WP (C) No. 2683/1995 nsk Page 1 of 21

Reportable

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ WP (C) No. 2683 of 1995

Reserved on : April 03, 2008

Pronounced on : May 30, 2008

Gurnam Singh IC – 28082 K . . . Petitioner

through : Major K. Ramesh, Advocate

VERSUS

Union of India & Ors. . . . Respondents

through : Mr. Sanjeev Sachdeva, Advocate

CORAM :-

THE HON‟BLE MR. JUSTICE A.K. SIKRI

THE HON‟BLE MR. JUSTICE J.M. MALIK

1. Whether Reporters of Local newspapers may be allowed

to see the Judgment?

2. To be referred to the Reporter or not?

3. Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

1. The petitioner was tried by a General Court Martial (GCM) on two

charges, which read as follows :-

“(a) An omission prejudicial to good order and military

discipline in that he on 03 July 1986 having collected

two official files No. 1209/Accounts (closed) and No.

1209/A/Current from Havildar Bahuguna improperly

failed to return the same to the custodian.

(b) Using criminal force to a person subject to the Army Act

being his subordinate in position in that he at Dehradun

on 16 Aug 1986 used criminal force to Late Major AS

Randhawa by throwing a chair on the said officer and

gave blows on his face.”

The petitioner was found guilty and sentenced „to be cashiered

from military service‟. The effect of this punishment is that not only

WP (C) No. 2683/1995 nsk Page 2 of 21

the petitioner lost his job, it deprived him of his pensionary benefits

as well. The petitioner preferred a statutory petition under Section

164 of the Army Act. The competent authority in the Ministry of

Defence, Govt. of India, though maintained the guilt and conviction

of the petitioner and thus rejected the statutory petition to this

extent, commuted the cashiering to dismissal from service vide order

dated 18.9.1990. Challenging these orders, the present petition is

filed. This is not the first petition by the petitioner and there is a

history of litigation. We proceed to take note thereof along with the

facts necessary for adjudication of this writ petition.

2. The petitioner was commissioned into the parachute regiment of the

Indian Army on 2.3.1968. He performed his duties from time to

time at different places and also earned promotion to higher ranks.

On 21.5.1985, the petitioner was posted to 127 Infantry Battalion

(TA) ECO as Company Commander of „H‟ Company. On 10.6.1985,

he was detailed to perform the duties of Second-in-Command and

Unit Accounts Officers through a Battalion Routine Order. During

this period, one Lt. Col. O.P. Sindhu was the Commanding Officer of

the unit, under whom the petitioner was serving. As per the

petitioner, the said Lt. Col. O.P. Sindhu was misappropriating and

committing other irregularities in relation to the Government money.

The petitioner in his capacity as Officiating Commanding Officer

observed that Lt. Col. O.P. Sindhu had verified receipt of 20,000 kgs.

of G.I. wire valued at Rs.3,06,000/- and had forwarded the bills for

WP (C) No. 2683/1995 nsk Page 3 of 21

making payment to the supplier, whereas no stores had been

received on ground in the Unit. The petitioner queried from the

Special Project Officer who was responsible for making the payment

and also from Lt. Col. O.P. Sindhu in this regard which resulted in

unpleasant exchange of words. Similarly, the petitioner made further

queries about three duplicate bills of G.I. wire. On 1.7.1986, the

petitioner submitted, in writing, his request for seeking an interview

with Major General K.L.K. Singh, who was the then Addl. Director

General, TA. The petitioner was granted audience on 3.7.1986 with

the said Major General and the petitioner took file Nos.

1209/Accounts and 1209/A from the office to substantiate the

allegations of misdeeds indulged in by Lt. Col. O.P. Sindhu and the

SPO. The said audience took place in the presence of Lt. Col. O.P.

Sindhu. Major General K.L.K. Singh (who later on became Lt.

