Delhi High Court

Ex. Major Manjeet Singh Ahluwalia vs Union Of India And Anr. on 18 September, 2008

Author: Mool Chand Garg

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+    W.P.(C) 1062/1986

%                             Reserved on     : 28th August, 2008
                              Date of Decision: 18th September, 2008



     EX.MAJOR MANJEET SINGH AHLUWALIA         ..... Petitioner
                         Through: Cap. Virender Kumar, Advocate


                 Versus

     UNION OF INDIA & ANR.                      ......Respondents

Through: Ms.Jyoti Singh, Advocate

CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE MOOL CHAND GARG

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

MOOL CHAND GARG,J

1. The petitioner was serving as a Major (Substantive) in 116

Medium Regiment attached to 18 Field Regiment in regular

Indian Army on permanent commission. The said Regiment was

detailed in the month of Oct/Nov 1982 in village Ramsar, District

Barmer (Rajasthan) for exercise. At that time, the petitioner was

officiating as the Commanding Officer of the Regiment. On the

basis of complaints received by the Police about stealing of Goats

and Sheeps belonging to villagers of that area, a court of enquiry

was held and a chargesheet was issued to the petitioner

containing five charges. Two of them were under Section 69 of

the Army Act 1950 (hereinafter referred to as Act) while the rest

three were under Section 63 of the Act. In fact, some of the

Goats/Sheeps stolen were sold which were apprehended by the

Police after the Complaints were lodged and were even identified

by the owners. The petitioner was thus sent for trial by a General

Court Martial (for short GCM) convened by the GOC of the area.

2 The Charge sheet served upon the petitioner reads as

under:

"The accused IC-1564 of Major (Substantive) Ahluwalia Manjeet

Singh of 116 Medium Regiment attached to 18 Field Regiment Officer

holding permanent commission in the Regular Army, is charged with:-

FIRST CHARGE    COMMITTING A CIVIL OFFENCE THAT IS TO SAY,
ARMY ACT        THEFT, CONTRARY TO SECTION 379 OF THE
SECTION 69         INDIAN PENAL CODE

                                   in that he,

at Field, on 19 Nov 82, committed theft of 84 sheep/goats belonging to the following civilians:-

No. of sheep/goats

SECOND CHARGE COMMITTING OF A CIVIL OFFENCE THAT IS ARMY ACT TO SAY, THEFT, CONTRARY TO SECTION 379 SECTION 69 OF THE INDIAN PENAL CODE

in that he,

at Field, on 21 Nov 82, committed theft of 123 sheep/goats belonging to the following civilians:-

No. of sheep/goats

THIRD CHARGE AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY, ARMY ACT DISCIPLINE SECTION 63 in that he,

at Field, on 07 Nov 82, being the officiating officer commanding of 116 Medium Regiment, improperly caused 51 sheep/goats be lifted by his jawans and sold them well knowing that the same were the property of nearby villagers.

FOURTH CHARGE         AN ACT PREJUDICIAL TO GOOD ORDER AND
ARMY ACT                 MILITARY DISCIPLINE
SECTION 63
                                  in that he,

at Field, on 07 Nov 82, being the officiating officer commanding of 116 Medium Regiment, misused vehicles BA NO. 81D-45050H 1 x Lorry 3 Ton SHAKTIMAN, the property of the Government for transportation of 51 sheep/goats from operational location BARMER to DHRANGADHRA FOR 434 KM.


FIFTH CHARGE    AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY,
ARMY ACT        DISCIPLINE
SECTION 69
                                  in that he,

at Field, on 19 Nov 82, being the officiating officer commanding of 116 Medium Regiment, misused 2 X Lorry 3 ton SHAKTIMAN vehicles BA No. 81D-45149M and 81D.45015 L the property of the Government for transportation of 84 sheep/goats from operational location at BARMER TO AHMEDABAD for 439 KM."

