- TAMI).

(ii) That recently on 14 Apr 79 in exercise CHANDERT PAR" Shri Guru Granth Sahib and Mandir were taken in one and the same vehicle. Secondly during the Corps Exercise (Sangram) on 28.4.79 to 7.5.79 Shri Guru Granth Sahib and Mandir were taken in one and the same vehicle and I was also present at the aforesaid time, which goes to show that your charge mentioned under para 1(b) efd (c) of, are false because aI have stated during the court of Inquiry in para 7 that, "I have not made any statement to this effect. However, on 13th Apr 79 in a Officers/JCOs conference held by the Commanding Officer, Lt.Col.SPS Gill, I did state that, it is an insult to both the Gurudwara and Mandir if they are carried in the same vehicle which is enough proof of my devotion for both the religions. It also goes to show that I have not made deposition in the alleged manner supported by the wit- nesses in accordance with their connected false story/pre-planned affair. I have stated only for CSD(I) Canteen that, Canteen shall not be included along with the Mandir and Gurudwara as for exam- ple "EK MIYAN KE ANDAR DO TALWAR NAHIN SAMA SAKTI" but due to my representation with the religious institution (i.e SGPC), OC along with his supporters has cooked up a different case of discrimination as to avoid the strong action has been taken by them against OC Lt. Col. S.P.S.Gill. The Secretary of SGPC has written a letter dated 05 Jun, 79 addressed to Shri Jagjivan Ramji defense Minister and copy to CC 74. Armd Regt. SGPC are stressing to take stern and exemplary action against Lt. Col. SPS Gill as he has shown disrespect to Shri Guru Granth Sahib by allowing CSD(I) Canteen along with Shri Guru Granth Sahib and Mandir which is against the Guru Mat and adding more weight in wounding the religious feelings of Sikhs all over the world. Thus any person who is clearly guilty of serious offence punishable upto 7 years within the meaning of Section 64(b) of Army Act, 1950. The aforesaid Army Act has been violated by the respected Lt.Col.SPS Gill, for which necessary action has contemplated by law is requested.

1.(d) That the charge under 1(d) as worded of your show cause notice is not admitted. Because it is evident from para 363 of RA that instant charge as levelled against me is suffering from non- application of mind. It is undisputed that SGPC is not immediate superior, neither next superior authority/competent authority/Coy Comdr, nor COAS, but is the head of the Sikh Religious Committee which is recognised by Government of India, whose duty is main- tained and watch the correct implementation of GURMAT and also issue correct interpretation of GURMAT. There is no ban in the law to obtain correct advice/opinion on the Religious matter/GURMAT direct from SGPC. It is also added that my right to religion guaranteed by the Constitution of India, to write letter direct to SGPC is not suspended while is service in connection with Religious matter. The alleged matters are neither purely private nor in personal nature. Therefore, para 363 of RA shall not be applicable in the instant case. Apart from above. I have also intimated to your honour on 22nd Mar. 79 at your residence that inclusion of CSD (I) Canteen having sacrilage articles with Shri Guru Granth Sahib in one and the same vehicle shall be brought to the notice of SGPC in order to maintain to GURUMAT. SGPC is very much highest religious organisation of Sikh in the world recognised by Government of India, which has to give rul- ings on GURUMAT clarification where necessary and this being the only institution in the work to which we can not disobey nor neglect on certain doubts, I have been obtaining clarification on religious matter prior to this incident also. As far as the permission from the superior authority is concerned, I directly approached at your Bungalow on 22 Mar 79 to which you have agreed to/acceded to. It is held by the lordship of Supreme Court of India in that, (HEAD OF RELIGIOUS INSTITUTION). He is the head of a 'spiritual fraternity' and by virtue of his office has to perform the duties of a religious teacher. It is the duty to practise and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under Article 25 of Constitution of India. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery or in a temple or par lour meeting. A religious may not only lay down a code of ethical rules for its followers to ACCEPT. IT MIGHT PRESCRIBE RITUAL AND OBSERVANCES CEREMONIES AND MODES OF WORDSHIP WHICH ARE REGARDED AS INTEGRAL PARTS OF RELIGION, and these forms and observances might EXTEND EVEN TO MATTERS OF FOOD AND DRESS. THE GUARANTEE UNDER THE CONSTITUTION OF INDIA NOT ONLY PROTECTS THE FREEDOM OF RELIGIOUS OPINION BUT IT PROTECTS ALSO DONE IN PURSUANCE OF A RELIGION AND THIS IS MADE CLEAR BY THE USE OF THE EXPRESSION "PRACTICE OF RELIGION IN ART 25 OF CONSTITUTION OF INDIA. FREEDOM OF RELIGION IN THE CONSTITUTION OF INDIA IS NOT CONFINED TO RELIGIOUS BELIEFS ONLY; IT EXTENDS TO RELIGIOUS PRACTICES. UNDER ART 26(B) OF CONSTITUTION OF INDIA, THEREFORE, A RELIGIOUS DENOMINATION OR ORGANISATION ENJOYS COMPLETE AUTONOMY IN THE MATTER OF DECIDING AS TO WHAT RITES AND CEREMONIES ARE ESSENTIAL ACCORDING TO THE TENETS OR THE RELIGION THEY HOLD AND NO OUTSIDE AUTHORITY HAS ONLY JURISDICTION TO INTERFERE WITH THEIR DECISION IN SUCH MATTERS. A LAW WHICH TAKES AWAY THE RIGHT OF ADMISSION FROM THE HANDS OF A RELIGIOUS DENOMINATION ALTOGETH- ER AND VESTS IT IN ANY OTHER AUTHORITY WOULD AMOUNT TO A VIOLA- TION OF THE RIGHT GUARANTEED UNDER CLAUSE (D) OF ART 26". It is more surprise able that in spite of heavy protection of our Constitution in religious matter your honour are threatened with dire consequences vide your letter No.1362/A dated 15th May 79.