General) advised the petitioner to put up a written complaint

through proper channel and the petitioner left the room after the

audience, leaving said two files containing damaging and conclusively

incriminating documents showing indulgence in and commission of

fraud on the part of Lt. Col. O.P. Sindhu. In consequence of the said

audience, the petitioner submitted a written complaint on 19.7.1986

and Staff Court of Inquiry was convened by HQ Sub Area on

24.7.1986 against Lt. Col. O.P. Sindhu.

3. However, subsequently on 1.5.1987, charge sheet was issued against

the petitioner leveling the aforesaid two charges. One charge

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pertains to missing of two files, which according to the petitioner

contained incriminating material against Lt. Col. O.P. Sindhu. The

defence of the petitioner was that he was falsely blamed for the

missing of two files which he had kept with the then Major General

K.L.K. Singh and, moreover, there could not have been any motive

on the part of the petitioner as the petitioner had, in fact, placed

reliance on the incriminating material contained in those files against

Lt. Col. O.P. Sindhu. According to the petitioner, those files were, in

fact, taken away by Lt. Col. O.P. Sindhu after the petitioner had left

the office of Lt. Gen. K.L.K. Singh. He also pleaded that utilizing his

influence as Commanding Officer, the said O.P. Sindhu obtained a

note from Havildar Clerk Bahuguna that these files had been taken

away by the petitioner.

The petitioner had denied the second charge as well and had

contended that he was falsely implicated. As aforesaid, the general

court martial found the petitioner guilty of both the charges and

cashiered him from service. The petitioner filed post-confirmation

appeal under Section 164(2) of the Army Act. During the pendency

of the said statutory petition, the petitioner received show-cause

notice dated 17/21.10.1988 asking him as to why his pension be not

forfeited. The petitioner submitted his interim reply requesting the

respondents to keep the matter pending till the statutory complaint

was decided. As the decision of this petition was getting delayed, he

even preferred WP (C) No. 11462/1989 in the Punjab & Haryana

High Court, which was disposed of vide order dated 8.9.1989

WP (C) No. 2683/1995 nsk Page 5 of 21

directing the respondents to decide the post-confirmation petition

within a period of four months. The petitioner filed another writ

petition bearing WP (C) No. 1053/1990 in the year 1990 in the High

Court of Punjab & Haryana which was dismissed as pre-mature,

inasmuch as, the statutory petition was still pending decision.

However, as the petition was not decided even after the lapse of

four months time granted by the High Court, the petitioner filed

Contempt Petition No. 439/1990 against the respondents on

25.9.1990. At this stage, the petitioner came to know that his post-

confirmation petition had been decided vide orders dated 18.9.1990

and the same was dismissed, though the punishment of cashiering

was commuted to one of dismissal from service. This rendered his

contempt petition infructuous.

4. The petitioner, in these circumstances, filed another writ petition

before the High Court of Punjab & Haryana against the show-cause

notice for forfeiture of pension as well as his trial and the award of

sentence of dismissal. This writ petition was, however, dismissed on

the ground that the said High Court had no territorial jurisdiction.

The petitioner filed yet another writ petition in the same High Court

for grant of pensionary benefits, in response to which he has now

been sanctioned 50% of the pension. That writ petition is still

pending in the High Court of Punjab & Haryana. Insofar as the

petition of the petitioner against the court martial as well as sentence

of dismissal is concerned, after the dismissal thereof by the Punjab &

WP (C) No. 2683/1995 nsk Page 6 of 21

Haryana High Court for want of jurisdiction, these orders are

challenged by means of the present petition.

5. This petition earlier came up for hearing and was allowed by a

Division Bench of this Court vide judgment dated 2.5.2003. The

Union of India, however, preferred SLP thereagainst, which was

granted and the SLP is converted into Civil Appeal No. 1883/2004.