3. The petitioner pleaded not guilty to the charges. A complete

trial was held in which the petitioner fully participated by cross

examining the witnesses and also by leading defence and was

held guilty of all the charges except the first one. The GCM

sentenced the petitioner with the punishment of 'cashiering' from

service and also to undergo Rigorous Imprisonment for two years.

Pre-confirmation petition of the petitioner dated 12.12.1983

against the verdict of the GCM was rejected on 16.5.1984. The

findings and sentences awarded by the GCM were confirmed but

the unexpired portion of the sentence of two years rigorous

imprisonment was remitted. Thereafter the remaining sentence

was promulgated. The petitioner also submitted a post-

confirmation petition under Section 164(2) of the Army Act on

4.1.1985 as well as a supplementary petition/appeal on

21.6.1985 addressed to the Defence Ministry through the

Secretary, Ministry of Defence, against the decision of the GCM

as well as the rejection of pre confirmation petition which were

also rejected vide order dated 9.1.1986. Thereafter Chief of

Army Staff also ordered penal deductions to the extent of 50% of

the pay and allowances of the petitioner under Section 90(b) of

the Act.

4. Aggrieved by the aforesaid orders, the petitioner preferred

the present writ petition and prayed for the quashing of the order

passed by respondent No.1 dated 9 th January, 1986; to set aside

his conviction and sentence imposed by the GCM as well as for

the restoration of his service with full pay and allowances. In

addition to the grounds taken in the writ petition the petitioner

also took additional ground in his rejoinder and by way of an

additional affidavit stated to have been filed in 2004.

5. According to the petitioner, the order passed by the Central

Government dismissing the appeal is without application of mind

and is illegal. It is also his case that the appellate authority

should have passed a speaking order and should have reviewed

the punishment awarded to the petitioner which is

disproportionate and discriminatory. It was pleaded that the

proceedings of General Court Martial are void right from the

beginning as it was not convened by the appropriate authority

but by a Junior officer. It was urged that two sentences awarded

upon the petitioner are bad and are in violation of the Army Act

and the rules framed thereunder. It is stated that Cashiering of

the petitioner from service besides sending him to undergo

rigorous imprisonment for two years and then also deducting

50% of the pay and allowances, which punishment was not even

inflicted by the GCM tantamount to double jeopardy. It was also

averred that the charges were not clear but confusing. They were

also not proved inasmuch as, the ownership of sheeps/goats was

not established before the GCM. It was pleaded that petitioner's

Commanding Officer Lt. Col. Bharat Singh, who was also tried for

commissioning of theft as he joined the unit at the relevant

period was only awarded punishment by way of reduction in rank

while the third accused who was also held responsible for the

commission of offence namely Maj V. S. Malik had been awarded

'Discharge Simpicitor' whereas much higher sentence has been

awarded to the petitioner.

6. The respondents in their counter affidavit and additional

replies have denied all these allegations. According to them the

GCM was conducted in accordance with law. There had been no

violation of any of the provisions contained in the Army Act or the

Rules at any stage. The GCM was ordered and convened by the

appropriate authority. It has also been stated that any objection

regarding constitution of the GCM or any illegality committed by

GCM should have been raised before the GCM or to any higher

authority during the course of trial which was not done. Hence it

is pleaded that the petitioner being an officer cannot raise

technical pleas before this Court. Reliance has been placed on

the judgment delivered by the Apex Court in Union of India (UOI)

and Ors. v. Gurnam Singh 2004 (4) SCC 636. They have also

denied the charge of discrimination while awarding sentence. It

has been stated that cashiering from service is a pre-condition for

sentencing the accused for imprisonment. Both these punishment

can be imposed in view of the provisions contained under Section

71 to 73 of the Act. It is stated that section 71 of the Act lays

down different punishment which can be awarded on an accused,

Section 72 permits combination of punishments while Section 73

stipulates that the punishment to suffer Rigorous imprisonment

can be implemented only after the officer is cashiered.

7. It is also stated that Section 90(b) read with Section 93

permits deduction of pay and allowances as a penal deduction in

respect of person who has been either convicted by a criminal

court or by a court martial. The respondents have relied upon

the judgment delivered in the case of Union of India & Anr. Vs.

