Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2448 OF 2010
Sanjay Marutirao Patil …Appellant
Versus
Union of India and others …Respondents
J U D G M E N T
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
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2020.01.24
16:49:30 IST
Reason:
appeal.
1
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
2
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
3
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 Act, read with Rule 17 of the Army
Rules. It was the case on behalf of the appellant that once the
Summary Court Martial awarded the punishment, thereafter to
4
dismiss the appellant by passing an administrative order under
Section 20 of the Army Act, read with Rule 17 of the Army Rules,
would be double jeopardy, which is not permissible. However, the
High Court did not agree with the same and dismissed the writ
petition by observing that the administrative power under Section
20 of the Army Act, read with Rule 17 of the Army Rules, is an
independent power and therefore the order of dismissal passed
under Section 20 of the Army Act, read with Rule 17 of the Army
Rules, is not required to be interfered with. Consequently, the
High Court by the impugned judgment and order has dismissed
the said writ petition and has refused to interfere with the
administrative order dismissing the appellant from service, which
was passed in exercise of the powers under Section 20 of the
Army Act, read with Rule 17 of the Army Rules.
3. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, the appellant –
original writ petitioner has preferred the present appeal.
4. Shri. Braj K. Mishra, learned Advocate appearing on behalf
of the appellant – original writ petitioner has vehemently
submitted that in the facts and circumstances of the case, the
5
High Court has committed a grave error in dismissing the writ
petition and not interfering with the termination order passed by
the respondentauthority dated 29.4.2002.
4.1 Shri. Braj K. Mishra, learned Advocate appearing on behalf
of the appellant – original writ petitioner has vehemently
submitted that the High Court has materially erred in not
appreciating the fact that the order passed by respondent no.3
thereby dismissing the appellant from service was actually illegal
and bad in law and would tantamount to double jeopardy.
4.2 It is submitted by the learned counsel appearing on behalf
of the appellant that the High Court has not properly appreciated
and considered the fact that the appellant for the one and the
same offence was sought to be punished twice by the
respondents. It is submitted that earlier the appellant was made
to face Summary Court Martial in respect of charges of
misconduct enumerated in the charge sheet dated 3.8.1999.
The appellant was found guilty of the same misconduct and on
7.8.1999 the Court Martial imposed the punishment of reduction
in rank under Section 71 of the Army Act. It is submitted that
the said proceedings concluded after the order of punishment
6
was given to the appellant. It is submitted therefore, after
passing the order of punishment passed by the Summary Court
Martial and the same had attained finality, thereafter it was not
open for respondent no.2 to reopen the matter and initiate any
further proceedings against the appellant on the same set of
charges.
4.3 It is submitted by the learned counsel appearing on behalf
of the appellant that in the present case despite there being a
sentence awarded by the Summary Court Martial, which was
after the conclusion of the proceedings of the Summary Court
Martial, the respondents issued a show cause notice dated
24.3.2000 alleging against the appellant that the particulars of
charges disclosed that the offence was fraudulent in nature. It is
submitted that therefore the show cause notice dated 24.3.2000
itself was illegal and bad in law.
4.4 It is vehemently submitted by the learned counsel appearing
on behalf of the appellant that after the conclusion of the
Summary Court Martial in which the appellant was given the
punishment of reduction in rank, thereafter respondent no.3 had
no jurisdiction to take any further action in respect of very same
7
misconduct of the appellant. It is submitted that if at all the
offences were said to be fraudulent in nature, it was open for
respondent no.3 to impose any punishment upon the appellant
at the time of conducting the Summary Court Martial itself. It is
submitted that, however, at the relevant time, respondent no.3
had taken a conscious decision to impose the punishment of
reduction in rank of the appellant. It is submitted that in that
view of the matter, thereafter respondent no.3 was not legally
entitled to reopen the matter and initiate fresh proceedings on
the same set of charges for which the appellant had already been
awarded sentence by way of reduction in rank. In support of his
above submissions, learned counsel appearing on behalf of the
appellant has taken us to the relevant provisions of the Act, more
particularly Sections 121, 161 and 162 of the Army Act.
