Delhi High Court

Lt. Col. Ravendra Kumar vs Union Of India And Ors. on 22 September, 2008

Author: Mool Chand Garg

*         IN THE HIGH COURT OF DELHI AT New Delhi

+         WP (C) No. 5644/2002

                   Reserved on      : 05th September, 2008
%                  Date of decision: 22nd September, 2008


     Lt. Col. RAVENDRA KUMAR                   ...Petitioner
                       Through:     Mr. C.M. Khan, Advocate.


                               Versus

     UNION OF INDIA & ORS.                    ...Respondents
                      Through:      Ms. Anjana Gosain, Adv.

     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 joined Indian Army in the year 1979 as

an Engineering Graduate. In 1996 he was posted as Officer

Commanding of Station Workshop EME at Belgaum, North

Karnataka as Lt. Col. At that station, other units including

Maratha LIRC commanded by Brigadier S. P. Sharma, (SM)

was also stationed. One Col. C. D. Sawant was the Dy.

Commandant of the Maratha LIRC. In July 1997

Government of India decided to disband the Station

Workshop EME Belgaum and the responsibility to sell off the

regimental properties was placed upon the petitioner.

Auction of the Regimental Property took place on 16.3.98.

A unit namely EME Cell Belgaum was raised in place of the

workshop which was also placed under the command of the

petitioner. The property of the EME Cell was also disposed

of by an auction held on 24.3.1999 in terms of the decision

taken on 19.3.99. A final audit of the regimental fund

account was submitted on 30.3.1999 signed by all the

board members and countersigned by the petitioner.

However Major A.K. Singh who also happened to be the

chairman of auction board on the very next day i.e. on

31.3.1999 raised certain objections to the audit report. A

response was called from the petitioner which was

submitted on 5.4.1999. The allegations leveled against the

petitioner are about misappropriation of certain properties

of the unit not put up for auction, and kept by the petitioner

himself by manipulating the auction.

2. It is the case of the petitioner that Col. C. D. Sawant

(SM) was inimical to the petitioner and has falsely

implicated him in this case. Soon after Major A.K.Singh

raised objections, Col. Sawant ordered a Court of Inquiry by

appointing his battalion officer Lt. Col. G. C Chohan OF 8

Maratha LI as its Presiding Officer. During the Court of

Inquiry the petitioner was attached to Station Head Quarter,

Belgaum even though his unit the EME Cell stood disbanded

on 31.3.1999 and ceased to exist. It is stated that his

movement for next posting to Nagaland was delayed even

though he was not connected with the Court of Inquiry. He

was allowed to join to his next posting after the conclusion

of the Court of Inquiry on 10.8.1999 to 310 Field Station

Workshop EME (Nagaland).

3. It is also his case that no one deposed against him

during the aforesaid C O I. However, vide letter dated

2.2.2000 signed by Brig. S. P. Sharma, the Station

Commander, the petitioner was asked to make good a loss

of Rs.63924/- of the Regiment fund of the Ex-EME Cell

Belgaum by alleging that the said amount had been

misappropriated while disposing off the properties of the

Regiment. The petitioner was also attached to Maratha

LIRC for finalization of disciplinary case against him, on

30.01.2000 and on the same day he was also informed that

Lt. Col. Satbir will record the summary of evidence who also

happened to be from Maratha LIRC. It is stated that hearing

of charge was done by Col. C. D. Sawant even though he

was not his Commanding Officer without any prior verbal or

written notice contrary to the provisions of Army Rule 22 in

a very intransparent and surreptitious manner. It is

alleged that the provisions of Army Rule 180 were also not

complied with. Petitioner further alleged that during recording

of summary of evidence he was harassed and made to wait

and sit in isolation. The petitioner claims to have objected to

the malpractices adopted by Col.C.D. Sawant vide his

letters dated 8.4.2000, 11.4.2000 & 17.4.2000.

