Army Act, 1950 – s. 63 – Army Rules, 1954 – r. 17 – Termination from service – The appellant was charged u/s. 63 of the Act – Appellant pleaded guilty – The Summary Court Martial awarded the appellant with the punishment of reduction in rank – Thereafter, appellant was served with a show cause as to why he should not be discharged from Army Service under the provisions of s. 20 of the Army Act r/w. r. 17 of the Army Rules, 1954 – Appellant denied the allegations made therein – Consequent to which, Court of Inquiry was held and appellant was terminated – Aggrieved, the appellant filed appeal, which was dismissed – Appellant filed a writ petition before the High Court and the same was also dismissed – Before the Supreme Court, the appellant contended that he was punished twice by the respondents for the same offence, once the Summary Court Martial awarded the punishment, thereafter to dismiss the appellant u/s. 20 of the Army Act r/w. r. 17 of the Army Rules would be double jeopardy, which is not permissible – Held: There is nothing 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 u/s. 164 of the Army Act – Therefore, in the facts and circumstances of the case, the respondent no. 3 was justified in exercising the power u/s.20 r/w r. 17 – The only procedure which is required to be followed u/r. 17 of the Army Rules was, a person who is sought to be dismissed or removed from service was 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 service – In the present case, such an opportunity was given to the appellant, therefore, proper procedure was followed before dismissing the appellant from service – Insofar as double jeopardy is concerned, it is required to be noted that earlier the appellant was tried by the Summary Court u/s. 63 of the Army Act only – However, the particulars of charges disclosed that offences were fraudulent in nature – Thereafter, after giving an opportunity to the appellant as required u/r. 17, the order of dismissal was passed u/s. 20 of the Army Act r/w. r. 17 of the Rules and the said order was confirmed by the Chief of the Army Staff u/s. 164 of the Act – Therefore, the order of dismissal passed u/s. 20 and confirmation by the Chief of the Army cannot be said to be violative of the principle of double jeopardy.
Dismissing the appeal, the Court
HELD: 1. From the facts emerging from the record, it appears that earlier the appellant was subjected to Summary Court Martial. 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 Army Act, 1950. 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, 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, 1954. 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. Meaning thereby that only in a case where the final verdict of guilty or not guilty pronounced by 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 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. [Para 7][344-F; 345B-H; 346-A-B]
2. 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 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. [Para 8][346-C-G] Union of India and Others v. Harjeet Singh Sandhu (2001) 5 SCC 593 : [2001] 2 SCR 1127 - relied on.
State of Madhya Pradesh v. Hazari Lal (2008) 3 SCC 273 : [2008] 2 SCR 787; Chief of Army Staff v. Major Dharam Pal Kukrety (1985) 2 SCC 412 : [1985] 3 SCR 415 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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