Mr. Gurnam Singh, Ic-28082 K ... vs Union Of India (Uoi), Through ...
2003 Latest Caselaw 484 Del

JUDGMENT

Vijender Jain, J.

1. The petitioner was commissioned into the Parachute Regiment of the Indian Army on 2.3.1968. He was tried by General Court Martial and awarded the sentence of dismissal on 16.6.1987. The petitioner was serving at 127 Infantry Betallion (TA) ECO in 1985 till 7.7.86 where one Lt. Colonel O.P. Sindhu was posted as Commanding Officer of Unit under whom the petitioner was serving. It is the case of the petitioner that said Lt. Colonel O.P. Sindhu was misappropriating and committing other irregularities in relation to Government money. The petitioner in his capacity as officiating commanding officer observed that Lt. Colonel O.P. Sindhu had verified receipt of 20,000 Kgs. of G.I. wire valued at Rs. 3,06,000/- and had forwarded the bills for making payment to the supplier whereas no stores had been received on ground in the Unit. The petitioner queried from the Special Project Officer who was responsible for making the payment and also from Lt. Colonel O.P. Sindhu in this regard which resulted in unpleasant exchange of words. Similarly, the petitioner made further queries about three duplicate bills of G.I. wire. On 1.7.86, petitioner submitted in writing his request for seeking an interview with Major General K. L. K. Singh, who was the then Additional Director General, TA. The petitioner was granted audience on 3.7.86 with the said Major General K.L. K. Singh and the petitioner took file Nos. 1209/Accounts and 1209/A from the office to substantiate the allegations of misdeeds indulged in by Lt. Colonel O.P. Sindhu and the SPO. The said audience took place in the presence of Lt. Colonel O.P. Sindhu. Major General K. L. K. Singh (who later on became Lt. General) advised the petitioner to put up a written complaint through proper channel and the petitioner left the room after the audience, leaving said two files containing damaging and conclusively incriminating documents showing indulgence in and commission of fraud on the part of Lt. Colonel O.P. Sindhu. In consequence of the said audience, petitioner submitted a written complaint on 19.7.86 and Staff Court of Inquiry was convened by HQ Sub Area on 24.7.86 against Lt. Colonel O.P. Sindhu.

2. It is the case of the petitioner that the two files containing incriminating material against Lt. Colonel O.P. Sindhu, which were shown to Lt. General K.L. K. Singh and left at his office, were taken away by Lt. Colonel O.P. Sindhu after the audience. However, the blame of missing of files Nos. 1209/Accounts and 1209/A was put on the petitioner and that is one of the charges against the petitioner. It was contended by petitioner that utilizing his post as commanding officer, Lt. Colonel O. P. Sindhu obtained a note from Havildar Clerk P.C. Bahuguna that the said two files have been taken away by the petitioner. The petitioner was tried for two charges for failing to return the files and for using criminal force against Major A.S. Randhawa. Following are the two charges :

CHARGE SHEET

The accused IC-28082K Major Gurnam Singh, 48 GL Sec Type '8', attached JAT Regimental Centre, Bareilly an officer holding permanent commission in the regular Army, is charged with :-

First Charge     AN OMISSION PRE JUDICIAL TO GOOD
AA Sec 63        ORDER AND MILITARY DISCIPLINE. 

 

                     In that he, 
 

        at Dehradun, on 03 July 86, while serving with 27 inf B. (TA) ECO, having collected two official files i.e. 1209/Accounts (closed) and  No.  1209/A/Current from  No.  4050505 Hav/Clk  P.C. Bahuguna of the said Bn (TA) improperly failed to return the same to the custodian. 
 
Second charge        USING CRIMINAL FORCE TO     
AA Sec 47              A PERSON   SUBJECT TO THE                ARMY ACT BEING HIS               SUBORDINATE IN  POSITION                         
 

                                                    
            in that he, 
 

      at Dehradun, on 16 Aug 1986, while serving with 127 inf Bn (TA) CCO, used criminal force to late (TA-4095) Maj A S Randhawa of the said B. (TA), to wit, threw a chair on the said officer and gave blows on his face. 
 
