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High Court Of Delhi
UNION OF INDIA - Appellant
Versus
MAJ.K.K.TANEJA - Respondent
L.P.A. 11 of 1988
Decided On : 11/14/1991
ARMY ACT - Dismissal from Service - Confirmation of Sentence - Competent Authority - Army Orders 1968, Para 471 - Section 154 - Warrant Empowering GOC-in-C 19 Infantory Division to Confirm Findings and Sentences of General Court Martial - Additional Evidence - Limitation for Filing Appeal - Condonation of Delay.
Fact of the Case:
Major K. K. Taneja, the respondent, was dismissed from service by a General Court Martial for using criminal force on a woman with the intention to outrage her modesty. The sentence was confirmed by the Competent Authority. The respondent challenged the dismissal on the ground that the order of dismissal was passed by an incompetent authority, as the officer who confirmed the sentence was not the GOC-in-C, as required by Army Orders 1968, Para 471 and Section 154 of the Army Act. The respondent also filed an application to lead additional evidence, a warrant empowering the GOC-in-C 19 Infantory Division to confirm the findings and sentences of the General Court Martial, which was not available on the court record. The appellant filed an application for condonation of delay in filing the appeal.
Finding of the Court:
The court dismissed the appeal as having been filed beyond limitation and also on merits. The court held that the appellant had failed to show due diligence in procuring the warrant and that the delay in filing the appeal was not properly explained. The court also held that the warrant could have been produced before the start of the arguments in the writ petition, but this was not done. The court further held that the appellant's conduct had been callous and that the court was justified in refusing permission to file documents by way of additional evidence.
Issues: 1. Whether the order of dismissal was passed by an incompetent authority? 2. Whether the appellant should be allowed to lead additional evidence? 3. Whether the delay in filing the appeal should be condoned?
Ratio Decidendi: 1. The court held that the order of dismissal was passed by an incompetent authority, as the officer who confirmed the sentence was not the GOC-in-C, as required by Army Orders 1968, Para 471 and Section 154 of the Army Act. 2. The court held that the appellant had failed to show due diligence in procuring the warrant and that the delay in filing the appeal was not properly explained. The court also held that the warrant could have been produced before the start of the arguments in the writ petition, but this was not done. The court further held that the appellant's conduct had been callous and that the court was justified in refusing permission to file documents by way of additional evidence. 3. The court held that the delay in filing the appeal could not be the cause of non-availability of the warrant and that there was no reason or justification to delay the filing of the appeal. The court also held that the explanation for the delay was obviously false, which disentitles the appellant to any indulgence.
Final Decision: The appeal was dismissed as having been filed beyond limitation and also on merits. The application for condonation of delay was also dismissed.
( 1 ) THE present Letters Patent Appeal by the Union ofindia is directed against the Judgment dated 2. 11. 87 of the Learned Single Judge,quashing the order of dismissal from service of Major K. . K. Taneja, the respondent herein, by the General Court Martial and confirmed by the Competentauthority under the Army Act.
( 2 ) ALONG with this appeal, the appellants filed an application (CM158/81) u/s 5 of the Limitation Act, for condonation of delay of 19 daysin filing the appeal. The appllants also moved another (CM 157/88) underorder 41 Rule 27 read with Section 151 Civil Procedure Code for permission to placeon record the relevant Gazette notification/warrant by way of additionalevidence.
( 3 ) BEFORE dealing with this appeal and the applications, it is relevantto keep in mind a few salient features of the respondents, case as disclosed inhis petition (CWP 1253/78 ). The respondent herein was appointed as aregular commissioned officer in the Indian Army in December, 1965. Thereafterin the year 1967, he was promoted to the rank of Lieutenant and in April 1969to the rank of acting Captain. In the year 1974, the respondent was working asacting Major. While working in that capacity, he was charged for an offenceu/s 69 of the Army Act, 1950 (hereinafter REFERRED TO to as the Act) on the allegation that on 7/05/1976, at about 2300 hrs, he used criminal force on Mrsyasl Pal Kaur, with the intention to outrage her modesty in a military specialtrain, which was moving from Gwalior to Delhi. After completing the formalities of investigation, a charge sheet was framed against the respondent and ageneral Court Martial was convened to enquire into that charge. The respondentpleaded not guilty to the charge. The General Court Martial on evidence foundthe respondent guilty of the charge and announced the sentence subject to confirmation as follows :-
" (A) to forefeit 5 years of service for the purpose of promotion;and (b) to be severely reprimanded. "
( 4 ) THIS order of sentence was sent to Major General Bhardwaj,general-Officer-Commanding, 19 Infantory Division for confirmation. The said officer by his order dated 17. 11. 76 directed the General Courtmartial to reassemble again for the purpose of reconsidering the sentenceawarded by it in the light of the observations made in the said order. Incompliance of this direction, the General Court Martial reassembled on 18thnovember, 1976 and revised the sentence as under :-
" (A) the court having attentively considered the observation of the confirming authority and the whole of the proceedings do now revoke the sentenceand now sentencing the accused IC-16741f,ex-Capt. Tanefa Kuldip Kumar. 21, Rajput attached 2nd Battalion, Jammu and Kashmir Rifles to be dismissedfrom service. "
( 5 ) THIS order of sentence was again sent to the Competent Authorityfor confirmation. The Chief of Army Staff confirmed in the sentence videorder dated 28. 1. 77. The respondent s petition under Section 164 of the Actwas considered and rejected by the Central Government on 27/04/1977.
( 6 ) THE respondent herein challenged the Court Martial proceedings onvarious grounds in his petition (CWP 1253/78) but during i he course of the hearing of his petition, great emphasis was laid on the ground that after the sentencewas passed by the Court Martial on 8. 3. 76, forefeiting 5 years service of the respondent herein for the purpose of promotion and a severe reprimand, the order ofsentence was sent for confirmation to Major General Bhardwaj, who was not thecompetent authority to either consider the revision petition or confirm thesentence passed by the General Court Martial. The subsequent revised sentencepassed by the General Court Martial on the basis of the observations made bymajor General Bhardwaj and its confirmation by the Competent Authoritywas thus illegal. In support of this submission, reliance was placed on para 471of the Regulations of the Army Act, 1962, which lays down the powers of theofficers who
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