4. It is the case of the petitioner that after recording the

summary of evidence the petitioner was tried by a General

Court Martial as per order dated 6.9.2000 without supplying

him summary of evidence immediately, but supplied only on

28.2.2001. Even the relevant documents were also not

supplied. It is also submitted that during the General Court

Martial also he was harassed several times and denied visit

to his civil counsel. During adjournments of trial he was not

released which further prejudiced his defence. The Deputy

Judge Advocate General, appointed for GCM was junior to

the petitioner and was not changed despite objections

raised. Even the defence assistant of the petitioner Col. A.

K. Malhotra was humiliated by DJAG. Consequently he

withdrew from the proceedings. Finally the petitioner was

convicted by the General Court Martial of the charges

framed against him under Section 63 of Army Act (for short

"the Act") later converted to Section 52 (b) of the Act and

has been sentenced to undergo punishment of „cashiering‟

and sentence of one year rigorous imprisonment vide orders

pronounced on 15.6.2001. The pre-confirmation petition

filed by the petitioner under Section 164(1) of the Act was

decided vide order dated 21.9.2001 only after intervention

of this Court and was rejected. The sentence imposed was

confirmed except that authorities remitted the remaining

period of sentence of one year RI and thereafter the

remaining sentence was promulgated. The petitioner then

filed the post confirmation petition which was also

dismissed vide order dated 24.4.2002. Hence this petition.

5. By way of the present Writ Petition, the petitioner has

prayed for setting aside the disciplinary proceedings taken

out against him right from the beginning and also prays that

the sentence imposed upon him be set aside and he be

reinstated in service with all consequential benefits, on the

following grounds:

(i) Because Col C.D. Sawant who directed holding of the court of inquiry, recording summary of evidence and conducted hearing of charge had no authority to do so. He was also biased against him.

(ii) Because no opportunity was granted to the petitioner for the cross-examination of witnesses as per Rule 22 of the Army Rules (for short ―the Rules‖). The hearing on the tentative charge was a mere farce.

(iii) Because the initiation of the disciplinary action against the petitioner when no witness had spoken against him in the Court of Inquiry was illegal and biased. Rule 180 of the Army Rules also not complied with.

(iv) Because the respondents ought not to have appointed a Judge Advocate General who was a junior of

the petitioner. In any case when objection was raised corrective steps should have been taken.

(v) Because the DJAG committed misbehavior with the defending officer of the petitioner compelling him to opt out of the proceedings causing a serious prejudice to the case of the petitioner.

(vi) Because the punishment of Cashiering and rigorous imprisonment for one year was not justified in the present case.

(vii) Col. C.D. Sawant who acted as the Commanding Officer of the petitioner at the relevant time acted with bias and with a determined intention to harm the petitioner.

6. It will be appropriate to take note of the tentative

chargesheet issued to the petitioner which is reproduced

hereunder:

The accused No. IC-39032 W Lt Col Ravender Kumar of 310 Stn Wksp EME, C/o 99 APO, attached with the Maratha Light Infantary Regimental Centre, Belgaum is charged with:-

Army Act Section 63

AN OMMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE

In that he,

at Belgaum, on 16 March 1998 and 24 March 1999 while functioning as officer Commanding, EME Cell, Belgaum failed to administer the Regimental fund judiciously by allowing auction of regimental property to the disadvantage of Regimental Fund.

             Station:    Belgaum                              Sd/-
             Date 02 March 2000                         (CD Sawant)

                                                      Colonel
                                     Officier Commanding Troops
                                     The Maratha LIRC, Belgaum

Later on this charge was converted into Section 52(b) of

the Act.

7. On the other hand the respondents denied all the

aforesaid submissions. They have submitted that the

grounds raised by the petitioner have no legs to stand. It is

submitted that the charge sheet was issued by the

competent authority as Brigadier S. P. Sharma was admitted

in Hospital and in his place Col. C. D. Sawant by virtue of

being IInd in Command acted as the officiating commandant

of the Maratha Light Infantry Regimental Centre in addition

to his own duties of Dy. Commandant and Officer

Commanding Troops and as such he was the commanding

officer of the petitioner at the relevant time. In this regard,

an official notification was also issued in accordance with

the Defence Service Regulations. A copy of the notification

in respect of the authority of Col. C. D. Sawant is available

on record which is reproduced hereunder:

―RESTRICTED CENTRE ROUTINE ORDER PART I BY COL CD SAWANT, SM OFFICIATING COMMANDANT THE MARATHA LIGHT INFANTRY REGIMENTAL CENTRE, BELGAUM ____________ _______________________ __

Station: Belgaum Wednesday 09 Feb 2000

_____________________________________

076 CHANGE OF COMMAND. IC-28419F Brig SP Sharma, Comdt, MH Belgaum mein dinank 09 Feb 2000 ke admit hone par IC-3246DP Col CD Sawant SM, Dy. Comdt. Ke allawa Karyawahak Commandant ka padbhar sambhalenge."

8. The respondents also submitted that Army Rule 180

was duly complied with during the COI. Once allegations

came against the petitioner he was allowed to cross-

examine the witnesses. As such, there was no requirement

of hearing of charge as per the proviso to Army Rule 22.

The Commanding Officer was empowered to direct

Recording of Summary of evidence if prima facie case

existed against the petitioner. However, though not

required, hearing of charge was properly done by giving an

opportunity to the petitioner as per law. Rule 22 of the Army

Rule is reproduced as under for the sake of reference:

―22.Hearing of Charge.- (1) Every Charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence:

Provided that where the charge against the accused arises as a result of investigation by a Court of inquiry, wherein the provisions of rule 180 have been complied with in respect of that accused, the Commanding officer may dispense with the procedure in sub-rule (1).‖

---------------------------------------------------

9. Regarding the third submission, it is submitted

that only after the conclusion of Court of Inquiry when it

became clear that the petitioner abused his position as

officer commanding of the unit (EME Workshop & EME Cell)

and forced his subordinates to tow his line to show that a

proper auction was carried out whereas it was not so carried

out and loss was caused to the state, taking into account

the facts and material available on record, disciplinary

action was ordered against the petitioner giving all

opportunity to the petitioner under Army Rule 180. This is

apparent from the attachment order of the petitioner for the

purpose of disciplinary action to be taken against him. The

said order was passed on 31.1.2000 and reads as under:

―Confidential

Tele: 337511 Additional Directorates

Discipline and Vigilance Adjutant General's Branch Army Headquarters DHQ PO New Delhi-110011

C/06270/SC/228/AG/DV-2 31 Jan 2000 Headquarters Eastern Command

ATTACHMENT ORDER: OFFICERS

1. Ref HQ Southern Command letter no. A/2402615/DV-2(2A) dated 10 Jan 2000.

2. Under the provisions of AI 30/86, IC-39031W Lt. Col. Ravinder Kumar of 310 Stn Wksp EME/Eastern Command is hereby attached to MARATHA LI RC, Belgaum till finalization of the disciplinary case pending against him.

3. The officer will move on attachment forthwith.

(TK De) SCSO Dir/DV-2 ForAdjutant General

Copy to :

HQ Southern Command ATNKK AND G AREA (A) Stn Hq Belgaum MARATHA LI RC Belgaum 310 Stn Wksp EME

C/O 99 APO CDA(O), Pune MS (12)‖

10. The respondents have summarised their case against

the petitioner by making following averments in paras 3 (iv)

& (v) of their counter affidavit ;

―3.(iv) In reply to para 3(iv) it is submitted that on disbandment of the station workshop, EME Belgaum on 31.7.1997, the new unit called EME cell, Belgaum with one officer, one Junior Commissioned Officer and 6 other ranks was to be raised by transfer of personnel from disbanded Station Workshop, EME Belgaum. The petitioner as Officer Commding was aware of the disbandment of this EME Cell, Belgaum well before 19th March 1999. Though the Station Workshop EME, Belgaum stood disbanded on 31.7.1997, the work on transfer of unit personnel, deposition /distribution unserviceable stores/properties, disposal of Regiment and other Government properties, connected documents was not completed by the petitioner well before 31.7.1997 as it is quite common that works of raising/disbandment carries on beyond the dates fixed for the same. Accordingly, the process of disbandment continued much beyond 31.7.1997. The fact that the auction of items of Regimental properties of Station