                      Place : Bareilly                           Sd/-MK Rao
            Colonel
     Date:30.4.87          DC Details (Officers)
                          JAT Regimental Centre 


 

 3. The petitioner was tried by General Court Martial  in relation of  aforesaid charges.    The court found that the petitioner was guilty of both the charges. 
 

4. The impugned order of termination of the services has been assailed by the petitioner on the ground that the second charge preferred against the petitioner was under Section 47 of the Army Act which punishes the ill treatment of a subordinate in rank or in position, or the use of criminal force to such person being subordinate in rank or position. It was contended by the petitioner that person against whom the petitioner was alleged to have used criminal force was of the rank of Major, meaning thereby that he was not subordinate in rank to the petitioner, the said officer was placed superior in position to the petitioner w. e. f. 7.7.86. The petitioner has filed a copy of the Battalion Routine Order in this regard as annexure 'G' which, inter alia , shows that Major R.S. Randhawa was detailed to perform the duties of Accounts Officer which the petitioner till then was performing in his capacity as Second-in-Command and ,therefore, it was urged before us that the charge that the petitioner had violated Section 47 of the Army Act was misconceived and illegal. Petitioner further contended that the court martial proceedings ignored the vital medical evidence which was brought before the Court Martial. The Medical Officer Lt. Colonel P.S. Mehra who immediately after the scuffle between the petitioner and Major Randhawa examined both the officers on 16.8.1986 was produced as an expert witness by the prosecutor. Lt. Colonel P.S. Mehta in his deposition has stated that he had examined Major R. S. Randhawa and made the following observations:

   "(a)  He had two small abrasions on the outer                                                 side of the left wrist. 
 

                      (b) A small contusion on the right knee.
 

                     (c) He was smelling of alcohal."  
 

5. He subsequently mentioned that he did not notice any injury on his face. He further stated that in his opinion the cause of injuries sustained by the Late officer (as Major Randhawa died after the testimony) could be the scuffle that took place between him and the petitioner. The contusion on the right knee as well as the abrasions on the wrist, which were superficial, could have been caused due to a fall also. The said witness was cross-examined by the petitioner. In cross-examination he stated that he examined the petitioner and observed to the following effect:

"(a) Contusion over the left cheek bone, and

(b) Tenderness over right knee.

The contusion was very prominent and it could be seen as little red and blue under the left eye."

6. In the cross-examination he further stated that when Major Randhawa came to him for medical examination, he was smelling of liquor.

7. On the basis of this testimony, it was contended by the petitioner before us that it was Major Randhawa who hit the petitioner and the charge was wrongly framed and in spite of the evidence of the specialist, the petitioner was found guilty. The petitioner also took us to the cross-examination of Major Randhawa, recorded in January, 1987 same was used by the petitioner in his defense which was brought on proceedings as Exhibit 'GG', in order to fortify his arguments, that Major Randhawa had taken drinks and hurt himself and no injury was caused by the petitioner and as a matter of fact it was petitioner who sustained injuries from Major Randhawa. The cross-examination of specialist, who was a doctor and who had examined both the petitioner as well as Major Randhawa, was not considered and even the effect of exhibit 'GG' was also not considered, therefore, the findings of court martial were contrary to the evidence on record. Petitioner also relied upon the testimony of Havildar Clerk P.C. Bahuguna to point out discrepancies that the letter about two files was obtained by the Commanding Officer Lt. Colonel O.P. Sindhu.

8. The certified copies of the records were also shown to us in the Court by the petitioner which were supplied to the petitioner by the respondent. Respondent took the plea that the records have been destroyed in this case. We were surprised as to why the records have been destroyed in the case when the matter was pending adjudication in the Court.

9. Coming to the first charge we have seen the copy of the letter dated 22.7.86, written by Major A.S. Randhawa, stating therein that he had noticed the petitioner coming out of the meeting with Lt. General K. N.K. Singh. He stated that while the petitioner went inside, he was having certain documents/files but when he came out he did not see the petitioner carrying any file in his hand. The said letter was exhibited as Ex.'DE'. The same has not been denied to be correct by the respondent. It was further contended that the charge of the two missing files could not have been substantiated in view of the noting of the respondent which is to the following effect:

" DJAG HQ Central Comd has appreciated the evidence for prosecution in paras 4 to 15 of their letter at PUC. It has formally been advised by the DJAG HQ Central Comd vide para 17 of the Rat that prima-facie case exists against the accused offr (Maj Gurnam Singh of 48 GL sec at the Jat Reg Centre) with regards to using criminal force against PW-6 and for his omission to return the account files taken by him. It has, however been mentioned that the charge on account of omission to return the file will be weak as the only available evidence to this effect is available from the statement of Lt. Col. O.P. Sindhu who appears to be not of impeachable character. If so, he should be held responsible for the loss of file."