P.D. Yadav 2001 SCC 405.

8. It has been denied that Rule 30 of Army Rules was ignored

while framing the charges. It is stated that the charges framed

against the petitioner are specific and clear and there is no

confusion. It was also submitted that the other two accused

though tried separately for commission of similar offences which

was permissible under the Act, were also dismissed from service.

It is also stated that the discretion under Section 125 of the Act to

hold the trial under the Army Act has been exercised judiciously

and without any bias. It has also been submitted that the

sentence awarded upon the petitioner is in accordance with the

provision of the Army Act and is not disproportionate to the

offence. Even though Rule 35 of the Army Rules permits holding

of joint trial but it is not mandatory and therefore, holding of trial

of the petitioner and that of the other accused persons separately

does not suffer from any infirmity.

9. On merits it has been stated, that the charges stands

proved in view of the overwhelming evidence recorded after

giving full opportunity to the petitioner for the cross examination

of witnesses and also by examining the defence evidence

produced by him. It has been stated that sheep/goats stolen on

7.11.1982 and 19.11.1982 and 123 sheep/goats stolen on

21.11.1982 were sold by the petitioner unauthorisedly. They

were apprehended during the investigation of the FIR registered

on the complaints made by the villagers and were identified by

the owners before a Magistrate. Sub Inspector Ram Sarup

Acharya (PW-26) SHO Gadra Road, District Barmer has deposed

regarding this identification before the GCM. Owners of the

goats/sheeps have also deposed before the GCM that they had

identified their animals. Thus, it is submitted that there is no

occasion for this court to interfere with the findings of the GCM or

with the sentence awarded to the petitioner which was

permissible in law, while exercising the writ jurisdiction, more so

when the pre confirmation and post confirmation petition

including the appeal filed by the petitioner stands dismissed.

Reference has been made to judgment of the Apex Court

delivered in the case of Union of India and Ors. Vs. Himmat Singh

JT 1999 (3) SC 631.

10. We have heard the submissions from both the sides and

have gone through the pleadings of the parties which contain the

entire record of GCM. At this juncture we may observe that

records were directed to be produced by a division bench of this

Court on the very first date when the writ petition was filed and

were produced in the Court and it is thereafter that the

respondents were directed to file the counter affidavit. The

parties completed their pleadings inasmuch as the respondents

filed their counter affidavit while the petitioner filed a rejoinder as

well as an additional affidavit in support of the additional grounds

and finally another affidavit allegedly in 2004 which is not

available. However, a copy of the same was filed subsequently.

The respondents also filed additional replies. Both the parties

have also filed their synopsis wherein they have reiterated the

submissions made by them in their pleadings as well as by way of

oral arguments.

11. The petitioner has relied upon the following judgments:

1. AIR 1987 SC. 1413 Lt. Col. Prithipal Singh Bedi Vs. UOI & Ors.

2. AIR 1981 SC, 497 Capt. Virendra Kumar Vs. UOI & Ors.

3. JT 1194 (7) SC 21 Maj. Gen. (Old Capt.) Virendra Kumar Vs. UOI & Ors.

4. 1995(5) SCC 742 UOI Vs. Harish Chandra Goswami.

5. 2004 (Crl) SCC 1372 UOI Vs. Gurnam Singh.

6. 2000(5) SCC 742 UOI Vs. Charanjit Singh Gill.

12. The judgments cited by the petitioner have also been relied

upon by the respondents as aforesaid. It has been submitted,

that infraction of rules in case of an officer are required to be

brought to the notice of the authorities at the stage when such

aberration takes place failing which no cognizance can be taken

of those infractions unless serious prejudice is caused. No such

step was taken by the petitioner who was satisfied with the

convening of the GCM as also about the members of GCM. Even

otherwise his allegations are vague.

13. We have also gone through the provisions contained under

the Act as well as the rules framed thereunder for holding a GCM.

We have also perused the authorities cited at the Bar.

