Service Law – Army Medical Corps – Respondent was charge-sheeted for: (i) extraneous consideration declaring an army recruit as ‘fit’ after previously declaring him ‘unfit’;
(ii) absenting himself without leave from 11.04.2004 to 19.04.2004; (iii) conduct of unbecoming of an officer and the character expected of his position – Upon conclusion of trial by General Court Martial and two of the three charges proven, he was dismissed from service – Armed Forces Tribunal upheld the findings of guilt – However, the High Court allowed the writ petition preferred by the respondent solely on the ground that an officer junior to the respondent has acted as Judge Advocate in GCM:
Held: Before the High Court, two different convening orders were produced – One by the appellant and the other one by the respondent – While the documents submitted by the appellant contained the reasons for appointing a junior as the Judge Advocate whereas in the convening order submitted by the respondent no such reason was mentioned – After comparing the documents, the High Court recorded a finding that the convening order Annexure R-I (produced by the appellant before the High Court) has been altered after the same was dispatched and received by the Headquarters Artillery Centre – The High Court specifically observed that once a document has been put in the course of transmission by the General Officer Commanding, Andhra Pradesh, Tamil Nadu, Karnataka and Kerala area, the same could not be changed/altered or modified except after recording that there was a mistake, which needs correction – Once dispatched by the officer signing the same, the communication of the document is complete and any alteration in the document is unauthorised – It is quite apparent that the reason for culling out exception as held permissible by this Court in Charanjit Singh Gill case, was not mentioned in the document while the same was dispatched by the issuing authority and supplied to the respondent – Subsequent mentioning of the reason in the other document, after putting signatures by the issuing authority, was unauthorised and impermissible, the High Court has correctly held that the convening order suffers from incurable defect as held by this Court in Charanjit Singh Gill case – The legal position is thus well settled in Charanjit Singh Gill case that non recording of reasons of appointment of an officer junior in rank as a Judge Advocate in the convening order invalidates the Court Martial proceedings – The High Court has not committed any error of law in holding so in the facts and circumstances of the case. [Paras 8, 9]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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