Workshop EME, Belgaum was held nine months later in March 1998 amply proves the same. Similarly, the petitioner dragged the disbandment process of his minor unit EME Cell, Belgaum consisting of just eight personnel well beyond 31st March 1999 he moved on posting to 310 Field Workshop in Nagaland by September, 1999. For the sake of administration and to regularize the overstay of the petitioner and his unit personnel beyond 31st March 1999 their attachment to Station Headquarter Belgaum with effect from 1st April 1999 was ordered and it continued till completion of disbandment work.

3.(v) contents of para 3(V) are wrong and are denied. It is submitted that the auction was to be conducted under the provisions of Special Army order 9/S/76 and Regulations for the Army. In violation of these provisions regarding giving wide publicity to all units in station and producing all the listed stores for auction, the petitioner as Officer Commending of EME Cell, Belgaum failed in his duties. The items in which the petitioner had personal interest were never produced for auction hence there was no bidding on those items. The petitioner himself was also present for both the auctions. Everything at the auctions was as per his orders and instructions. The Junior Commissioned Officers & Non commissioned Officers detailed as Presiding Officer/Members of the auction board carried out his illegal orders. Evidence to this effect is already on record at the Summary of Evidence and General Court Martial proceedings.‖

11. It is further submitted that the appointment of JA of a

lower rank was made since JA of the rank of the petitioner

was not available. It is stated that JAG of junior rank could

be there for the trial of the GCM which is permissible. A

certificate to that effect was endorsed in the convening

order by the convening authority in compliance of C.S. Gill‟s

judgment. It is also submitted that since the petitioner was

represented by a legally qualified counsel who defended

him in the trial and the fact that a suitable officer was

provided as defending counsel to the petitioner as per law,

no prejudice has been caused to the petitioner on this

account.

12. It is submitted that the punishment given to the

petitioner while confirming was reduced by the confirming

authority to „cashiering‟ and remission of the unexpired

portion of the rigorous imprisonment. Considering the

nature of the charge, complicity of the offence committed

by the petitioner by abusing his position and manipulating

the documents, the punishment was commensurate with

the charge and no interference is called for on this account.

Further, the punishment was awarded in view of the fact

that the petitioner had carefully planned and executed the

illegal auction whereby the petitioner misappropriated the

funds to the tune of Rs.63,924/- (Out of a total of

approximately Rs. 90,000, as submitted by the petitioner in

court) by not submitting attractive items, like T. V., VCP etc.

for auction of which the petitioner was already in

possession. In the auction no member of the board was

allowed to participate, the petitioner submitted false details

of buyers and continued to enjoy the said products. It is

also pertinent to note that the minimum reserve price was

also fixed by the petitioner. The petitioner further

proceeded to make two of his Junior officers Members of the

Board of Auction so that the Petitioner could use undue

influence on them to get the O.K. report and being head of

the command, it was a gross indiscipline on his part,

particularly when he made his own two unit members to do

something illegal under his command and there is clear

finding against him.

13. Dealing with the issue of the attachment of the

petitioner it is submitted that he was attached for

disciplinary proceedings only after finalization of Court of

Inquiry. Previously his attachment to the station HQ was

necessitated because the disbandment proceeding of EME

Cell was required to be completed by 31.03.1999. However,

the same was completed in Sept. 1999 when ultimately

petitioner moved on to new place of posting. The petitioner

and other unit personnel were allowed for administrative

purpose to stay at Station HQ Belgaum. The attachment

order of petitioner for taking disciplinary action against him

was issued by Army HQ on 31.1.2000 after finalization of

COI and pursuant to the direction of the competent

authority for taking disciplinary action against the

petitioner.

14. About the audit of auction proceedings and there

being no objection to it, reliance has been made to the

averments made in para 3(iv) and 3(v) of the counter

affidavit (supra). As to how the petitioner manipulated the

Board proceedings a letter was written to the Unit of the

petitioner by the Presiding Officer of the Board, copy of

which is already annexed as Annexure R-1. The said letter is

also being reproduced for the sake of reference.