10. On the basis of this noting, it was contended before us that the first charge pertaining to files ought not to have been framed against petitioner, more so as it was Lt. Colonel O.P. Sindhu who was the main beneficiary of missing of the files as enquiry was initiated against Lt. Colonel O.P. Sindhu on the complaint of the petitioner. On these premises it was contended that there was no evidence to link the petitioner with the said charge.

11. It was contended by the petitioner that as per Section 109 of the Army Act, power to convene a General Court Martial is given to the Central Government or the Chief of Army Staff or by any officer empowered in this behalf by warrant of the Chief of Army Staff. In terms of the said provisions of Section 109, the Chief of the Army Staff has issued warrant known as "A--1 Warrant" to the officer commanding Army, Corps, Division/Area, and Independent Brigade to convene the General Court Martial in respect of officers and other persons posted under their jurisdiction. The power given under this provision cannot be delegated further. The petitioner vehemently contended that Rule 37 of the Army Rules provides that an officer before convening a Court Martial shall first satisfy himself that the charges amounted to an offence within the meaning of the Act. Sub-Rule 3 of Rule 37 further provides that the officer convening the Court Martial shall appoint or detail the officers to constitute the Court. Therefore, Rule 37 makes it incumbent upon the officer convening the General or District Court Martial to satisfy himself personally that the charges to be tried by the Court constitute offences within the meaning of the Act and that the evidence justifies a trial on such charges. It was contended that in this case there was complete non-compliance of the condition precedent to the exercise of the power of convening a Court Martial. It was contended that non-application of mind is evident from the fact that the charge sheet and the convening order had been signed by one Lt. Colonel R.N. Singh for officiating GOC, whereas, the law requires the officer convening the court to personally satisfy himself about the evidence and the nature of the Court Martial and to detail the members of the Court.

12. On the basis of the aforesaid submissions, it was contended before us that respondent has not placed any record whatsoever to show that the convening authority Lt. Colonel R.N. Singh i.e. officiating GOC applied his mind and approved the charges and detailed the members constituting the Court.

13. The petitioner has also contended that the then Judge-Advocate who was detailed in the General Court Martial was an officer lower in the rank than the petitioner and he would be disqualified for acting as Judge-Advocate. In support of his argument he has relied upon the judgment of Supreme Court in the case of Union of India Vs. Charanjit S. Gill. .

14. It was also contended that the provision of Rule 22 read with Rule 25 of the Army rules were not complied with before initiating action against the petitioner. No preliminary investigation before starting proceedings were held as Lt. Colonel O.P. Sindhu admittedly did not hear the petitioner which is clear from the court martial proceedings.

15. It was contended that the charge sheet as well as convening order which was issued by Lt. Colonel R.N. Singh and the order convening a General Court Martial is passed by Brig. Raj Kumar Singh, which will be apparent from page 50 of the paper book as the order for assembly of the Court Martial has been issued at the behest of Lt. Colonel R.N. Singh, officiating General officer Commanding, Uttar Pradesh Area.

16. Lastly, it was contended that the petitioner be compensated for consequent sufferings, service loss, loss of promotion prospects and exemplary damages be awarded to the petitioner. The petitioner has calculated that loss to the extent of Rs. 28.8 lacs. In support of his contention, he has relied upon the decision of Supreme Court in the case of K.D. Gupta Vs. Union of India AIR 1989 SC 1393 and Bhuwneshwar Singh Vs. Union of India .

17. On the other hand, counsel for the respondent has contended that the Major General G.L. Bakshi who was GOC applied his mind and considered it a fit case to be tried by GCM. The letter from Major General Bakshi is to the following effect:

"HQ UP Area

Bareilly-243001

09 Mar 87

Headquarters

Central Command (DJAG)

Lucknow-2

PRE TRIAL DOCUMENTS IN RESPECT OF IC-28082K MAJOR GURNAM SINGH OF 48 GL SEC TYPE 'B'ATT THE JAT REGT CENTRE BAREILLY.

