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SANJAY MARUTHIRAO PATIL v. UNION OF INDIA, CIVIL APPEAL NO. 2448 OF 2010 – JANUARY 24, 2020

The bench comprising of Hon’ble Justice M.R. Shah and Hon’ble Justice L. Nageswara Rao pronounced the judgment.

The facts of the case are that the appellant, who was holding the post of a Hawaldar in the Indian army, was served with three charges of misconduct on 3.08.1999. Being summoned before a summary court-martial, the appellant pleaded guilty to each of those charges and was awarded with Reduction in Rank as punishment. Thereafter, the appellant was served with a show-cause notice dated 24.3.2000 by which he was called upon to show cause as to why he should not be discharged from the Army service under the provisions of section 20 of the army act read with rule 17 of the army rules, 1954. The appellant replying to the notice denied the above allegations though he pleaded guilty to all of them thus proving that those allegations were fraudulent in nature. Thereafter, the appellant was brought in as a witness in front of the Court of inquiry and was put forth with questions as it thought was essential for testing the truth or the accuracy of the statement. The test resulted in determining that the statements made by the appellant were false and misleading.  Further, the Appellant was issued another show-cause notice to show cause as to why he should not be discharged from the Army under Rule 13 (3) item 35 and thereafter the respondents terminated the appellant’s services in exercise of the powers under section 20 of the Army act, read with rule 17 of the Army rules

Thus, the appellant approached the High court by way of filing a writ petition challenging the order of dismissal of the appellant as well as the order dismissing the appeal

It was submitted by the learned advocate on behalf of the appellant that the high court had committed an error in dismissing the writ petition and not interfering with the termination order passed by the respondent. The learned Advocate for the appellant had contended that once the summary court-martial awarded the punishment, thereafter to dismiss the appellant by passing an under section 20 of the army act, read with rule 17 of the army rules, would be double jeopardy, which is not permissible.

It was submitted by the Appellants’ counsel that the issuance of a show-cause notice on 24.3.2000 against the appellant, despite the fact that a sentence/punishment had already been awarded by the summary court trial made the issuance itself bad in law and illegal.

After completion of the summary court-martial, when the appellant was awarded punishment by way of reduction in rank, the respondent no 3 had no jurisdiction to take any action and could not prove the same, in respect to the very same misconduct.

Additionally, respondent, no 3 must have filed a fresh charge sheet making specific allegations and providing a reasonable opportunity to the appellant to meet with those specific allegations which he had failed to do.

The learned advocate for the respondents submitted that the order passed by respondent no 3 was an administrative order and was passed in exercise of powers under section 20 of the army act, read with rule 17 of Army rules. It is to be taken into account, that they are independent powers available to respondent no 3. They are independent of the criminal proceedings and can run in parallel.

It is explicitly stated in rule 17 of the Army rules that no person shall be dismissed or removed unless he has been informed about the cause of action against him. Section 19 and 20 provides power to the central bank to terminate the services of the officer on misconduct. Officers here also refer to chief of army staff/ officers of any rank.

It was also contended that a mechanism to rectify an error committed by the court by way of revision under section 160 of the Army act, though not properly followed was possible. Thus recourse of section 20 of Army act read with rule 17 of Army rules is a step taken to prevent miscarriage of justice. It was also submitted by the respondent that there was no application of mind at the relevant time when the summary court-martial was held.

The court after going through the arguments of the appellant and the respondent in detail recognized the independent powers under section 20 of the Army act read with rule 17 of army rules. Thus the case of double jeopardy cannot be pleaded. The decision of the court in the case of Harjeet Sindhu Sandhu ( supra) is required to be referred to and considered.

It was also observed that once the finding and the sentence have been confirmed, the court-martial being a special tribunal dispensing military justice, it would not be permissible to exercise additionally the power conferred by section 19 read with rule 14 and to inflict a penalty thereunder if the court-martial has not chosen to inflict the same by way of punishment under section 71.the power to proceed under Section 19 read with Rule 14 (2) exists and remains available to be exercised

“As long as a final verdict of guilty or not guilty pronounced by a Court Martial and confirmed by the competent authority as to be effective is not available, the power to proceed under Section 19 read with Rule 14 or Section 20 read with Rule 17, as the case may be, exists and remains available to be exercised.  Therefore, in the facts and circumstances of the case and in the absence of any confirmation of the order passed by the Summary Court Martial by which he appellant was reduced to rank, the respondent no.3 herein was justified in exercising the power under Section 20 read with Rule.”

In the present case, the appellant was given an opportunity to express his contentions and was allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service thus abiding properly with the required procedure. It is evident from the above, that the proper procedure has been followed before dismissing the appellant from service in exercise of powers under section 20 of the Army Act.

The court, therefore, stated that the procedural requirements of section 20 of the Army Act read with rule 17 have been duly complied with. It was ultimately held that the justification of the order of dismissal which is the subject matter of the present appeal on the aforesaid ground is just, proper, legal, valid and sustainable. And the same is not interfered with by the high court.

Therefore, the writ petition filed by the appellant is dismissed

View/ Download the Judgment: SANJAY MARUTHIRAO PATIL v. UNION OF INDIA

–  Medhiyaa Ramesh

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