4.5 It is further submitted by the learned counsel appearing on
behalf of the appellant that even the manner in which the Court
of Inquiry was subsequently conducted by the respondents is
also illegal and ab initio void . It is submitted that the appellant
had issued a show cause notice dated 24.3.2000 in which it was
alleged that the particulars of the charges mentioned in the show
8
cause notice disclosed that the offence is fraudulent in nature. It
is submitted that therefore it was necessary for respondent no.3
to conduct further investigation/enquiry if at all permissible in
law only in respect of allegations which were called fraudulent in
nature of charges mentioned in the show cause notice dated
3.8.1999. It is submitted that as such in view of the conclusion
of the Summary Court martial, the same was not permissible. It
is submitted that, however, according to respondent no.3, the
Court of Inquiry was conducted from the fresh facts allegedly
revealed in the reply on behalf of the appellant to the show cause
notice. It is submitted that by the show cause notice dated
24.3.2000, the appellant was called upon to submit his reply in
respect of alleged fraudulent nature of charges made against him
in charge sheet dated 3.8.1999. It is submitted therefore that as
a defence the appellant denied the charges by stating that the
same are not fraudulent nature of charges. It is submitted that
even otherwise, if at all respondent no. 3 was of the opinion that
the appellant had made false statements or given any false
information in his reply dated 10.4.2000 and for that purpose it
was necessary to proceed against the appellant under the Act
and the Rules made thereunder, then it was necessary for
9
respondent no.3 to come up with a fresh charge sheet making
specific allegations against the appellant with respect to specific
contents of the appellant’s reply to the show cause notice. It is
submitted that it was also necessary for respondent no.3 to give
an appropriate and reasonable opportunity to the appellant to
meet with those specific allegations in relation to the alleged false
statements made by the appellant in his reply to the show cause
notice. It is submitted that, however, admittedly neither such
fresh charge sheet was issued to the appellant nor any
opportunity was given to the appellant by firstly explaining to
him which of the statements and contents of his reply to the
show cause notice were false, misleading etc. It is submitted that
the appellant was also not called upon to submit his explanation
to the same. It is submitted that respondent no.3 straightway
proceeded to conduct the Court of Inquiry and came to the
conclusion that the appellant has committed the misconduct
while submitting his reply to the show cause notice and for such
misconduct, he is not authorised to retain in service or that
further retention of the appellant in service is considered
undesirable. It is submitted that therefore the entire proceedings
conducted by respondent no.3 are illegal, bad in law and without
10
jurisdiction and the same are also in breach of the Army Act and
the Rules made thereunder and therefore the same ought to have
been set aside by the High Court.
4.6 It is further submitted that the exercise of the
administrative powers by respondent no.3 under Section 20 of
the Army Act read with Rule 17 of the Army Rules after the
conclusion of the Summary Court Martial and award of sentence
under Section 71 of the Army Act for the very charge
sheet/grounds for which the Summary Court Martial was
conducted, is wholly illegal and without jurisdiction.
4.7 In support of his submissions, learned counsel
appearing on behalf of the appellant has relied upon a decision of
this Court in the case of State of Madhya Pradesh v. Hazari Lal
reported in (2008) 3 SCC 273.
4.8 Making the above submissions and relying upon the
above decision of this Court, it is prayed to allow the present
appeal.
5. The present appeal is vehemently opposed by Ms.
Sonia Mathur, learned Senior Advocate appearing on behalf of
the respondents. Learned Senior Advocate appearing on behalf of
11
the respondents has vehemently submitted that the order of
termination passed by respondent no.3, challenged before the
High Court, was an administrative order passed in exercise of
powers under Section 20 of the Army Act, read with Rule 17 of
the Army Rules. It is submitted that powers under Section 20 of
the Army Act, read with Rule 17 of the Army Rules are
independent powers available to respondent no.3. It is submitted
that therefore the contention on behalf of the appellant that a
subsequent administrative order of termination passed under
Section 20 of the Army Act read with Rule 17 of the Army Rules
is double jeopardy has no substance.
5.1 It is further submitted by the learned Senior Advocate
appearing on behalf of the respondents that proceedings under
Section 20 of the Army Act, read with Rule 17 of the Army Rules
are administrative in nature. It is submitted that the
administrative proceedings are independent of the criminal
proceedings and even both can run in parallel. It is submitted
that assuming that the proceedings under Section 20 of the Army
Act are criminal proceedings, still the offences tried for in the
Court Martial were different from those under Section 20 of the
12
Army Act and therefore there cannot be a case of double jeopardy
as the action taken under Section 20 of the Army Act cannot be
considered to be a “prosecution” under Article 20(2) of the
Constitution of India.