1. I forward herewith application for GCM for the trial of IC-28082K Maj Gurnam Singh of 48 GL Sec Type 'B' at the Jat Regt Centre Bareilly.

2.I consider this as a fit case for trial by GCM as prima facie case exists against the above named officer.

3. I forward herewith the following documents:

 (a) ITAFC-937                       -       3 copies

 (b) Tentative Charge Sheet   -        3 copies 

         (c) S of E(incl manuscript     -          3 copies
           copy  

  (d) Apnx 'A' to AO 70/84     -          3 copies

   (e) C of I(three different      -          1 copy each
         aspects)
 
               (f) List of prosecution          -            3 copies.
  Witnesses
 

 4.IAFF-3013 and IAFD-905 will be forwarded to you on receipt of the same from the officer's previous unit.  


 

    Sd/- 

                  ( GL Bakshi ) 

                     Maj General  

                     GOC"  

 

 18. On the basis of  this letter it was contended  that Major General Bakshi GOC has applied  his mind for convening the  Court Martial. It was contended that if Major General Bakshi has applied his mind it was sufficient  compliance  of Rule 37 of the Army Rules. 
 

 19. We have given our careful consideration to the respective arguments of the parties. 
 

 20. The   petitioner  earlier filed  a writ petition  in Punjab and Haryana High Court  in 1990 which was dismissed on account of lack of jurisdiction.  The petitioner filed the present writ petition in the year 1995.  Counter affidavit was filed by the respondent.  In the said counter affidavit it was stated that  certain annexures  have been  filed by the respondent. However,  when the matter  was argued, it was pointed out that those annexures  which were  stated to have been  filed by the respondent along with the counter affidavit were actually not  filed by the respondents and same were not on judicial record.   At that stage  we directed the respondent to produce  the original record.  It was stated  before us   that the respondent has destroyed  the record.  We are amazed by this statement of the respondent as the matter has been pending since 1990 in the High Court of Punjab & Haryana and thereafter in this Court.   In the absence of  original record annexures,    what has been pleaded and proved by the petitioner has to be taken to be correct. 
 

 21. The Supreme Court in Bharat Singh and Others Vs. State of Haryana And Others   held as under: 

"As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitioners or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit . While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that as been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."

22. Therefore, the averment made by the respondent in the counter affidavit that the GOC, U.P. Area, was convening officer of the General Court Martial and that he had complied with Rule 37 of the Army Rules in letter and spirit cannot be taken to be correct. The case of the respondent in the counter affidavit is that he was of the opinion that the case was fit for GCM and the copy of the same was annexed as annexure R-1 with the counter affidavit. Annexure R-1 has not been filed by the respondent along with the counter affidavit nor the original of the same has been produced by the respondent at the time of hearing of the arguments. Now, let us examine the case of the respondent with reference to the letter dated 9.3.1987 of Major General Bakshi filed by the petitioner. Said letter is only a forwarding letter of pre trial documents. In para one he has forwarded the application to HQS Central Command for convening GCM against the petitioner. In para 2 of the said letter he has given his opinion that it was a fit case to be tried by GCM and in para 3 he has forwarded certain documents. Can 'this' be said as compliance of Rule 37 of the Army Rule? Rule 37 of the Army Rule is to the following effect:

"Army Rule-37. Convening of General and District Court Martial- (1) An officer before convening a general or district court- martial shall first satisfy himself that the charges to be tried by the court are for offences within the meaning of the Act, and that the evidence justifies a trial on those charges, and if not so satisfied, shall order the release of the accused, or refer the case to superior authority.

(2)He shall also satisfy himself that the case is a proper one to be tried by the kind of court-martial which he proposes to convene.

(3)The officer convening a court-martial shall appoint or detail the officers to form the court, may also appoint, or detail such waiting officers as he thinks expedient. He may also, where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the court.

(4)The officer convening a court-martial shall furnish to the senior member of the court with the original charge-sheet on which the accused is to be tried and, where no judge-advocate has been appointed, also with a copy of the summary (***) of evidence and the order for the assembly of the court-martial. He shall also send, to all the other members, copies of the charge-sheet and to the judge-advocate when one has been appointed, a copy of the charge-sheet and a copy of the summary (***) of evidence."