It was finally heard and decided vide a detailed judgment dated

23.3.2004. The Supreme Court set aside the judgment of this Court

and remitted the matter back for reconsideration. We may state at

this stage that this Court, in its judgment dated 2.5.2003, set aside

the impugned order inter alia on the ground that there was violation

of Rule 37 of the Army Rules, 1954. The Apex Court, however, did

not agree with the said view taken by this Court and held that there

was no violation of Rule 37. It is also pointed out by the Supreme

Court that the petitioner herein did not raise any plea either under

Rule 44 or under Rule 51 alleging that the court martial was not

properly constituted. The petitioner herein had also not raised the

issue of violation of Rule 37 at the time of general court martial

proceedings. The concluding portion of the judgment of the Apex

Court, insofar as the question of violation of Rule 37 of the Army

Rules is concerned, is reproduced below :-

“In the instant case, the officiating General Officer

Commanding, Major General Raj Kumar Singh approved the

constitution of the court-martial and the officers were detailed

for the said purpose. The proceedings dated 7.5.1987 are

signed by Col. R.N. Singh and it is stated that it is by the order

of the Officer Commanding. Therefore, we find there was no

violation of sub-rule (3) of Rule 37. It is pertinent to note that

WP (C) No. 2683/1995 nsk Page 7 of 21

the respondent did not raise any plea either under Rule 44 or

under Rule 51 alleging that the court-martial was not properly

constituted. In order to ensure proper constitution of court-

martial, detailed procedure is laid down under the Army Rules.

Rule 41 says how the court-martial proceedings have to be

commenced. It is stated that on the court assembling, the

order convening the court shall be laid before it together with

the charge sheet and the summary of evidence and also the

ranks, names and corps of the officers appointed to serve on

the court and the court shall satisfy itself that it is legally

constituted. Rule 44 says that the order convening the court

and the names of the presiding officers shall be read over to

the accused and he shall be asked whether he has any objection

to being tried by any officer sitting on the court. If the accused

raises any objection, such objection shall be considered and

disposed of in accordance with the provisions of that section.

The accused is given opportunity to adduce evidence in

support of his objection and if his objection is sustained in

respect of any member, such member shall forthwith retire and

the presiding officer shall appoint any officer in waiting. Rule

51 says that the accused before pleading to a charge, may offer

a special plea to the general jurisdiction of the court, and if the

court finds that anything stated in such plea shows that the

court has no jurisdiction, it shall not proceed with the trial and

adjourn, but report it to the convening authority. The above

rules have been indicated to show that the delinquent officer

would get ample opportunity to point out that the order

convening the court-martial was defective.

Admittedly, the respondent did not raise any such

objection, much less the violation of Rule 37. The respondent

submitted that at the commencement of the court-martial he

was not aware of the alleged violation of Rule 37 and that

these facts came to his notice only later.

It is satisfactorily proved that sub-rules (1) and (3) of

Rule 37 have been fully complied with and the High Court

erred in finding that there is violation of Rule 37. Such finding

is without any factual foundation. We reverse that finding on

the question of non-compliance of Rule 37.”

6. In the aforesaid circumstances, the Supreme Court remanded the case

back for fresh consideration in the following manner :-

“In the impugned judgment, the High Court has made certain

passing references regarding the merits of the case, though such

matters were not dealt with in detail. It was also observed that

the punishment imposed on the respondent was totally

disproportionate. We do not express any opinion on other

contentions raised by the respondent in this case. We feel that

the matter requires to be re-considered by the High Court.