1(e). Charge is denied. It is admitted by you that a complaint dated 11th Apr 1979 was advanced by me against your honour to SGPC regarding clarification in Sikh Religious Customs/GURUMAT. Then Secretary of SGPC wrote a complaint vide his number 20551/4- 2 dated 21st May 79 against your honour under the subject:-

DISRESPECT SHOWN TO SHRI GURU GRANTH SAHIB WILFULLY BY 74 ARMD REGT-COMMANDER-ADDRESSED TO defense MINISTRY AND COPY TO YOUR HONOUR. In fact this incurred serious displeasure ness of your honour against me and your honour sent telegram on 26th May 79 motivated with ill will due to my complaint. The telegram delivered on 30th May 79 and received by younger brother at 1100 hrs. but he did not inform me as, I was not available there because my grand mother in law was expired at Ashok Nagar, Jammu (J&K). Therefore, I proceeded on 29.6.79 to Ashok Nagar, Jammu (J&K) for condolence to the aggrieved family for short period. Then I came back from Ashok Nagar on 05 Jun 79 at 1800 hrs. My younger broth- er give me telegram I was on sanctioned leave from 08 May 79 to 06 July 79. I made settlement of children on 06 Jun 79. On 07 Jun 79 I reached at Amritsar Railway Station at 1900 hrs from village Panwa. I tried by best to come by Frontier Mail but due to heavy rush I could not get birth 1st & 2nd class compartment. Then I spent my night at Railway Station Amritsar Jn. Then I started my journey on 08 June 79 at 0900 hrs by Dadar Express Mail and reached at Babina 0715 hrs on 09 Jun 79 and accordingly reported my arrival to the senior JCO. Thus there is no failure to rejoin my duty forthwith. My attention was not also to violate the rule. It is undisputed that my leave was sanctioned from 08 May 79 to 06 July 79. I received your telegram on 05 Jun 79, accordingly took quick hasty action in arrival at my unit and reported for duty on 09 June 79 which goes to prove that there was no negligence/wilful act/own convenience act in reporting to my duty. It is also pertinent to note that my leave was sanctioned upto 06 July, 79. It is not my case that I reported for duty after expiry of sanctioned leave, but 27 days of sanctioned leave is still outstanding due to your sudden call, which the strong proof of my promptness in attending my duty at unit.

1(f). That the charge under para 1 (f) of the show cause notice as worded is not admitted I already stated against charge No.1(e) that all sudden my grand mother-in-law was expired at Ashok Nagar, Jammu (J&K). Therefore, I proceeded on 29 May 79 to Ashok Nagar (J&K) for very short time and not permanently/long time. Then I feel ill there and after recovery of health I left the Ashok Nagar (J&K) at once on 05 June 79. Hence question of intimation of changes in the address for short time does not arise.

13. That in view of the exposition of aforesaid of law all the statements of the witnesses along with the finding of the Court of Inquiry and impugned notice are in violation of procedure established by law. In support of my contentions against the charges parlay (a), (b), (c), (d), (e), (f) and 2 to 5 framed against me I have mentioned the ruling of the Supreme Court which is binding on the authority of all over the India. Therefore, charges are not proved. Hence I am not guilty of any charge. Therefore, question of punishment of discharge from service does not arise.