23. From the aforesaid Rule, it emerges that the convening authority has also to satisfy himself that the case is a proper one to be tried by the kind of court martial which he proposes to convene. The reliance placed by the counsel for the respondent on the letter of Major General G.L. Bakshi was not an order for convening of a Court Martial. It was simply forwarding documents to the Headquarters, Central Command (DJAG). The argument of respondent that Major General Bakshi was the convening authority is factually incorrect. The respondent could not explain as to why the convening order has been signed by one Lt. Colonel R.N. Singh for officiating GOC, whereas, the convening authority was Brig. Raj Kumar Singh as he had passed the convening order. There was nothing placed before us to show that Brig. Raj Kumar Singh who has passed the convening order, and Lt. Colonel R.N. Singh, who issued the convening order have applied their mind. We may also like to note that the reliance placed by the respondent on the letter of Major General G.L. Bakshi is also misplaced as in the said letter there was no order with regard to detailing the members of the General Court Martial and it could not have been in the said letter as we have discussed earlier that the letter was a letter which was addressed to Headquarters Central Command and not a letter convening court martial.

24. The Supreme Court in Union of India Vs. Harish Chander Goswami held as under:

"Admittedly there is no record whatever in the file to show that the personnel of the Court-martial were appointed by or nominated by the Lt. General. The order for the Assembly of a General Court-Martial did not contain either the signature or the initial of the Lt. General. It was signed only by the Colonel and none else. In the circumstances the said order cannot be considered to be an order evidencing the appointment of personnel of the Court-martial by the Lt. General. There is no dispute before that under Rule 37, the Commanding officer has to apply his mind to satisfy himself that the charge to be tried by the Court are for offences within the meaning of the Act and that evidence justifies the trial of those charges. It is also admitted that the Commanding Officer has also to satisfy himself that the case is a proper one to be tried by the kind of Court-martial which he proposes to convene. However, learned counsel for the appellants contends that sub-Rule (3) of Rule 37 is only procedural in nature and there is no need for the application of mind by the Commanding Officer in the matter of appointment of the personnel of Court-martial. That contention loses its relevant in the present case in view of the categorical stand taken by the appellant, that there was an order by the Commanding Officer appointing or detailing the officers to form the Court-martial. According to the learned counsel as stated earlier, the form for Assembly of Court Martial is the only relevant form and when it is signed by an officer on behalf of the Lt. General, that is sufficient proof of the appointment of the personnel of the Court-martial by the Lt. General. We are unable to accept this contention in view of the fact that the said form does not contain either the signature of the initial of the Lt. General. Even assuming that the Lt. General passed an oral order, there is no record of any kind whatever to prove it. The form for Assembly of Court-martial was not contemporaneous to such oral order, if any. In the absence of any record whatever to show that the appointment of the personnel of the Court-martial was by the Lt. General, we are not persuaded to accept the contention of the appellants that the requirements of Rule 37 were fully satisfied. It is unnecessary for us to consider whether sub-rule (3) of Rule 37 requires an order in writing or not in view of the specific stand taken by the learned counsel for the appellants in this case that there was an order in writing and the said order was nothing else but the form for Assembly of the Court-martial."

25. Therefore, we hold that there was non-compliance of Rule 37 of the Army Rules as the convening order was passed by Brig. Raj Kumar Singh, although the same was issued by Lt. Colonel R.N. Singh. Nothing has been brought on record to indicate that at any stage said Brig. Raj Kumar Singh has applied his own mind before issuing the convening order or the order detailing the officers of the court martial.

26. On this ground alone we quash the finding of the General Court Martial as well as sentence awarded to the petitioner pursuant to the said court martial proceeding its confirmation and promulgation thereof. We have also observed on merit that this is a case where the respondent has not taken into consideration the fact that even if it is assumed that the two files were not returned by the petitioner to the custodian, was the offence so serious to invite such a drastic consequence. As a matter of fact, the motive for removal of these files ought to have been with Lt. Colonel O.P. Sindhu as said files contained damaging evidence against him. The quantum of punishment of the General Court Martial and its subsequent confirmation is totally disproportionate and shocks the conscience of this Court. In the case of Ranjit Thakur Vs. Union of India & Ors. (1987) 4 SSC 61, Supreme Court has observed as under:

"The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount if itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."