WP (C) No. 2683/1995 nsk Page 8 of 21

In the result, we set aside the judgment of the High

Court and remit the matter to be considered on all the points

urged by the respondent, except his plea regarding the

infraction of Rule 37 of the Army Rules, 1954…”

7. It is clear from the above that plea of the petitioner qua Rule 37

stands decided against him. Leaving that contention, we are to

decide other issues raised afresh in this petition. The grounds which

were raised by learned counsel for the petitioner, at the time of

hearing, impugning the court martial proceedings may be stated in a

summarized manner :-

(a) The averments contained in the first charge under Section 63

for non-returning the files does not reveal culpability or a

criminal liability inviting penal consequences. Section 63 being

a residuary section would invite strict interpretation for inviting

penal action and consequences. Besides the petitioner had no

interest, motive to keep these files as it was he who had

complained on the basis of these two files against his

Commanding Officer Lt. Col. O.P. Sindhu. This charge is also

belied from the evidence on record which clearly revealed that

the petitioner had left the files in the office. The submissions in

this regard made before this Court are noticed in the judgment

dated 2.5.2003. Even it was viewed by the DJAG that charge

in this regard ought to be preferred against Lt. Col. O.P.

Sindhu, Charge as it stands is vague and was incapable of being

defenced.

(b) Second charge preferred against the petitioner under Section 47

is totally wrong and misconceived and hence no conviction can

be sustained thereon. Section 47 punishes use of criminal force

against a person subject to the Act who is subordinate in rank

or position. As per the allegations the criminal force allegedly

used by the petitioner was against Major A.S. Randhawa. Since

WP (C) No. 2683/1995 nsk Page 9 of 21

the petitioner was having a rank of Major, the victim Major

A.S. Randhawa was not subordinate in rank. He was not

subordinate in position to the petitioner and there is evidence

in this regard placed on file. Rather Major A.S. RAndhawa was

senior to the petitioner having been commissioned in the year

1963 and had been promoted to the rank of Lt. Col. (Time

Scale) whereas the petitioner was commissioned in 1968 . With

effect from 7.7.1986, the petitioner was removed from the

post of Second-in-Command and the Unit Accounts Officer and

in his place Major A.S. Randhawa was detailed to perform the

duties of the Accounts Officer. The charge under Section 47 as

such could not be preferred and is misconceived. This is

substantiated by notes under Section 63 of the Army Act. In

addition to the same, this charge is not sustainable in view of

the fact that the same is not supported by the evidence on

record. The detailed discussion in this regard is contained in

the earlier judgment dated 2.5.2003 of this Court, which

clinches the issue in favour of the petitioner.

(c) Punishment awarded to the petitioner is strikingly harsh,

disproportionate to the gravity of the sentence. The evidence

reveals that the petitioner was in fact victim of the wrath of

Major A.S. Randhawa who was the aggressor. Secondly, the

files were misplaced by Lt. Col. O.P. Sindhu as he was only the

beneficiary and the petitioner had nothing to gain from the

loss. Rather the petitioner was interested in showing the files

to the authorities as he was complaining against Lt. Col. O.P.

Sindhu for action. Failing to return these files would not attract

such penal consequences as to result in dismissal of a Field

Officer who had served the nation with pride, dignity and had

complained against corruption. The sentence as such is

strikingly disproportionate and extremely harsh and in itself

would reveal infirmity requiring correction.

WP (C) No. 2683/1995 nsk Page 10 of 21

8. Learned counsel for the respondents refuted the aforesaid submissions

and submitted that there was no infraction of any Rules or provisions

of the Army Act. The court martial was properly convened; it held

the proceedings in accordance with law giving full opportunity to the

petitioner; there was no violation of principles of natural justice; the

findings of the general court martial were appropriate and proper on

the basis of material brought on record; this Court would not sit as

an Appellate Authority over the said findings and further that the

punishment was not disproportionate to the nature of charge.

Detailed submissions on this aspect shall be taken note of while

discussing the respective arguments.

9. As far as the first charge is concerned, which relates to the non-return

of files of the petitioner to the custodian, argument of Major

Ramesh, learned counsel for the petitioner, was that there could not

have been any motive on the part of the petitioner to do so. This

argument flows from the submission that the petitioner had rather

made complaint against the Commanding Officer Lt. Col. O.P.