5.2 It is further submitted that in the present case the
impugned order of termination in exercise of powers under
Section 20 of the Army Act read with Rule 17 of the Army Rules
was passed after following due procedure as required, by passing
the order under Section 20 of the Army Act. It is submitted that
Section 20 of the Army Act provides that the Chief of Army Staff
or other officers may dismiss or remove from the service any
person subject to the Army Act, other than an officer. It is
submitted that the only procedure prescribed under the Army
Rules for dismissal under Rule 17 of the Army Rules is that no
person shall be dismissed or removed unless he has been
informed about the cause of action against him and allowed
reasonable time to state in writing any reasons he may have to
urge against his dismissal or removal from service.
5.3 It is submitted by the learned Senior Advocate appearing on
behalf of the respondents that as per the scheme of the Army Act,
13
Chapter 4 deals with conditions of service. It is submitted that in
the said Chapter, Section 18 provides the doctrine of pleasure of
President. Sections 19 & 20 further provides power of Central
Government to terminate the services of the officer on
misconduct and the power of Chief of Army Staff and other officer
to terminate the service of other ranks. It is submitted that in
Chapter 3 of the Rules, Rules 14 and 17 deal with the procedure
for the termination of service by the Central Government on
account of misconduct in respect of the officer and dismissal or
removal by Chief of Army Staff and by other officers in respect of
other ranks respectively.
5.4 It is submitted by the learned Senior Advocate appearing on
behalf of the respondents that in Rule 14 the phrase conviction
by Court Martial is not mentioned which is given in Rule 17 in
respect of other ranks. It is submitted that therefore the
Parliament has included the said phrase in Rule 17 because only
other ranks can be tried by Summary Court Martial which does
not require confirmation in terms of Section 153 of the Army Act.
It is submitted that in the absence of any power of confirmation
which is available in case of General Court Martial, Summary
14
Court Martial and District Court Martial, the Summary Court
Martial cannot be sent for revision once signed by the
Commanding Officer after the trial. It is submitted that in other
words the scheme of the Army Act and the Army Rules provide a
mechanism to rectify any error committed by Court Martial by
way of revision under Section 160 of the Army Act read with Rule
68 of the Army Rules, which is not available in the case of
Summary Court Martial. It is submitted that in order to avoid
miscarriage of justice, Parliament has empowered the competent
authority to take the recourse of Section 20 of the Army Act read
with Rule 17 of the Army Rules by providing power to dismiss the
individual after being convicted by Court Martial.
5.5 It is further submitted by the learned Senior Advocate
appearing on behalf of the respondents that in the present case
the charges framed against the accused (appellant herein –
original writ petitioner) were all under Section 63 of the Army Act
which were very serious which warranted trial by either General
Court Martial or District Court Martial. It is therefore submitted
that it was imperative on the part of the Commanding Officer to
refer the same for proper legal advice. It is further submitted
15
that there was no proper application of mind at the relevant time
when the Summary Court Martial was held and conducted and
the Commanding Officer dealt with the matter without any
proper application of mind. It is submitted that the case of
frauds needs to be dealt with appropriately and laxity of the
nature shown in this case defeated the ends of justice and the
wrong precedent was set for the prospective offenders. It is
submitted that therefore in order to ensure that the accused does
not escape from the natural consequences of his fraudulent acts,
recourse was therefore taken to terminate his services under
Section 20 of the Army Act read with Rule 17 of the Army Rules.
It is submitted that therefore the action of termination under
Section 20 of the Army Act read with Rule 17 is legally in order,
as Rule 17 provides for dismissal of a person convicted by a
Court Martial whose retention in service is not desirable.
5.6 Now so far as the submission on behalf of the appellant on
exercise of the powers by the Chief of Army Staff under Section
163 of the Army Act is concerned, learned Senior Advocate
appearing on behalf of the respondents has heavily relied upon
the decision of this Court in the case of Union of India and others
16
v. Harjeet Singh Sandhu reported in (2001) 5 SCC 593 . It is
submitted that in the aforesaid decision, this Court considered in
detail the entire scheme of the Army Act and the Rules with
respect to Summary Court Martial etc. and the powers of the
Commanding in Chief Staff under Section 20 of the Army Act
read with Rule 17 of the Army Rules, and the case of an officer
whose service is proposed to be terminated on the ground of
misconduct which has led to his conviction by a criminal Court.