14. At the outset, we may discuss the scope of judicial

intervention in the matter like the one in hand, which is very

limited. It is well settled that while sitting as a writ court under

Article 226 of the Constitution, this Court does not sit as a Court

of appeal and interferes only if there is infraction of the rules or

the provisions of the Act or if the punishment imposed is

excessively disproportionate and shocks the conscience of this

Court. It would be useful to extract some observations by the

Apex Court which lay down the law in this regard. Para 4 and 5 of

the judgment delivered by the Apex Court in the case of Union of

India Vs. Himmat Singh Chahar JT 1999 (3) SC 631 reads as

under:

4. In view of the rival submissions at the Bar the short question that arises for consideration is what would be the extent of the jurisdiction in exercising power under Article 226 of the Constitution over the findings of the Authority in Court Martial Proceedings? The Defence personnel serving in Army, Navy or Air force when commit any offence are dealt with by the special provisions contained in the Army Act or the Navy Act or the Air force at and not by the normal Procedure Code. The said Navy Act is a complete code by itself and prescribes the procedure to be followed in case it is decided that an officer should be tried by Court Martial. The Act also provides sufficient safeguard by way of further appeal to be Chief of the Staff and then ultimately to the Union Government.

5. Since the entire procedure is provided in the Act itself and the Act also provides for a further consideration by the Chief of the Naval Staff and then by the Union Government then ordinarily there should be a finality to the findings arrived at by the Competent Authority in the Court Martial Proceeding. It is of course true that notwithstanding the finality attached to the orders of the Competent Authority in the Court Martial Proceeding the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage

of justice or for finding out that whether there has been violation of the principles of natural justice which vitiates the entire proceeding or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act. The said power of judicial review cannot be a power of an Appellate Authority permitting the High Court to re-appreciate the evidence and in coming to a conclusion that the evidence is insufficient for the conclusion arrived at by the Competent Authorities in Court Martial Proceedings. At any rate it cannot be higher than the jurisdiction of the High Court exercised under Article 227 against an order of an inferior Tribunal. This being the parameter for exercise of power of judicial review against the findings of a Competent Authority in a Court Martial Proceeding, and applying the same to the impugned judgment of the High Court we have no hesitation to come to the conclusion that the High Court over-stepped its jurisdiction in trying to re- appreciate the evidence of Mrs. Nirmala Sharma and in coming to the conclusion that her evidence is not credible enough to give a finding of guilt of the respondent of a charge under Section 354.

15. In the present case, the petitioner contested the

proceedings and cross-examined every witness who was

examined during the GCM and also led evidence. He has also not

particularized his allegation of bias for initiating the enquiry

against him or for holding the GCM. Thus, the only point which

needs consideration is about the allegations of infraction of rules

and procedure, if any, while framing the charges or while holding

the GCM

16. The first point raised by the petitioner is that the GCM was

not ordered and convened by an officer competent to do so. He

has also referred to Section 109 & Section 111 of the Act as well

as Rule 37 of the Army Rules, 1954 and has alleged that there

was a violation thereof. Section 109 and 111 of the Army Act are

reproduced hereunder:

109.- Power to convene a general court- martial--A general court-martial may be convened by the Central Government of [the Chief of the Army Staff] or by any officer empowered in this behalf by warrant of [the Chief of the Army Staff].

110.-- XXXX

111. - Contents of warrants issued under sections 109 and 110.--A warrant issued under section 109 or section 110 may contain such restrictions, reservations or conditions as the officer issuing it may think fit.

17. Rule 37 of the Army Rules, 1954 is also reproduced

hereunder for the sake of reference:

"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 and, 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."

