The court held that the incident as reported was less real but more imaginary. Punishment, therefore, cannot be sustained.

Headnote:
ARMY ACT - COURT MARTIAL - SECTION 40(A), 39(A), 109, 164, 226, 227 - COURT HELD THAT THE INCIDENT AS REPORTED WAS LESS REAL BUT MORE IMAGINARY. PUNISHMENT, THEREFORE, CANNOT BE SUSTAINED.
Fact of the Case:

The petitioner, a Major in the Indian Army, was cashiered by a General Court Martial for using criminal force against a superior officer and remaining absent without permission. The petitioner challenged the order, arguing that the incident was concocted and the trial was ill-motivated and farcical.
Finding of the Court:

The court found that there was serious doubt about the incident as reported. The complainant had a motive to make a false complaint against the petitioner, and the evidence of the defense witnesses was more acceptable. The court also found that the petitioner was not properly informed about the cancellation of his leave.
Issues: 1. Whether the incident as reported was real or imaginary? 2. Whether the petitioner was properly informed about the cancellation of his leave?
Ratio Decidendi: The court held that the incident as reported was less real but more imaginary. The punishment, therefore, could not be sustained. The court also held that the petitioner was not properly informed about the cancellation of his leave.
Final Decision: The petition was allowed. The impugned order cashiering and subsequent confirmation were quashed and set aside. The court directed the respondents to reinstate the petitioner with consequential reliefs, continuity in service, and back wages.

JUDGMENT - A.A. DESAI, J.:---This petition under Article 226 of the Constitution questions the legality, propriety and bona fides of Order cashiering the petitioner, passed on 9-6-1988, by the General Court Martial, consituted under section 109, which has subsequently been confirmed by order dated 12th June, 1989, in pursuance of the provisions under section 164, of the Army Act.

2. The petitioner in 1971 entered the Defence Services as a Commissioned Officer. In 1983, he attained the rank of a Major and was posted at Panaji. The respondent No. 11 Lt. Col. Chug was the Commanding Officer. The complainant Major Sushil Kumar on 21-6-1985 was holding the charge of Accounts Officer. His complaint was that on that day at about 9.45 a.m. The petitioner entered in his chamber to collect some official cheques. There was an exchange of hot words between them. The petitioner then lifted the telephone instrument and gave a blow on the head of complainant, resulting in an injury with profuse bleeding.

In view of the incident leave already sanctioned to the petitioner was cancelled and he was informed accordingly. Despite this, he remained absent.

The petitioner was, therefore, tried by the General Court Martial for the offence under section 40(a) for having used criminal force against a superior officer and remaining absent without permission, an offence under section 39(a) of the Act. The prosecution to substantiate the charges has examined as many as 19 witnesses and 11 by the defence. The Court Martial held the petitioner guilty for both the offences and ordered cashiering.

3. The challenge put fourth by Shri Usegaonkar, the learned Counsel for the petitioner is that the entire incident as reported is concocted and out of vengeance. The trial was ill-motivated and farcical.

Shri Khandeaparkar, the learned Counsel appearing for the respondents gave a note of caution that in exercise of jurisdiction under Article 226, this Court is precluded to reappreciate the material on recored. In view of sub-clause (4) of Article 227 of the Constitution, the Court Martial not being subordinate, the High Court, cannot exercise the superintending jurisdiction. It is emphasised that in the Defence service discipline is a matter of paramount consideration and is required to be enforced in a very strict sense.

4. We do bear in mind the para-meters of our jurisdiction and also the sensitivity of the subject as involved. The judicial forums have shown considerable relunctance to interfere with domain of inter se discipline of the defence services as they are the custodian of security of nation.

At the Bar, it is reported the that authority under Court Martial is not obliged to record either reasonings or findings while imposing a severe punishment. Their prerogative is simply to declare the verdict. Accordingly the Court Martial has not recorded either reasonings or findings while imposing the impugned punishment. Even if the procedure for trial is not required to satisfy the test of Article 21 of the Constitution, the modality of imposing punishment is substantially disturbing. None has, thereby an opportunity, even to know as to how the authority has dealt the matter. Any procedure in a strict sense need not stand to the judicial test, but expected to be in consonance with a sense of fairness. At any rate, it must stand to the good conscience of a prudent man. Else the measures to enforce discipline would be prone to take shape of an instrument of oppression. It is more harmful than indiscipline. It would then defeat the enshrined purpose.

5. We are conscions of the limitation on our jurisdiction. However, while dealing with the questions as involved we cannot afford to obliterate fair-play and good conscience under guise of high and strict standard of discipline.

The Supreme Court recorded a striking note in a decision of (Lt. Col. Prithi Pal Singh Bedi v. Union of India and others)1, reported in A.I.R. 1982 S.C. 1413:---

"Persons subject to Army A

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Judicial Analysis