Sindhu wherein he had leveled allegations of corruption against the

said officer and in support of his version he had referred to those

two files. The intention of the petitioner if at all would be to ensure

that the files are not lost. On the other hand, it could be the motive

of Lt. Col. O.P. Sindhu, or any other office at his instance, to see that

the files are not available so that it becomes difficult to examine the

veracity of the complaint filed by the petitioner in the absence of

WP (C) No. 2683/1995 nsk Page 11 of 21

those files. There appears to be significant force in this submission of

learned counsel for the petitioner. The matter has not been

examined by the GCM from this angle at all. It was a very vital

aspect which should have been considered and discussed.

10. Learned counsel for the respondent had argued that the witness who

deposed in the said court martial proceedings clearly stated that he

had seen the petitioner taking away those files and, thus, there is

evidence which links the petitioner with those files and this Court

would not sit as an appellate authority over the findings of the GCM.

He may be right in pointing out the scope of judicial review in such

matters. However, if it is found that the findings are perverse and no

reasonable person could have arrived at those findings, the Court has

necessary jurisdiction to interfere. According to us, the present case is

of that nature. While coming to this conclusion, we discuss some of

the material evidence which has come on record and is totally

ignored. The same is as follows:

11. Major A.S. Randhawa had written letter dated 22.7.1986 in which he

stated that he had noticed the petitioner coming out of the meeting

with Lt. General K.L.K. Singh. He has further mentioned in this letter

that when the petitioner went inside, he was having certain

documents/files, but when he came out he did not see the petitioner

carrying any files in his hands. This letter is exhibited in the

proceedings as Appendix „DE‟ to Exhibit „GG‟ of the GCM

proceedings. We further find that after the two files went missing,

WP (C) No. 2683/1995 nsk Page 12 of 21

following noting was made by the respondent on the basis of

preliminary inquiries :-

“DJAG HQ Central Comd has appreciated the evidence for

prosecution in paras 4 to 15 of their letter at PUC. It has

formally been advised by the DJAG HQ Central Comd vide

para 17 of the Rat that prima-facie case exists against the

accused offr (Maj Gurnam Singh of 48 GL sec att the Jat Reg

Centre) with regard to using criminal force against PW-6 and

for his omission to return the account files taken by him. It

has, however, been mentioned that the charge on account of

omission to return the file will be weak as the only available

evidence to this effect is available from the statement of Lt.

Col. O.P. Sindhu who appears to be not of impeachable

character. If so, he should be held responsible for the loss of

life.”

12. The aforesaid note reflects upon the character of Lt. Col. O.P. Sindhu

and it is also recorded that Lt. Col. Sindhu should also be held

responsible for loss of file. In view of the aforesaid nothing, how

even the charge could be framed against the petitioner, and at the

same time supporting Lt. Col. Sindhu, defies commonsense. There

should have been some explanation on the part of the respondents

as to why ultimately it was decided to rope in the petitioner with the

said charge. In the counter affidavit filed by the respondents, it is

submitted that on the written complaint of the petitioner a Court of

Inquiry was convened by the Headquarter, Dehradun Sub-Area on

24.7.1986 against Lt. Col. O.P. Sindhu. It is also stated that on the

basis of the said Court of Inquiry, which was convened against Lt.

Col. O.P. Sindhu, Officiating GOC directed that action be taken

against the petitioner herein for not reporting the matter earlier and

for taking the files as well as for indulging in direct correspondence

with the contractors. However, it is further stated in the counter

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affidavit that the said recommendation was revised on 29.10.1986 as

follows :-

“I direct that administrative action be taken against IC-14764 Lt

Col OP Sindhu of 127 Inf Bn (TA) ECO for showing visible lack

in material management, viz. floating of tenders, receipt,

maintenance and issue of stores, maintenance of proper ledger,

for not utilizing 1700 kgs. of GI wire purchased on emergency

basis as per his own statement from fourth week of May 86 to

1

st

week of July 86 as well as for not utilizing 20 bags of

cement at all which were also purchased on emergent basis”.