It is submitted that in the aforesaid decision, this Court
recognised the independent powers under Section 20 of the Army
Act read with Rule 17 of the Army Rules. Relying upon the
aforesaid decision, it is vehemently submitted by the learned
Senior Advocate appearing on behalf of the respondents that the
proceedings under Section 20 of the Army Act are administrative
in nature and not on the same footing as that of a Court Martial
proceedings. It is further submitted that there cannot be a case of
double jeopardy as the action taken under Section 20 of the Army
Act cannot be considered to be a “prosecution” under Article
20(2) of the Constitution of India.
17
5.7 Learned Senior Advocate appearing on behalf of the
respondents has heavily relied upon the decision of this Court in
the case of Chief of Army Staff v. Major Dharam Pal Kukrety
reported in (1985) 2 SCC 412 in support of her submission that in
the present case the exercise of powers by the Chief of Army Staff
under Section 20 of the Army Act does not suffer from any
illegality.
5.8 It is further submitted by the learned Senior Advocate
appearing on behalf of the respondents that even otherwise on
merits also, the order of termination passed by respondent no.3
in exercise of powers under Section 20 of the Army Act read with
rule 17 of the Army Rules is not required to be interfered with.
5.9 It is submitted that in the present case the initial show
cause notice dated 24.3.2000 clearly set out that the conduct
which led to reduction in rank by the Summary Court Martial
was fraudulent in nature and therefore the appellant was called
upon to show cause as to why action under Section 20 of the
Army Act read with Rule 17 of the Army Rules be not taken. It is
submitted that in reply thereto, the appellant categorically stated
that he was not present in the unit till 29.2.1996. It is submitted
18
that the assertion of the appellant’s reply regarding his absence
was subject of a Court of Inquiry presided by a Colonel which
found the said statement to be incorrect and recommended
suitable disciplinary action. It is submitted that on the basis of
the opinion of the Court of Inquiry, the Brigade Commander
recommended disciplinary action for giving false and misleading
reply to the show cause notice. It is submitted that it was in the
above background a further independent show cause notice
dated 17.4.2001 was issued to the appellant to show cause as to
why he should not be discharged under Rule 13(3) item III(v) as
his services are no longer required, being undesirable. It is
submitted that power to discharge is under Section 22 of the
Army Act. It is submitted that the appellant has duly understood
the difference between the two show cause notices, namely, show
cause notice dated 24.3.2000 and the subsequent show cause
notice dated 17.4.2001 and replied accordingly on 14.6.2001. It
is submitted that the first show cause notice dated 24.3.2000
was issued under Rule 17 which provides for dismissal or
removal from service while the second show cause notice was for
discharge under Section 22 read with Rule 13. It is submitted
that both the show cause notices were issued in exercise of
19
distinct powers vested under the Army Act and the Army Rules.
It is submitted that eventually the order dated 29.4.2002 for
dismissal has been passed under Section 20 of the Army Act read
with Rule 17 of the Army Rules. It is submitted that therefore
the procedural requirements of Section 20 of the Army Act read
with Rule 17 have been duly complied with. It is submitted that
there is no contention regarding any noncompliance of any
procedural requirement. It is submitted that the only issue
raised was availability of the power to initiate administrative
action after the proceedings of Court Martial have attained
finality. It is submitted that thereafter having been satisfied that
in the larger interest the appellant cannot be continued in service
and therefore his services have rightly been terminated/he is
rightly dismissed from service under Section 20 of the Army Act
read with Rule 17 of the Army Rules.
5.10 Making the above submissions and relying upon the
aforesaid decisions of this Court, it is prayed to dismiss the
present appeal.
6. We have heard the learned counsel appearing for the
respective parties at length.
20
6.1 At the outset, it is required to be noted that in the present
case, the appellant has been dismissed from service by the
Commander, respondent no.3 herein, while exercising powers
under Section 20 of the Army Act read with Rule 17 of the Army
Rules.