14. That the enquiry conducted under the supervision of Lt. Col. SPS Gill can not be expected to be fair and impartial as he is personally prejudiced against me and interested to dismiss from service and how. Enquiry Officer used to leave the place by every 2 minutes for consultation with the Lt.Col.SPS Gill even after a question. During the Court of Inquiry Lt. Col. SPS Gill has produced a written statement and not deposed his statement ver- bally in the court of inquiry. Therefore, question of cross- examination of Lt. Col. SPS Gill is proof enough to show that such type settled statement can not be given verbally. A part from above copy of the court of inquiry held in this case furnished to me is not signed by any officers from page 1 to page 16, which is against the law. In this way there is sufficient gap to change in the manuscripts copies. Even I have signed on my statement as given during instant enquiry on the bottom every pages (about 6 or 7 pages).

15. The enquiry officer refused to go through the documentary evidence (i.e. Canteen CSD (I) Account ledger and stock bal ledger) which was in my favour relating to the charges. It is evident from the loading table charge that CSD (I) Canteen had been included along with the Mandir and Shri Guru Granth Sahib. These facts have also been admitted by the CO Lt. Col. SPS Gill and other witnesses. CSD(I) Canteen account ledger and stock balance ledger is a strong proof beyond reasonable doubt that CSD (I) Canteen was Armed with sacrilege articles that is, Tabacco Liquors, Cigarettes and containers of meat and fish. That there were no charges in your impugned show cause notice what can be styled as misconduct under the law.

16. In view of the aforesaid exposition of law along with the pronouncement of Supreme Court of India, it is therefore, re- quested that charges as framed against me in the impugned show cause notice may please be dropped. Under the procedure established by law your requirement under para 5 to return the copy of Court of Inquiry is not permissible/tenable."

17. On the 18th of March, 1980, the Regiment informed the petitioner about his discharge. The communication is as under :-

1. Your discharged has been sanctioned by the GOC-in-C-HQ Central Comd. received under 34 Armed Bde letter No.429/71/S/A dated 12 Mar 80.

2. Your discharge will be carried our w.e.f 05 Apr. 80. You are requested to arrange you adm, accordingly."

18. On the 14th of April, 1980, the petitioner sent his statutory com- plaint. On the 29th of May, 1980, the petitioner sent representation in furtherance of the statutory complaint. On the 21st of January, 1981.... the General Staff Branch informed the petitioner that his statutory com- plaint had been rejected by the Chief of the Army Staff. The communication reads as under:-

1. Reference your letter dated 16 Jan 81.

2. Your case has been examined by the Chief of the Army Staff, who after due consideration has rejected the statutory complaint dated 14 April 80 and an additional appeal dated 29 May 80."

19. The petitioner has submitted that he is not guilty of any offence. He had not disobeyed any orders of the Commanding Officer. The respondents had not followed the Rule 13 of the Indian Army Rules, 1954. The competent authority has not passed the order of discharge under Rule 13 of the Indian Army Rules, 1954. The petitioner has stated that his only point was that Guru Granth Sahib should not be carried along with the CSD canteen and that was in keeping with the religious principles and respect to Guru Granth Sahib. The petitioner has stated that Court of Inquiry was not held in accordance with law. The Commanding Officer did not make himself available for the cross-examination. He only gave a statement before the Court of Inquiry and the findings rendered by the Court of Inquiry are completely vitiated. According to the petitioner, the decision of the respondents discharging the petitioner is irrational and unreasonable.

20. In paragraph 9 of the counter-affidavit, it is stated:- "The petitioners continued insistence that a separate vehicle be allowed for the Gurudwara, borders on the insubordination and is not in keeping with the best traditions of the service which require a soldier to "Do or die, but never to question why? Also it is a very clear cut case of petitioner breaking the very harmony of all people of various caste and creed living together, for which the services are a living example in the country. This in itself speaks of a very narrow outlook on part of the petitioner on which to have base his entire thinking of the case."

21. This is the whole crux of the matter. The ninth respondent, the Commanding Officer, had taken the matter very seriously and had assumed that the petitioner had failed to obey his command and that is the genesis of the present action. The respondents ought to have approached the matter objectively without being influenced by the current of the power they are exercising. The whole trend of the counter-affidavit is that the petitioner had been acting without considering the directions issued by the authori- ties. The petitioner made it very clear that he was only concerned with CIS canteen being taken along with the Guru Granth Sahib. As a religious person, he had had his own feelings and he never had any intention of disobey- ing the orders issued by the respondent. On the facts and circumstances, the conclusion is irresistible that the respondents had acted unfairly and unreasonably. No person, properly instructed in law, would take the view that is taken by the respondents in this case. Lord Scarman in "Regina Vs. Inland Revenue Commissioner", 1985 AC 835 : (1985) 2 All ER, stated that unfairness in the exercise of power can amount to abuse of power.

22. There is absolutely no material on record to substantiate the charges against the petitioner in the show-cause notice. The view taken by the respondents is absolutely perverse and, accordingly, it is liable to be set aside. The order dated 18.3.1980 is set aside.

23. The writ petition is allowed.

24. The petitioner shall be entitled to all consequential reliefs.

25. There shall be no order as to costs.