“Lt Col OP Sindhu was conveyed displeasure of the GOC.”

Thereafter, why action was initiated against the petitioner

going contrary to the letter dated 22.7.1986 of Major A.S.

Randhawa and recommendation of GOC on 29.10.1986 is not

stated. No such satisfactory explanation is forthcoming, which

infuses further strength in the argument advanced by the petitioner

that insofar as he is concerned, there could not have been any

motive on his part in the loss of files. If at all, the interest of the

petitioner was that the files remain intact and are used as evidence

against Lt. Col. Sindhu. This is very important and clinching aspect of

the matter which cannot be lightly brushed aside or lost sight off.

According to us, it is sufficient to hold that there could not have been

any such charge against the petitioner and even if a charge is framed

against the petitioner, there is no convincing evidence, worth the

name, to link the petitioner with the said charge.

13. The second charge against the petitioner relates to using criminal

force against Late Major A.S. Randhawa by throwing a chair on the

said officer and giving blows on his face. For the alleged act, the

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petitioner is charged under Section 47 of the Army Act. Submission

of learned counsel for the petitioner is that the said section has no

application as Major Randhawa was not his subordinate, but was of

the same rank and in the same rank he was even senior to the

petitioner. To appreciate this contention, we first take note of the

provisions of Section 47. It makes the following reading :-

“47. Ill-treating a subordinate. – Any officer, junior

commissioned officer, warrant officer or non-commissioned

officer who uses criminal force to or otherwise ill-treats any

person subject to this Act, being his subordinate in rank or

position, shall, on conviction by court-martial, be liable to

suffer imprisonment for a term which may extend to seven

years or such less punishment as is in this Act mentioned.”

14. It is very clear from the language of this provision that the person

against whom criminal force is used or who is ill-treated has to be

subordinate in rank or position than the officer accused of such

conduct. According to the petitioner, Major Randhawa was

commissioned on 1.1.1963 whereas the petitioner was commissioned

on 2.3.1968; Major Randhawa was promoted to the rank of Lt.

Colonel (time-scale) and was, thus, senior to the petitioner.

15. Learned counsel for the respondent, on the other hand, submitted

that Section 47 uses the expression “rank or position” and, thus, the

officer who is victim of the criminal force or ill-treatment should be

subordinate in rank or position and not necessarily lower in rank.

Even if they are of same rank and the victim is lower in position,

namely, the junior, Section 47 would be applicable. In persuading

the Court to interpret Section 47 in the aforesaid manner, the

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learned counsel, in contradistinction, referred to the provisions of

Section 40 of the Army Act which deals with offences against

„superior officer‟, which reads as under :-

“40. Striking or threatening superior officers. – Any person

subject to this Act who commits any of the following offences,

that is to say. –

(a) uses criminal force to or assaults his superior

officer; or

(b) uses threatening language to such officer; or

(c) uses insubordinate language to such officer,

shall, on conviction by court-martial,

if, such officer is at the time in the execution of his office or, if

the offence is committed on active serve, be liable to suffer

imprisonment for a term which may extend to fourteen years or

such less punishment as is in this Act mentioned; and

in other cases, be liable to suffer imprisonment for a term

which may extend to ten years or such less punishment as is in this

Act mentioned;

Provided that in the case of an offence specified in clause (c), the

imprisonment shall not exceed five years.”

He submitted that whereas the expression „superior officer‟

occurs in Section 40, Section 47 uses the term „subordinate in rank or

position‟. According to the learned counsel for the respondents,

since the petitioner was senior to Major Randhawa, he would be

senior in „position‟ and charge under Section 47, therefore, could be

framed against him.

