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2006 Supreme(All) 2514
[2006(7) ADJ 472 (DB)]
ALLAHABAD HIGH COURT
(Division Bench)
BEFORE : S. RAFAT ALAM AND SUDHIR AGARWAL, JJ.
CHIEF OF ARMY STAFF AND OTHERS .....Appellants
Versus
No. 133883630-K, Ex. Sep. Dvr (MT), M.Z.H. KHAN .....Respondent
(Special Appeal No. 43 of 2002, decided on 11th September, 2006)
Counsel :
K.C. Sinha, Asst. S.G. of India and Shishir Kumar, Addl. S.C., for the Appellants; Col. Ashok Kumar for the Respondent.
Headnote:Army Act, 1950—Sections 164(2), 56(a), 120, 3(i), 22 and 149—Army Rules, 1954—Rules 33(7), 34, 129, 28, 115 and 23—Constitution of India—Article 33—Court-Martial, against respondent-petitioner—Awarded punishment to suffer rigorous imprisonment for 3 months in Civil Jail, and dismissal from service—In writ petition filed by him, Single Judge set aside said punishment, and directed to provide all consequential benefits to him—Second appeal against—In order to justify Court-Martial proceedings, question was whether procedure prescribed, had been followed, or not—As provisions of Rules 33(7) and 34(1) were mandatory—And non-observance, thereof, amounts to denial of opportunity of defence to accused—Hence, it could not be said that same was a mere irregularity and was protected by Rule 149 of Rules—Hence, said Rule 149 has no application in such a case—Respondent-petitioner was not allowed by them to engage a defence lawyer—But “friend of accused” was thrust upon him by authorities—Therefore, proceedings in question were vitiated, on account of non-observance of Rules 33(7) and 34(1), having effect of denying reasonable opportunity of defence to petitioner-respondents, at that stage, no finding could be recorded with respect to that issue, i.e., about offence committed by him, and accusations made at relevant time, were false—That would depend upon evidence, produced by parties—And at that stage, that question was left open, to be considered and decided by authorities—Therefore, judgment of Single Judge was upheld—And impugned order was quashed—Hence, Special appeal dismissed. [Paras 14, 15, 22, 23, 38, 30 to 33]
Hon’ble Sudhir Agarwal, J.—The respondent-appellants have preferred this appeal against the judgment dated 29.8.2001 passed by the Honble Single Judge whereby the writ petition No. 29244 of 1999 of the petitioner-respondent has been allowed and setting aside the punishment order dated 16.9.1997 and appellate order dated 28.5.1999 the appellants are directed to provide all consequential benefits to the petitioner-respondent.
2. Brief facts giving rise to this case are that the petitioner-respondent was enrolled on 25.10.1980 and earmarked for Army Service corps. He remained posted at different places and on 15.3.1993 was posted to 680 Tk Tptr PI ASC, where the Officer Commanding was Lt. Col. P. Bhatnagar. On 6th August, 1994, when the petitioner was on Sentry Duty at main gate around 23.00 Hrs., a Civil Truck bearing registration No. MP-20 E 0043 entered garage entrance gate which was across the road diagonally opposite to the Main Entrance Gate. The petitioner-respondent becoming suspicious raised alarm and checked the vehicle whereupon found four empty barrels of Fuel, Oils & Lubricants (in short FOL) loaded in the vehicle and the driver was a civilian, who confessed that he used to come with empty barrels and go with filled barrels. The petitioner claims to have informed the higher authorities about this matter, but it appears that one Naib-Subedar Lal Singh came as Duty JCO and got the barrels filled whereafter the vehicle was permitted to go. The petitioner claimed that Lt. Col. P. Bhatnagar was involved in the aforesaid activities. However in order to harass the petitioner-respondent, he got departmental proceedings initiated. A Court of Inquiry was ordered against the petitioner and a tentative charge-sheet dated 5.9.1995 was issued which was typed in English language without appending a vernacular translation thereof as required under Para 8 (a) of Appendix III of Army Rules, 1954. Thereafter, under Rule 23 of the Army Rules, a charge-sheet dated 12.6.1997 was served upon the petitioner-respondent on 13.6.1997 and trial commenced on 14.6.1997. The petitioner requested the authorities to permit him defence through the assistance of civil lawyer in Summary Court Martial. The proceedings were adjourned and resumed on 15.9.1997 and concluded on 16.9.1997. Instead of permitting the petitioner to be represented through a Counsel of his choice, one Subedar Budhi Ballabh was permitted to appear as “Friend of Accused" though on the date fixed even he was not present and one Lt. Col. Mahendra Kumar Sharma is said to be present. In the Summary Court Martial, the petitioner was awarded following punishments :
(A) to suffer rigorous imprisonment for three months in civil jail;
(B) dismissal from service.
3. The petitioner preferred a statutory petition under Section 164(2) of Army Act, 1950. Since, the aforesaid petition remained undecided, the petitioner-respondent approached this Court in writ petition No. 37038 of 1998, which was finally disposed of on directing Chief of Army Staff to consider and dispose of the petitioner’s statutory petition within a period of two months from the date of communication of the order. Consequently, the Chief of the Army Staff passed final order on 28.5.1999 setting aside findings on charges Nos. 1 and 2 recorded against the petitioner on technical grounds, but holding that even thereafter, the remaining third charge was very grave in nature and sufficient to attract the punishment already awarded and, therefore, upheld the punishment. Aggrieved, the respondent approached this Court in writ petition which has been allowed by the judgment under appeal. The Hon’ble Single Judge has recorded briefly the following findings to arrive at the conclusion that the order impugned in the writ petition is vitiated in law :
(1) non-compliance of Rules 33(7) and 34 of the Army Rules;
(2) by denying assistance of civil lawyer, Rule 129 of the Army Rules has been violated;
(3) an offence under Section 56(a) of th
