JUDGMENT

K. JAYACHANDRA REDDY, J.:—Counsel appearing in these two petitions both for the petitioners and the respondents submitted that many of the questions are common in these two petitions and they can be heard together and disposed of. We shall, however, first take up Writ Petition (Crl.) No. 4781/ 89 in which several questions including those that arise in the other petition are urged.

WRIT PETITION (CRL.) NO. 478 OF 1989

2. This writ petition is filed under Article 32 of the Constitution of India. The petitioner at the relevant time was a Major in the Indian Army. He was charge-sheeted and tried by the court-martial for certain offences and was found guilty and punishment of removal from service was ordered. The court-martial proceedings and the order of punishment are questioned on various grounds.

3. It is mainly contended that the inquiring officer was prejudiced and biased against the petitioner and mala fides are also alleged against him. The next submission is that the initiation of summary of evidence was irregular and illegal as the same was not in conformity with the Army Rules 22 to 25. The further submission is that the general court-martial proceedings were not conducted as per law and that no grounds were made out for court-martial. Another submission is that the punishment was awarded in an arbitrary manner and that there is no confirmation of sentence as per law.

4. To appreciate these submissions it becomes necessary to state few more facts and then refer to the relevant provisions of the Army Act and Rules.

5. The petitioner became a Commissioned Officer of the Army on 30th April, 1972. On 30th April, 1985 he joined 18 FD Regiment Dharandhera. It is stated that in May 1985 he was responsible for controlling the riots in Ahmedabad city while on internal security duty and was recommended for Sena Medal. On 10th September, 1988 there was a scuffle between the petitioner and another two officers. As per the charge-sheet the allegation is that the petitioner assaulted Captain S. K. Shukla and Captain S. S. Chadha and caused them minor injuries and they were treated in the Hospital at Meerut. A convening order of a Court of Inquiry was passed and a presiding officer and two members were nominated for investigating into the circumstances under which those two officers received injuries. It may be mentioned here that the petitioner also gave his own report about the incident stating that on 10th September, 1988 at about 22.45 hrs Captain Chadha and one Captain R. Gandhi trespassed into a single-officer quarter and they came in front of his room and started arguing with the petitioner in a humiliating manner and when he requested them to leave the place they did not do so and that resulted in a scuffle in the course of which the petitioners kurta got torn off and Captain Gandhi bit him on his left arm. However, the Court so constituted proceeded to enquire into the matter. The petitioner was also asked to furnish the list of defence witnesses, if any. The evidence of some of the witnesses was recorded the details of which could be adverted to at a later stage. After the conclusion of the enquiry, the Court of Inquiry made its recommendations resulting in Court-martial which found him guilty and the promulgation was made and as mentioned above the sentence was awarded and the same was confirmed.

6. At this juncture it becomes necessary to refer to the relevant provisions of the Army Act and the Rules. The Army Act came into force in the year 1950. Chapters VI and VII deal with the offences and punishments respectively and the corresponding Sections are from 34 to 89. Chapter X provides for convening of court-martial and its powers. The Sections are from 108 to 127. Chapter XI deals with procedure of Court-martial. The concerned Sections are from 128 to 158. Chapter XII deals with confirmation and revision of such sentences and the Sections are from 153 to 165. Under Section 191 rules are made by the Central Government.