―Telephone Military:422517/5227 Marath Light Infantry Regiment Kendar The Maratha Light Infantry Regimental Centre Belgaum - 590 009 PPRI/4842/Gen 31st March, 1999 EME CELL Belgaum-9

Convening Order : Disbandment of EME Cell, Belgaum

1. Ref Stn HQ Convening order NO. 152/G(PC) dt. 12th March,

99.

2. The bd proceedings were left with you at 1900 hrs on 30th March, 99 for me to enable fairing out the draft observations and also to discuss these with other members the next day.

3. However it is obs that your yourself or your staff have put your remarks as ―Nil‖ at para (m) & (h) and obtained the signatures of other members w/o appraising them about the observations and submitted the bd proceedings to Stn HQs directly.

4. The obsn as under are now sent herewith for your information and necessary action:

(a) It is obs that value of property auctioned and credited into Regt Fund Account (RV-21 dt 24th March, 99) in terms of SAO 26/S/73 is seemingly disproportionate to the actual value of stores that have been auctioned. Few examples are as under:-

S.No. Item Date of Purchase C. of Value

(i) Camera Niken F 18 Dec. 99 PV-99 Rs. 8300/-

(ii) Auto Stand 22 Jan.99 PV-117 Rs. 3462/-

(iii)Zoom Lons 21 Jan. 99 PV-113 Rs.11200/-

(iv) Carpet 16 Jan.99 PV-108 Rs. 9000/-

(b) A large No. of donations have been made the receipts of which were not shown to the presiding officers despite repeated requests.

5. The above is for your information and necessary action please.

Sd/-

(A.K.Singh) Major Presiding Officer‖

15. We have given our thoughtful consideration to the

rival submissions including written submissions filed by the

parties and have also gone through the provisions of the Act

as well as the rules framed there under.

16. 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 infraction of the

rules or the provisions of the Act are writ large during the

proceedings or when the punishment imposed is

excessively disproportionate and shocks the conscience of

this Court.

17. 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 dealth 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 the 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.‖

18. The record of this case also goes to show that 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 before the conclusion of

the proceedings of the GCM.

19. The reasoning given by the GCM in holding the

petitioner guilty of the charges levelled against him goes to

show, that the petitioner who was admittedly performing

the duties of Commanding Officer of EME workshop and

EME Cell Belgaum in March, 1999 and was in charge of the

auction which took place in respect of the regimental

properties manipulated the auction in such a way that he

was able to keep for himself items like Videocon, VHS TC EC

Colour, Steel almirah with glass and steel almirah plain

besides manipulating possession of Nikon Camera Zoom

lenses with camera stand, woolen carpet and cordless

telephone without putting them for auction and by paying

the money even less than the reserved price though

reflecting them in the list of the goods which were put for

auction on 16.3.99 and 24.3.99 respectively and in this

manner misappropriated the amount charged for. The

officers who were deputed for auction acted under his

instructions being his juniors. No wide publicity was given

to the auction. They have deposed against him before the

GCM and have supported their allegations. This proves the

dishonest intention of the petitioner in misappropriating the

aforesaid items. His defence, that the items were non-

serviceable was also found to be false in view of the time

when these goods were purchased.

20. At this juncture, it would also be appropriate to make

a reference to the reply filed by the petitioner to the

objections raised by Major A.K.Singh which goes to show,

that no specific reply has been given by him to the charges

leveled against him by the Chairman of the Auction Board

on 31st March, 1999 itself.

      Tele: 422517/5216                         EME Cell
                                                Belgaum-59009
      10201/disband                             05th April, 1999

      Station HQs
      Belgaum-590009

      CONVENING       ORDER:    DISBANDMENT        OF   EME    CELL,
      BELGAUM

1. Kindly refer to Maj AK singh (Presiding Officer of the board) letter No PRI/4842/Gen Dated 31 Mar 99, addressed to EME Cell Belgaum and copy to your HQ.