16. In order to show that the petitioner was superior in position than

Major Randhawa, submission of learned counsel for the respondent

was that the petitioner was holding a substantive rank of Major in

WP (C) No. 2683/1995 nsk Page 16 of 21

the regular Army, whereas Major Randhawa was an officer of

Territorial Army, even though he was also holding the substantive

rank. On this basis, relying upon para 36 of the Territorial Army

Regulations, 1948, it was sought to be projected that Major

Randhawa was junior in position. Para 36 of the said regulations

reads as under :-

“36. Seniority – Territorial Army Officers vis-à-vis Regular

Army Officer – Territorial Army Officers when serving with

officers of Regular Army will be junior to the Regular Army

Officers in the same rank except that a Territorial Army Officer

holding a substantive rank will be senior to a regular Army

Officer holding the same rank in an acting capacity.

Exception: In the case of a Rly Engrs Group (TA), its 21C will

be deemed to be senior than the Adm Officer of that unit.”

It was also submitted that the petitioner had raised this issue,

which was considered by the GCM and plea of the petitioner was

rejected.

17. Refuting these submissions, learned counsel for the petitioner argued

that the Army list maintains the Senior Roll of the officers in which

Major Randhawa is shown senior to the petitioner in service. It was

also argued that the GCM, while rejecting the plea of the petitioner,

did not consider or discuss any of the points sought to be raised by

the respondents now and, therefore, the decision of GCM on this

aspect was not correct and was a fatal impropriety per se in view of

Rule 62 of the Army Rules and Section 139 of the Army Act. He also

placed reliance upon the judgment of this Court in Lt. Col. R.S.

Bhagat v. Union of India, AIR 1982 Delhi 191.

WP (C) No. 2683/1995 nsk Page 17 of 21

18. We are of the opinion that the rank of both the officers was same.

Since Major Randhawa was senior to the petitioner, prima facie, he

cannot be treated as a person inferior in „position‟. However, it is

not necessary to record a conclusive finding on this aspect as we are

of the opinion that because of this, no prejudice is caused to the

petitioner and in the absence of prejudice, finding of the GCM

cannot be quashed on this ground. Discussion in this respect is

contained in the succeeding paragraphs.

19. Even when we proceed on the basis that Major Randhawa was in

superior position than the petitioner, we are of the view that no

prejudice is caused to the petitioner by proceeding against him under

Section 47 of the Army Act. The allegations of charge were very

clear and the petitioner was not only made aware of the charges but

knew fully well as to what he had to defend. If Major Randhawa

was to be treated as higher in position, the petitioner could have

been charged under Section 40 of the Army Act, punishment

whereunder is much more severe than the one under Section 47 of

the Army Act. In any case, on same allegation charge could have

been framed under Section 63 of the Army Act as well. It is now

well established that mere nomenclature of the section under which a

person is charged would not be a ground to quash the proceedings

unless it is shown that it has resulted in some prejudice to the charged

officer. When that is not the case herein, the charge No.2 levelled

against the petitioner cannot be invalidated on this ground.

WP (C) No. 2683/1995 nsk Page 18 of 21

20. Next submission is that there was no sufficient evidence to prove the

charge and, in fact, as per the evidence, the allegations which are

shown to have been proved are different than the allegations for

which the petitioner was charged.

It was submitted that the allegation in the charge was that the

petitioner used criminal force to Major Randhawa by: (a) throwing a

chair on the said officer; and (b) giving blows on his face. Major K.

Ramesh, learned counsel for the petitioner, took pains to go through

the evidence led before the court of inquiry on the basis of which it

was submitted that Rifleman Mahabir Prasad had made a deposition

against the petitioner which was contradictory, inasmuch as, on the

one hand he stated that “the chair struck him on his turban and

forehead”, while in the same deposition later on he deposed that

“the witness now reiterates that the chair did not hit late Major AS

Randhawa on his head”. Learned counsel queried as to how could

the chair hit Major Randhawan on his forehead but not on his head.