27. The entire proceedings depict that the petitioner was denied the opportunity of cross-examination. While the petitioner was cross-examining Lt. Col. O.P. Sindhu, he demanded certain documents which is clear from page 99 of the proceedings. The General Court Martial allowed the request of the petitioner and directed the prosecution to make available the documents to the petitioner. The cross-examination of Lt. Colonel O.P. Sindhu was, however, closed without providing the documents to the petitioner. This is not the way to conduct the General Court Martial Proceedings. The procedure is totally contrary to the principle of natural justice.

28. We would not like to go into other submissions of the petitioner as we have quashed the order of the General Court Martial. It will be difficult for us to ascertain the loss which the petitioner has suffered on account of indignity and humiliation on account of his dismissal from the service. It is also true that no amount of damages can compensate the indignity and humiliation meted out to the petitioner.

29. In Lt. Colonel K.D. Gupta Vs. Union of India AIR 1989, SC 1393, Supreme Court held as under:

"The defense personnel have peculiar incidence of service. Life's course does not run smoothly for everyone. In the present proceeding which is for contempt, we do not think that we can award compensation under every head of claim. Some of factors relevant for such purpose are the duration of time for which the petitioner was subjected to various medical checks and hospitalisation, and the consequent suffering which he underwent, the loss of promotional prospects and the fact that he would now be obliged to request to be released from service prematurely. We are of the view that a total compensation of Rs. Four lakhs would meet the ends of justice. This would obviously mean that the petitioner would not be entitled to any other claim on these heads but we make it clear that he would be entitled to all other service benefits which an officer of the Lt. Colonel's rank, which the petitioner admittedly holds, would be entitled to. This judgment should serve the petitioner in vindication of his stand and to dispel clouds casts on his physical and mental characterisation and obviously n the event of his being considered for re-employment after retirement his suitability would be considered on the basis of his service records and the judgment of this court."

30. In Bhuwneshwar Singh's case (Supra), Supreme Court held as under:

"This Court in Nilabati Behera Vs. State of Orissa & Ors. Observed:

This Court and the High Courts, being the protectors of the civil liberties of the citizen have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen, to the remedy by way of a civil suit or criminal proceedings...... It is a sound policy to punish the wrongdoer and it in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned.

31. The Court then opined.

"The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation as exemplary damages in proceedings under Article 32 by this Court or under Article 226 by the High Courts for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interest and preserve their rights. Therefore, when the court moulds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for manages under the private law but in the broader sense of proving relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty...."

32. We have observed that since the petitioner has suffered humiliation from 1986 and almost 17 years have passed and we have quashed the order of convening of Court Martial the result is that the sentence awarded to the petitioner its promulgation thereby is also quashed. Petitioner shall be entitled to all consequential benefits.

33. The authority cited by the petitioner in the case of Lt. Colonel K.D. Gupta (Supra) is with regard to a matter which came before the Supreme Court in contempt proceedings. Therefore, that authority may not be applicable to the case of the petitioner. However, in Nilabati Behera's case (Supra), Supreme Court held that the Courts should take into account not only the interest of the applicant and the respondent but also the interest of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interest and preserve their rights. When the Court grants relief of compensation in proceedings under Article 226 of the Constitution of India, the Court exercises its power so that under the public law a wrongdoer is penalised and liability for public wrong be fixed on the State which has failed in its public duty to protect the fundamental rights of the citizen.

34. As there has been a gross violation of Rule 37 of the Army Rules, and the respondents have not preserved their records when the matter was pending in the Court and no reason has been assigned for destroying the same, this Court takes a serious and adverse view of the matter. Responsibility in this regard be fixed by Chief of Army Staff within three months. The petitioner has suffered indignity for almost 17 years, we direct the respondent to pay a sum of Rs.5 lacs as compensation for harassment and indignity suffered by him in addition to other benefits which the petitioner shall be entitled on account of quashing of the proceedings as stated above. This amount be paid by the respondent within three months.

35. Rule is made absolute.

36. Writ petition is allowed.