2. Parawise comment on the letter under ref is submitted as follows for your info and necessary action please:-

a) Para2: the Presiding Officer of the board sent of his JCO Clk to EME Cell, Belgaum on 30 Mar 99 at about 1030h for checking of the accounts for final audit. In the evening at about 1630h, Presiding Officer alongwith the said JCo came to the unit and audited the Regimental and Public Fund accounts. He dd not give any draft observation but directed to put up the board proceedings which was complied with. The Presiding Officer signed the proceedings and the ledgers. He also confirmed to the undersigned that there was no obsn what so ever and everything was in order and then he left at about 1800 h.

(b) Para 3: This cell can not make any one to sign the board proceedings against their wishes. The Presiding Officer and the members of the board had signed it as nil as there was no obsn given by them. Proceedings were submitted to stn HQ with a copy to the Presiding Officer as per the procedure.

(c) Para 4: (a): Under the orders on the subject, the property of the disbanding unit was sold by constituting a board of offr and the sale proceed was credited to the regimental fund account.

(d) Para 4 (b) All the documents demanded were produced to the board. There is no question of not showing any receipt. Notwithstanding, all the donations were made through cheques/Demand Draft and everything is in black and white.

Sd/-

(Ravendra Kumar) Major Commanding Officer

21. The orders passed by the Appellate Authority shows

that all points raised by the petitioner about his attachment,

holding of court of enquiry, recording of summary of

evidence and constitution of General Court Martial including

appointment of a Judge Advocate have been dealt with but

they have not found any merit in his contentions. From the

order of attachment it is apparent that the attachment of

the petitioner had taken place only after court of inquiry

was recorded and a preliminary finding about the role of the

petitioner was available and it is thereafter the petitioner

was given an opportunity to cross-examine the witnesses

who deposed against him in compliance with Rule 180 of

the Rules. Explanation has also been furnished as to why a

junior person was appointed as a Judge Advocate in the

case of the petitioner because it has been specified that a

person either of the equivalent rank or his senior was not

available. An explanation is available in the order

convening the General Court Martial. Moreover any

irregularity in appointment of a Judge Advocate does not

vitiate the trial as provided under Rule 103 of the Rules,

which is reproduced hereunder:

―103 Invalidity in the appointment of judge- advocate.--

A court-martial shall not be invalid merely by reason of any invalidity in the appointment of the judge-advocate officiating thereat, in whatever manner appointed, if a fit person has been appointed and the subsequent approval of the Judge-Advocate General or Deputy Judge-Advocate General obtained, but this rule shall not relieve from responsibility the person who made the invalid appointment.‖

22. All the documents which were necessary for the

petitioner to prepare his defences were admittedly supplied.

Even though Col. A.K.Malhotra withdrew from the trial, the

petitioner who is an officer was allowed to be defended by a

civil counsel and therefore, it does not lie in the mouth of

the petitioner to say that he was undefended during the

holding of the general court martial. The charges against

the petitioner have been proved by the witnesses who

appeared before the General Court Martial and deposed

about the manner and method in which the auction of the

regiment was conducted by the petitioner. His plea, that

the auction was conducted by a three member board is of

no consequence because admittedly, the two members of

the Board were from his own unit and third one has taken

objection in writing. More over, they all were very junior

officer and could not have taken a different stand contrary

to the instructions of the petitioner about the manner of

holding auction. Their testimony is against the petitioner.

Even otherwise, it is not for us to re-appreciate the

evidence since we do not find any abrasion of the provisions

of the Act or the rules framed there under while holding the

trial. The post confirmation petition has been dismissed by

the Central Government by a detailed order which has dealt

with each and every point raised by the petitioner in his

appeal.