He, thus, argued that in presentation of the case the Judge Advocate

was required to highlight even these points to the court in equal

magnitude thereby displaying transparency and honesty. He further

argued that most important witness in respect of this charge was Dr.

Lt.Col. P.S. Mehta (PW-6). His deposition was very categorical

where the wounds of Major Randhawa (under smell of liquor at

1000 hours) had been discussed as superficial vis-à-vis the petitioner.

He submitted that though the charge sheet states of throwing a chair

WP (C) No. 2683/1995 nsk Page 19 of 21

at the victim and also giving blows on his face, at the same time the

medical evidence talks of wounds on the left wrist and right knee,

which are opined as could be “due to fall also”. There is no injury

at all on his face, whereas the petitioner has contusion over the left

cheek bone, which was very prominent as in red and blue marks

under the left eye. Therefore, according to learned counsel for the

petitioner, it was the petitioner who in effect was the victim in this

case. Alternatively, at best, it was a case of “contributory negligence”

where Major Randhawa also used criminal force by hitting the

petitioner near the eye. This fact was not taken into consideration at

all, argued the learned counsel.

Learned counsel for the respondent, on the other hand,

submitted that there was sufficient evidence on record which proved

the charge against the petitioner of using criminal force.

21. We have gone through the court martial proceedings as well, which

were produced before us, in order to appreciate the rival

contentions. We may remind ourselves that the charge against the

petitioner is using criminal force by “throwing a chair on the said

officer and giving blows on his face”. Clearly the first component of

the charge is that the petitioner threw a chair on Major Randhawa.

Evidence to this effect has come on record. Whether this chair struck

on his turban and forehead or did not hit his head would, therefore,

be not very material. Thus, the alleged contradiction pointed out in

the testimony of Rifleman Mahabir Prasad would not be of much

WP (C) No. 2683/1995 nsk Page 20 of 21

consequence. There are other witnesses also who have testified the

said incident. Having said so, at the same time, we feel that it is clear

from the testimony of the doctor (PW-6) as well as medical evidence

that there are no injuries on the face of Major Randhawa.

Therefore, the component of charge where it is alleged that the

petitioner gave blows on the face of Major Randhawa is not

substantiated fully. Even if blows were given by the petitioner on

the face of Major Randhawa, it hardly had any impact. Coupled

with this, when we examine the opinion that injuries on the left wrist

and right knee could be due to a fall as well and further that even

the petitioner suffered injuries in the scuffle between him and Major

Randhawa, we are of the opinion that the petitioner could not have

been singled out with the said charge of using criminal force. It

appears that there was some fight between the two officers and both

used criminal force against each other. We are, therefore, of the

opinion that though charge No.2 is partially proved, in the light of

the aforesaid circumstances, it cannot be said that the charge proved

against the petitioner was of a very serious nature that it warranted

the severe punishment of cashiering from military service thereby

depriving him even of his pensionary benefits. There is all the more

reason to treat this punishment as harsh when charge No.2 is

knocked out inasmuch as punishment is given by the competent

authority keeping in view that both the charges were proved against

the petitioner. As we have held that charge No.1 is not proved and

charge No.2 is only partially proved and, above all, there are

WP (C) No. 2683/1995 nsk Page 21 of 21

mitigating circumstances, it would be necessary to remit the case back

to the competent authority to reconsider the quantum of punishment

imposed upon the petitioner keeping in view our aforesaid discussion

and observations in this judgment.

22. This writ petition is accordingly partially allowed. The impugned

judgment is set aside. Matter is remitted back to the competent

authority to decide the quantum of punishment afresh. We would

hope that the competent authority shall dispassionately and

objectively consider this aspect of the matter by giving fair treatment

so that there is a quietus to this litigation for all time to come. In the

facts and circumstances of this case, we leave the parties to bear their

respective costs.

(A.K. SIKRI)

JUDGE

(J.M. MALIK)

JUDGE

May 30, 2008

nsk