It has been argued that there was infirmity and illegality in

the order regarding holding of the petitioner by GCM and

convening of the GCM. However, this argument has no legs to

stand. No doubt in this case the convening officer was different

than the person who ordered the court martial which is

permissible in view of the aforesaid provisions. Reference can be

made to the judgment of the Supreme Court in UOI Vs. Gurnam

Singh 2004 (Crl) SCC 1372 wherein it has been held:

"10. At the outset, we must say that Rule 37 does not contemplate that the officer who actually convenes the Court Martial need satisfy himself that the charges framed against the delinquent officer are within the purview of the Army Act and that the evidence justifies a trial by Court Martial of such charges. The above satisfaction can be entered by an officer empowered under Section 109 of the Army Act before the actual convening of the Court Martial. In other words, the officer who finds that the charges are coming within the meaning of the Act and the evidence justifies a trial by Court Martial need not necessarily convene the Court Martial. The officer who very well competent to do so can convene the Court Martial. The officer who records the satisfaction under sub-rule (1) and the officer who actually convenes the Court Martial under sub-rule (3) of Rule 37 can be two different officers, but both must be competent under Section 109 of the Army Act."

18. Till filing of rejoinder and an additional affidavit, the

aforesaid point was not even taken up by the petitioner what to

say of having raised it before the GCM. Perusal of the court

martial proceedings also goes to show that the order to frame

charges against the petitioner and holding of GCM has been

passed by a competent authority i.e. Major General Kartar Singh

Gill, who was the GOC, based upon a court of inquiry held earlier

and also keeping in view the complaints made to the police and

apprehension of stolen sheep/goats from the army vehicles which

were in the custody and supervision of the petitioner.

19. The next point raised by the petitioner is that the charges

were not framed in accordance with the provisions of Rule 30 of

the Rules. The said Rule reads as under:

"30.Contents of charge.--(1) Each charge shall state one offence only and in no case shall an offence be described in the alternative in the same charge.

(2) Each charge shall be divided into two parts--

(a) statement of the offence; and

(b) statement of the particulars of the act, neglect or omission constituting the offence.

(3) The offence shall be state, if not a civil offence, as nearly as practicable in the words of the Act, and if a civil offence, in such words as sufficiently describe in technical words.

(4) The particulars shall state such circumstances respecting the alleged offence as will enable the accused to know what act, neglect or omission is intended to be proved against him as constituting the offence.

(5) The particulars in one charge may be framed wholly or partly by a reference to the particulars in another charge, and in that case so much of the latter particulars in another charge, and in that case so much of the latter particulars as are so referred to, shall be deemed to form part of the first mentioned charge as well as of the other charge.

(6) Where it is intended to prove any fact in respect of which any deduction from pay and allowances can be awarded as a consequence of the offence charged, the particulars shall state those facts and the sum of the loss or damage it is intended to charge."

20. Perusal of the charge sheet as quoted above shows that the

charges are clear and unambiguous. In fact, the charges are for

commission of theft, misuse of unit vehicle for lifting the

goats/sheep of the third parties without their permission and

directing the jawans to help the petitioner in committing theft.

Specific charges have been framed against the petitioner in this

regard which are punishable under Sections 69 and 63 of the

Army Act. Thus, there is no confusion insofar as the charges

were framed against the petitioner.

21. Now coming to the plea of the petitioner that the offences

ought to have been tried by the civil authorities as the theft was

not of the government property but it was of the private property.

In this regard a reference to Section 63, 69 & 70 of the Army Act

would be necessary. Those provisions read as under:

63. Violation of good order and discipline-- Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years of such less punishment as is in this Act mentioned.

63-68. xxxx

69.Civil offences--Subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India, commits any civil offence, shall be deemed to be guilty of an offence against this Act and, if charged therewith under this Section, shall be liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say,--

(a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and

(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned

70. Civil offences not triable by court-

martial-A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court-martial, unless he commits any of the said offences--

(a) while on active service, or

(b) at any place outside India, or

22. A perusal of the aforesaid provisions makes it clear that

except for the prohibition contained under Section 70 all offences

even though they may be civil offences can be tried under the

Army Act at the discretion of the army authorities as is available

to them under Rule 125 of the Army Rules, 1954. The army

authorities have exercised the discretion vested in them. This

Court is not required to interfere in the discretion so exercised

which appears to be based upon the involvement of senior

officials of army in offences involving theft of properties of the

civil personnel while the regiment was on exercise.