6.2 It is the case on behalf of the appellant that as earlier he
was subjected to the Summary Court Martial for the very charges
of misconduct for which the order of dismissal has been passed
and earlier the Summary Court Martial passed an order of
reduction in rank, the subsequent order of dismissal passed by
respondent no.3 herein in exercise of powers under Section 20 of
the Army Act is bad in law and would be violative of the principle
of double jeopardy.
6.3 On the other hand, it is the case on behalf of the
department that power of dismissal under Section 20 of the Army
Act vested with the Chief of Army Staff and other officers is an
independent power and the two Sections, Section 20 and 71 of
the Army Act, are, therefore, mutually exclusive. While
considering the submission on behalf of the department that
power under Section 20 of the Army Act is an independent power
21
vested with the Chief of Army Staff and other officers, the
decision of this Court in the case of Harjeet Singh Sandhu (supra)
is required to be referred to and considered.
6.4 While considering the similar power of termination of service
by the Central Government under Section 19 of the Army Act, it
is observed and held by this Court that power under Section 19
(vested with the Central Government) is an independent power.
It is further observed and held by this Court in the aforesaid
decision that the Central Government or the Chief of the Army
Staff may arrive at a satisfaction that it is inexpedient or
impracticable to have the officer tried by a Court Martial, then
the Court Martial may not be convened and additionally, subject
to formation of the opinion as to undesirability of the officer for
further retention in the service, the power under Section 19 read
with Rule 14 may be exercised. It is further observed and held
that such a decision under Section 19 read with Rule 14 may be
taken either before convening the Court Martial or even after it
has been convened and commenced, subject to satisfaction as to
the trial by a Court Martial becoming inexpedient or
impracticable at which stage the Central Government or the Chief
22
of the Army Staff may revert back to Section 19 read with Rule
14. At the same time, it is further observed and held that there
shall be finality to the finding and sentence of Court Martial
subject to their being confirmed and not annulled. It is further
observed that questions of correctness, legality and propriety of
the order passed by any Court Martial and the regularity of any
proceedings to which the order of Court Martial relates can be
raised by way of petition under Section 164. It is further
observed that once the finding and the sentence, if any, 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. It is further observed that to permit such a course
would be violative of the principle of double jeopardy and would
also be subversive of the efficacy of the Court Martial
proceedings, finding and sentence. It is further observed and
held that so long as a final verdict of guilty or not guilty,
pronounced by a Court Martial and confirmed by the competent
authority so as to be effective is not available, the power to
23
proceed under Section 19 read with Rule 14(2) exists and
remains available to be exercised.
6.5 In light of the aforesaid observations and the law laid down
by this Court, the order of dismissal dismissing the appellant
from service which was passed by respondent no.3 herein in
exercise of power under Section 20 of the Army Act and its
legality is required to be considered.
7. From the facts emerging from the record, it appears that
earlier the appellant was subjected to Summary Court Martial on
the following lapses:
“(a) Not correctly preparing certified Receipt convoy note against
receipt convoy note 599 date 27 Feb. 1996.
(b) Not dispatching the consignments pertaining to OTG and
th
receipt Convoy Note on 29 Feb. 1996 and 02 March, 1996 and
instead dispatching consignments pertaining to receipt convoy
Notes of others.
(c) Furnishing false information to the court that buckets steel
Qty 3700 were not received in OTG contrary to the fact that Qty
268 packages of buckets steel were unloaded in OTG on 27 Feb.
1996.”
However, it is required to be noted that at the relevant time,
the aforesaid lapses/charges were not considered to be
fraudulent in nature and the appellant was tried by Summary
Court Martial for the said lapses/charges under Section 63 of the
24
Army Act. Thereafter, the appellant was inflicted with the penalty
of reduction in rank. Nothing is on record that the order passed
by the Summary Court Martial by which the appellant was
reduced in rank was even confirmed by the Chief of the Army
Staff in exercise of powers under Section 164 of the Army Act.
Therefore, it cannot be said that the order passed by the
Summary Court Martial by which the appellant was inflicted with
the penalty of reduction in rank attained finality on being
confirmed by the competent authority (in the present case the
Chief of the Army Staff). Therefore, considering the observations
made by this Court in paragraphs 24 to 27(more particularly,
paragraph 27) in the case of Harjeet Singh Sandhu (supra) , it was
open for the competent authority to exercise powers under
Section 20 of the Army Act read with Rule 17 of the Army Rules.