23. It may also be appropriate to take note of the reasons

given by the Central Government while rejecting the post

confirmation petition filed by the petitioner which reads as

under:

―6. AND WHEREAS, the Central Government after carefully considering the circumstances of the case and the evidence available on the record is of the view that the allegation of vindictiveness leveled by the petitioner are unfounded all the witnesses were from his unit and there is sufficient and reliable evidence on record in support of the charges. The point regarding invoking the provisions of Army Rule 180 improperly in respect of certain witnesses at the behest of Stn. HQ. Belgaum it is mentioned that the records of the case reveal that after completion of the Court of Inquiry (C of I) proceedings, it was observed that provisions of Army Rule 180 were not compelled with in respect of the petitioner vis-à-vis three witnesses. The proceedings of the C of I were thereafter referred back for doing the needful. Therefore, there was irregularity in invoking the provisions of Army Rule 180 Moreover, by invoking the provisions of Army

Rule 180 the petitioner got an opportunity to vindicate himself. Therefore, the point raised by the petitioner has no force. As regards the point that the hearing of charge was not conducted in accordance with the law and instruction on the subject and neither any witness was examined nor any opportunity was given to the petitioner to submit his defence, it is observed that as per the records that the hearing of charge was conducted strictly as per rules. The petitioner declined to produce any witness in his defence. Therefore, the point raised by him does not hold any water. As regards the point regarding issue hearing of charge and directions for recording of the Summary of Evidence by the OC Troops and not by the Commanding Officer of the petitioner it is pointed out that Col. C.D. Sawant, SM Deputy Commandant/OC Troops, Maratha LIRC, who conducted hearing of the charge, at the relevant time was officiating Commandant, Maratha LIRC. The powers of the Commanding Officer were vested in him and thus he was the competent authority to conduct hearing of the charge. As regards the point that the Summary of Evidence was not recorded in a fair and impartial manner it has been observed from the records that this allegation is unfounded. The Summary of Evidence was recorded in accordance with the rules. As regards the point that no hearing of charge for two charges under Army Act See 52(b) was conducted it has been revealed from the records that the tentative charge was framed under Army Act See 63 and after recording of evidence the charges were framed under Army Act See 52(b), which is permitted by the Army Rule 22(4). Contention of the petitioner is not legally tenable. As regards the point regarding the petitioner not having been released from custody during adjournment of the GCM it has been noticed that the petitioner remained in custody in accordance with the instructions on the subject and representations of the petitioner for release were duly considered by the competent authority. The defence counsel and the defending officer were given full access to the petitioner. Therefore, the point is devoid of any merit. As regards the point that the Judge Advocate and Presiding Officer were biased it is mentioned that the GCM Proceedings were conducted in accordance with the procedure laid down by law. The Court duly addressed to the issues raised by the petitioner. Advice given by the Judge Advocate were in conformity with the legal provisions. The findings

of the GCM are based solely on the evidence on record. The petitioner has not given any evidence in support of his allegations therefore, it appears to be figment of his imagination. As regards the point that the petitioner was not provided with defending officer of his choice perusal of the GCM proceedings reveal that the petitioner was duly defended by his defence counsel and a suitable defending officer. The issue, therefore, lacks merits and substance. As regards, the point that Photostat copies of the documents were admitted in evidence without production of the originals it has been noticed that original copies of the auction board proceedings were also produced before GCM. Contention of the petitioner is, therefore, contrary to the records of the case. As regards the point that incorrect and wrong procedure was followed for assessment of the block value/price of the articles it has been observed that the value of the articles was assessed after applying maximum permissible depreciation rates. Contention of the petitioner is not tenable. As regards the point that the GCM considered and relied upon evidence of the witnesses who were also convicted in the same case it may be stated that even a co-accused or accomplice is also not barred to depose the facts and conviction is not illegal if based upon the testimony of such a witness. In this case, other independent oral and documentary evidence duly corroborates evidence of the witnesses referred to by the petitioner. Therefore, the point is devoid of any merit.‖

24. A person like the petitioner who was officer

commanding is not expected to have indulged in activities

just to get petty benefits to his credit. However, when it is

so done, it becomes all the more necessary to award

maximum punishment as is available so as to set standards

in a disciplined force like the Army and no leniency can be

shown. We, therefore, do not consider that the punishment

imposed upon the petitioner as shockingly disproportionate

which may call for interference by us while exercising writ

jurisdiction more so when the punishment imposed is within

the parameters of Section 71 read with Section 73 of the

Act.