23. As regards the argument that the sentences of cashiering

and imprisonment being double jeopardy, it would be relevant to

take note of Rule 71, 73 & 74 of the Army Act which reads as

under:

71. Punishments awardable by courts- martial.--Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by courts- martial, according to the scale following, that is to say,--

(a) death;

(b) transportation for life or for any period not. less than seven years;

(c) imprisonment either rigorous or simple, for any period not exceeding fourteen years;

(d) cashiering, in the case of officers;

(e) dismissal from the service;

(f) reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers; and reduction to (he ranks or to a lower rank or grade, in the case of non-commissioned officers:

Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy;

(g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officers; and forfeiture of all or any part of their service for the purpose of promotion, in the case of any of them whose promotion depends upon length of service;

(h) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;

(i) severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officers;

(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service;

(k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal:

(l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.

                72. xxxxx

                73.Combination    of   punishments:    A

sentence of a court-martial may award in addition to, or without any one other

punishment, the punishment specified in clause (d) or clause (e) of section 71 and any one or more of the punishments specified in clauses (f) to (l) of that section.

74. Cashiering of officers.- An officer shall be sentenced to be cashiered before he is awarded any of the punishments specified in clauses (a) to (c) of section 71.

24. In view of the aforesaid, it is apparent that a court martial

can award both the sentences together, that is, cashiering as well

as of rigorous imprisonment. However, before sending the

incumbent to suffer imprisonment, it is necessary to cashier him

first.

25. Now, coming to penal deductions, it may be appropriate to

take note of Section 93 and Section 90(b) of the Army Act.

93. Pay and allowances during trial.- In the case of any person subject to this Act who is in custody or under suspension from duty on a charge for an offence, the prescribed officer may direct that the whole or any part of the pay and allowances of such person shall be withheld, pending the result of his trial on the charge against him, in order to give effect to the provisions of clause (b) of sections 90 & 91

90.Deductions from pay and allowances of officers.- The following penal deductions may be made from the pay and allowances of an officer, that is to say, -

(a) XXXXXXX

(b) All pay and allowances for every day while he is in custody or under suspension from duty on a charge for an offence for which he is afterwards convicted by a criminal court or a court-martial or by an officer exercising authority under section 83 or section 84;"

26. Thus, even on that score, no relief can be granted to the

petitioner. In view of that deduction of pay and allowance cannot

be considered as a punishment under Section 71. It will be also

appropriate to make a reference to a judgment of the Supreme

Court delivered in the case of Union of India and Anr. Vs. P.D.

Yadav 2002 (1) SCC 405. The relevant observations are

contained in paragraph 23 and 24 of the judgment which are

reproduced hereunder for the sake of reference:

23. Section 71 of the Army Act provides for various kinds of punishments which may be imposed for offences committed by persons subject to the Act and convicted by Court Martial which may vary from death to stoppage of pay and allowances. In terms of Army Pension Regulation 16(a) and Navy Pension Regulation 15(2), pension may be forfeited partly or fully subject to the conditions mentioned therein. These Regulations are independent and the authority to grant or forfeit pension is the President of India and the Central Government respectively. As rightly found by the High Court, the said Regulations are neither inconsistent with not contrary to the provisions of the Army Act or the Navy Act as the case may be. The said Regulations and the provisions dealing with the punishments under the Acts cover different fields and have different purposes to serve. Punishments are imposed after trial on the basis of the misconduct proved. The pension regulation deal with the grant or refusal of pension depending on satisfactory qualifying service earned by a person and depending on the nature of punishments imposed, mentioned in the Regulations. The Regulations come into play at a stage subsequent to the imposition of punishment. No doubt, pension is not a bounty but it is the earning of a person after satisfactory completion of qualifying service and if not otherwise disentitled. Under Section 71(h), a punishment of forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose, can be imposed. If forfeiture of service has the effect of reducing total qualifying service required to earn pension, a person concerned is disentitled for pension itself. In other cases, it may have bearing in regard to claim for increased pay or

any other purpose. If by virtue of such punishment itself, a person is not entitled for any pension, the question of passing an order forfeiting pension under Regulation 16(a) may not arise. As per Section 71(k), in case of a person sentenced to cashiering or dismissal from the service, a further punishment of forfeiture of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal may be imposed. Clause (k) of Section 71 does not speak of pension unlike clause (h) of the same Section.