The power vested with the Chief of the Army Staff and conferred
under Section 20 of the Army Act is an independent power
available and for which the procedure under Rule 17 of the Army
Rules is required to be followed, however, subject to the
restrictions as observed by this Court in paragraph 27 in the case
of Harjeet Singh Sandhu (supra) . Meaning thereby that only in a
case where the final verdict of guilty or not guilty pronounced by
25
a Court Martial has been confirmed by the competent authority
and has attained finality, the power to proceed under Section 19
read with Rule 14 or Section 20 read with Rule 17 shall not be
available to be exercised. In other words, so 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
17. At this stage, it is required to be noted that while exercising
the power under Section 20 of the Army Act, the only procedure
which is required to be followed would be under rule 17 of the
Army Rules, namely, a person who is sought to be dismissed or
removed from service has been informed of the particulars of the
cause of action against him and allowed reasonable time to state
in writing any reasons he may have to urge against his dismissal
or removal from the service. In the present case, such an
26
opportunity has been given to the appellant and therefore the
proper procedure has been followed before dismissing the
appellant from service, in exercise of powers under Section 20 of
the Army Act.
8. Now so far as the submission on behalf of the appellant that
the order of dismissal passed under Section 20 of the Army Act
would be violative of the principle of double jeopardy is
concerned, for the reasons stated above, the same cannot be
accepted. There is one another reason also why the order of
dismissal under Section 20 of the Army Act cannot be said to be
violative of the principle of double jeopardy. It is required to be
noted that when earlier the appellant was treated by the
Summary Court Martial, he was tried for the offences under
Section 63 of the Army Act only. However, subsequently the
Chief of the Army Staff was of the opinion that the particulars of
charges for which earlier the appellant was tried by the Summary
Court Martial and which were tried under Section 63 of the Army
Act disclose that the offences were fraudulent in nature.
Therefore, while treating and considering the offences as
fraudulent in nature and thereafter after giving an opportunity to
27
the appellant as required under Rule 17 and thereafter having
been satisfied that the appellant cannot be continued in service,
the order of dismissal has been passed by respondent no.3 herein
in exercise of powers under Section 20 of the Army Act read with
Rule 17 of the Army Rules and the said order of dismissal has
been confirmed by the Chief of the Army Staff while exercising the
powers under Section 164 of the Army Act on a petition filed by
the appellant. Therefore, in the facts and circumstances of the
case, the order of dismissal passed under Section 20 of the Army
Act and confirmed by the Chief of the Army Staff cannot be said
to be violative of the principle of double jeopardy.
9. Now so far as the submission on behalf of the department
that subsequently the appellant was served with the show cause
notice dated 17.04.2001 by which the appellant was called upon
to show cause as to why he should not be discharged under Rule
13(3) item III(v) which was on the allegation that in reply dated
10.04.2000 to the show cause notice dated 24.03.2000, the
appellant made a false and misleading reply and thereafter the
Court of Enquiry was conducted and thereafter having found that
the services of the appellant is no longer required being
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undesirable and therefore the order of discharge has been passed
after following due procedure is concerned, it is required to be
noted that the order of dismissal which is the subject matter of
the present appeal has not been passed under Rule 13(3) item
III(v). The order of dismissal in the present case is specifically
passed under Section 20 of the Army Act read with Rule 17 of the
Army Rules. Therefore, the justification of the order of dismissal
which is the subject matter of the present appeal on the aforesaid
ground is not sustainable. However, at the same time, and for
the reasons stated above, order of dismissal dated 29.04.2002
which was the subject matter before the High Court and even
before this Court which has been passed under Section 20 of the
Army Act read with Rule 17 of the Army Rules is just, proper,
legal and valid and the same is rightly not interfered by the High
Court. We are in complete agreement with the ultimate
conclusion arrived at by the High Court in the impugned
judgment and order.
10. In view of the above and for the reasons stated above, the
present appeal fails and is liable to be dismissed and is
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accordingly dismissed. However, in the facts and circumstances
of the case, there shall be no order as to costs.
……………………………………J.
[L. NAGESWARA RAO]
NEW DELHI; ……………………………………J.
JANUARY 24, 2020. [M.R. SHAH]
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