IMPORTANT POINT
Power vested with Chief of Army Staff and conferred under Section 20 of Army Act is an independent power available and for which procedure under Rule 17 of Army Rules is required to be followed.

JUDGMENT

M.R. SHAH, J.

Feeling aggrieved and dissatisfied with the impugned judgment and order dated 31.01.2008 passed by the High Court of Judicature at Bombay in Writ Petition No. 423 of 2005, by which the High Court has dismissed the said writ petition preferred by the appellant herein and has refused to interfere with the order of dismissal passed by the respondent dated 29.04.2002, the original writ petitioner has preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

That the appellant herein – original writ petitioner (hereinafter referred to as the ‘Appellant’) joined the Indian Army as a Sepoy on 30.08.1990. In the year 1994­95, he was promoted as Naik. Thereafter, he became qualified for promotion to the post of Hawaldar. He was served with a charge sheet dated 3.8.1999 levelling three charges of misconduct. That the three charges were framed against the appellant under Section

63 of the Army Act, 1950 (hereinafter referred to as the ‘Army Act’). With respect to the above charge sheet, the appellant was called upon to face a Summary Court Martial. The appellant pleaded guilty to each of the charges in writing. After considering his defence, the Summary Court Martial proceedings were completed/concluded and the appellant was awarded with the punishment of reduction in rank, vide order dated 7.8.1999. That thereafter the appellant was served with a show cause notice dated 24.3.2000, by which the appellant was called upon to show cause as to why he should not be discharged from Army service under the provisions of Section 20 of the Army Act, read with Rule 17 of the Army Rules, 1954 (hereinafter referred to as the ‘ Army Rules’). That the appellant replied to the said show cause notice on 10.4.2000. He denied the allegations made therein. According to the department, though the appellant pleaded guilty to the three charges, he denied those charges in the reply to the show cause notice dated 24.3.2000 and therefore the same were fraudulent in nature. According to the department, upon such denial, a Court of Inquiry came to be held in January, 2001 to ascertain the facts revealed by the appellant in the notice. According to the department, thereafter again meeting of the Court of Inquiry was held. The appellant appeared as a witness. He was examined. The Court of Inquiry put to him such questions as it thought desirable for testing the truth or accuracy of the statement made by him in his reply and for eliciting the truth. According to the department, the report of the Court of Inquiry was submitted to the authority concerned. According to the department, the Court of Inquiry gave the finding that the appellant has given false and misleading reply in his say as well as in his evidence before the Court of Inquiry. According to the department, the appellant was, therefore, issued a show cause notice on 17.4.2001 to show cause as to why he should not be discharged from the Army under Rule 13(3) item III(V) as his services were no longer required, being undesirable. That the appellant filed his reply to the said show cause notice on 14.6.2001. That thereafter the respondents terminated the appellant’s services on 29.4.2002, in exercise of the powers under Section 20 of the Army Act, read with Rule 17 of the Army Rules.

2.1 Feeling aggrieved and dissatisfied with the order of termination dated 29.4.2002, the appellant preferred an appeal, which came to be rejected on 22.12.2003. That thereafter the appellant approached the High Court by way of present writ petition challenging the order of dismissal of the appellant as well as the order dismissing the appeal.

2.2 Before the High Court, it was the case on behalf of the appellant that once the appellant faced the Summary Court Martial and the appellant was awarded the punishment of reduction in rank, thereafter for the same charges, the appellant could not have been dismissed from service in exercise of powers under Section 20 of the Army