24. The argument that since no punishment was imposed under clause (k) by the authorities, although it could have been done, then is no warrant to pass an order forfeiting pension under the Army Pension Regulations in respect of same offence cannot be accepted. As already noticed above, the provisions relating to punishments under the Acts and pension Regulations operate in different fields. Clause (k) refers to forfeiture of arrears of pay and allowances and other public money due to a person at the time of cashiering or dismissal. Pension is one, which becomes due subsequent to retirement or termination of service subject to satisfying certain conditions of satisfactory qualifying service and if not otherwise disentitled for claiming pension. Firstly, clause

(k) does not speak of pension as such: it speaks of all arrears. pay, allowances and other public money due to a person. It cannot be said that on the date of cashiering or dismissal there could be any arrears of pension. Section 73 of the Army Act enables the authorities to impose punishments in combination. Merely because punishment is not imposed under clause (h) or (k) of Section 71 and other punishments are imposed, it does not mean that the President is deprived of his power and jurisdiction to pass order under Regulation 16(a); so also the Central Government under Regulation 15(2)( of the Navy Pension Regulations taking note of the punishment imposed under Section 81 of the Navy Act. In a case where punishment is imposed under Section 81(m) of the Navy Act forfeiting pension and/or gratuity, need for passing an order forfeiting pension under Regulation 15(2) of the Navy (Pension) Regulations may not arise. But that does not mean that in cases of punishments imposed, which are covered by Regulation 15 the Central Government is deprived of its power to pass appropriate order under the said Regulation, when such power is

specifically conferred on the Central Government under the very Regulations, which enables granting of pension and/or gratuity. It is rather not possible to accept the contention that a General Court Martial and confirming authorities imposing punishments can debar the President or the Central Government from passing orders as provided for specifically and expressly under the Pension Regulations.

27. The issue as to whether penal deduction in addition to

awarding sentence to an accused under Section 71 also came up

for consideration in this judgment and it has been held that penal

deduction in addition to punishment imposed upon an accused

who has been tried under the Army Act does not constitute

double jeopardy. Reference can be made to para 25 of the

judgment which is reproduced hereunder for sake for reference:

25. A contention, though feebly, was advanced on behalf of some of the respondents that forfeiture of pension in addition to the punishment imposed under Section 71 of the Army Act amounted to double jeopardy. In our view, this contention has no force. There is no question of prosecuting and punishing a person twice for the same offence. Punishment is imposed under Section 71 of the Army Act after trial by Court Martial. Passing an order under Regulation 16(a) in the matter of grant or forfeiture of pension comes thereafter and it is related to satisfactory service. There is no merit in the contention that the said Regulation is bad on the ground that it authorized imposition of a double penalty; may be in a given case, penalty of cashiering or dismissal from service and the consequential forfeiture of pension may be harsh and may cause great hardship but that is an aspect which is for the President to consider while exercising his discretion under the said Regulation. May be in his discretion, the President may hold that the punishment of cashiering or dismissal or removal from service was sufficient having regard to circumstances of the case and that a person need not be deprived of his right to pension. A crime is a legal wrong for which an offender is liable to be prosecuted and punished but only once for such a crime. In other words, an offender cannot be punished

twice for the same offence. This is demand of justice and public policy supports it. This principle is embodied in the well-known maxim "Nemo debet bis vexari, si contest curiae quod sit prouna et sadem causa" meaning no one ought to be vexed twice if it appears to the court that it is for one and the same cause. Doctrine of double jeopardy is a protection against prosecution twice for the same offence. Under Articles 20-22 of the Indian Constitution, provisions are made relating to personal liberty of citizens and others. Article 20(2) expressly provides that "No one shall be prosecuted and punished for the same offence more than once." Offences such as criminal breach of trust, misappropriation, cheating, defamation etc., may give rise for prosecution on criminal side and also for action in civil court/other forum for recovery of money by way of damages etc., unless there is a bar created by law. In the proceedings before General Court Martial, a person is tried for an offence of misconduct and whereas in passing order under Regulation 16(a) for forfeiting pension, a person is not tried for the same offence or misconduct after the punishment is imposed for a proved misconduct by General Court Martial resulting in cashiering, dismissing or removing from service. Only further action is taken under Regulation 16(a) in relation to forfeiture of pension. Thus, punishing a person under Section 71 of the Army Act and making order under Regulation 16(a) are entirely different. Hence, there is no question of applying principle of double jeopardy to the present cases.

28. The last submission made on behalf of the petitioner was

that he had been discriminated against as the punishment

imposed upon him, i.e., 'cashiering' and also sending him to

undergo imprisonment for two years, is harsher than the

punishment imposed on the other two officers, namely, Lt. Col.

Bharat Singh who was Commanding Officer of the Regiment and

Major V.S. Malik. It was alleged that while Lt. Col. Bharat Singh

was only reduced in rank, Major V.S. Malik was punished with the

punishment of discharge simplicitor. However, it is not so. The

counter affidavit filed by the respondents makes it clear that both

the aforesaid officers have also been dismissed from service.

Moreover, looking to the status of the petitioner, who was in fact

a major and was even commanding the regiment at the relevant

point of time, the punishment imposed upon him cannot be

considered as disproportionate.

29. While concluding we would also like to take help from the

judgment of the Supreme Court in Lt. Col. Prithi Pal Singh Bedi v.

UOI AIR 1982 SC 1413 where it has been held that while

recognizing the Army Rules, the Army Act have to be applied and

strictly followed even if the Rules are not meeting the

requirement of Article 21, it was observed:

"The Parliament has the power to restrict or abrogate any of the rights conferred by Part III of the Constitution in their application to the members of the Armed Forces so as to ensure the proper discharge of duties and maintenance of discipline amongst them. The Act is one such law and, therefore, any of the provisions of the Act cannot be struck down on the only ground that they restrict or abrogate or tend to restrict or abrogate any of the rights conferred by part III of the Constitution and this would indisputably include Art. 21. But even apart from this, it is not possible to subscribe to the view that even where the prescribed procedure inheres compliance with principles of natural justice but makes the same dependent upon the requisition by the person against whom the inquiry is held, it would be violative of Art. 21 which provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. If the procedure established by law prescribes compliance with principles of natural justice but makes it dependent upon a requisition by the person against whom an inquiry according to such procedure is to be held, it is difficult to accept the submission that such procedure would be violative of Art.

21. And as far as the Rules are concerned, they have made clear distinction between an officer governed by the Act and any other person subject to the Act. Expression „Officer; has been defined to mean a person commissioned defined to mean a person commissioned, gazetted or in pay as an officer in the regular Army and includes various other categories set out therein. By the very definition an officer would be a person belonging to the upper bracket in the Armed Forces and any person other than an officer subject to the provisions of the Act would necessarily imply persons belonging to the lower categories in the army service. Now, in respect of such persons belonging to the lower category it is mandatory that Rr.22, 23 and 24 have to be followed and there is no escape from it except on the pain of invalidation of the inquiry. "

30. A bare reading of the judgment shows that while the

requirement of sticking to the Rules in a case of an officer may

not be considered mandatory unless the infractions are brought

to the notice of the authorities at the earliest such infraction in

the case of PBOR is mandatory and violation of such Rules and

the provisions of the Act can set aside the entire proceedings.

However, in the present case, the petitioner was an officer being

a major in the Army but raised no objection about the infraction

of the procedure at the earliest even otherwise, he has not been

able to point out that there has been any infraction of the Rules

or procedure which has caused any serious prejudice to the case

of the petitioner requiring interference by this court while