IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW ...

IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI
OA No.242/2012
Ex Nk (Clk) Parimi Tulasi Rao .........Petitioner
Versus
Union of India & Ors. .......Respondents
For petitioner: Mr. Anil Srivastava and Amit Sachan, Advocates.
For respondents: Mr. J.S. Yadav, Advocate
CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S. DHILLON, MEMBER.
ORDER
04.07.2013
1. The petitioner by this petition has prayed that the show cause notice
and the dismissal order may be set aside and he be reinstated in service and
to impose exemplary compensation for illegal confinement under armed
guards for a period of about two years.
2. The petitioner was enrolled in the Army in the Corps of EME as a clerk
on 18.10.2001. After completing his military training he was posted to Military
College of Electronic and Mechanical Engineer, Secunderabad in December
2002 and continued in the same appointment till February 2007, when he was
posted to 971 AD Regt Workshop EME.
3. The petitioner was promoted to the rank of Naik on 01.01.2008. He
also attended the promotion cadre from Naik to Havildar. However, during this
promotion cadre, he was placed under arrest on 02.10.2009 and placed under
3 Armed Guards and was interrogated by the Army Intelligence Unit. On
07.10.2009, the petitioner was taken to Bihar Regimental Centre, Danapur
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under arrest escorted by 3 Armed Guards. He was interrogated by the Army
Intelligence, Intelligence Bureau and the Civil Police also.
4. A Court of Inquiry was convened on 06.11.2009 followed by Additional
Court of Inquiry on 24.05.2010, to investigate the circumstances under which
the petitioner came in contact with Shri Sudhanshu Sudhakar, an Ex Army
personnel. The petitioner was tried by the Summary Court Martial for three
charges viz., (i) Army Act Section 63 “knowingly establishing and maintaining
contact with anti national elements”, (ii) Army Act Section 63 “failing to report
it to superior officer” and (iii) Army Act Section 63 “acting as an agent in
enrolment racket”.
5. After conclusion of this Summary Court Martial, he was reduced to rank
and was awarded a rigorous imprisonment for three months in military
custody. On completion of his sentence he was released on 11.11.2011.
Thereafter, a show cause notice was issued to him to show cause why his
services should not be terminated. He replied to the said show cause notice
and after that he was dismissed from service on 06.06.2012. Aggrieved this
order, the petitioner has filed the present petition.
6. A reply has been filed by the respondents and respondents have
contested the matter and denied the allegations. It is submitted that petitioner
was never placed under arrest or under escort. It is also pointed out that he
was interrogated and a proper Court of Inquiry was conducted against him in
that he has admitted all the charges and was accordingly punished.
Thereafter, it was thought appropriate to initiate administrative action against
him and as such a show cause notice was given and his services were
terminated. A rejoinder was filed by the petitioner wherein it is stated that it is
nothing but enhancement of the punishment by dismissing him from service.
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7. We have heard the learned counsel for the parties and perused the
record.
8. Learned counsel for the petitioner submitted that as per the show
cause notice, it is clear that this is a case of enhancement of punishment and
not of administrative action. In this connection, learned counsel for the
petitioner invited our attention to the contents of para 4 of the show cause
notice in which it is mentioned that “punishment awarded is not
commensurate with the offences committed and retention of person with such
criminal bent of mind in service is not desirable and deserves to be terminated
from service”. In this connection, learned counsel for the respondents placed
reliance on the judgments given by the Hon’ble Supreme Court in the matter
of (1997) 7 SCC 622 Mansukhlal Vithaldas Chauhan Vs State of Gujarat
and (1989) 2 SCC 505 State of U.P. and others Vs Maharaja Dharmander
Prasad Singh and others and submitted that this show cause notice is
nothing but an influence of the extraneous considerations. We regret that both
the arguments advanced by the learned counsel for the petitioner cannot be
accepted.
9. As against this, learned counsel for the respondents has invited our
attention to the judgment of Hon’ble Supreme Court in (2001) 3 SCC 414
Union of India and others Vs Sunil Kumar Sarkar which is an identical
case to the case in hand. In the case of Union of India Vs Sunil Kumar
Sarkar (Supra), the three Judges Bench took a view that administrative
action, after court martial under Army Act and Rule 20 of CCS (CCA) Rules
would not amount to “double jeopardy”. Their Lordships clearly held that court
martial proceedings and disciplinary proceedings deal with different aspects
and they do not overlap each other. Similarly, in the case in hand, the
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petitioner was convicted by the court martial and he was sentenced and
thereafter an administrative action was initiated. In this connection, reference
may be made to para 11 which is reproduced as under:-
“Before concluding we must point out that during the course of
arguments, a doubt was raised as to the maintainability of the
concurrent proceedings initiated against the respondent by the
authorities. The respondent in this case has been punished for the
same misconduct both under the Army Act as also under the Central
Rules. Hence, a question arises whether this would tantamount to
“double jeopardy” and is in violation of Article 20 of the Constitution of
India. Having considered the arguments addressed in this behalf, we
are of the opinion that so far as the concurrent proceedings initiated by
the Organisation against the respondent both under the Army Act and
the Central Rules are concerned, they are unexceptionable. These two
proceedings operate in two different fields though the crime or the
misconduct might arise out of the same act. The court-martial
proceedings deal with the penal aspect of the misconduct while the
proceedings under the Central Rules deal with the disciplinary aspect
of the misconduct. The two proceedings do not overlap. As a matter of
fact, Notification No.SRO-329 dated 23.9.1960 issued under the
Central Rules and under sub sections (1) and (4) of Section 4 of the
Army Act makes this position clear. By this notification, the
punishments that could be meted out under the Central Rules have
been taken out of the purview of the court martial proceedings under
the Army Act. We further find support for this view of ours in the
judgment of this Court in R. Viswan V Union of India.”
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10. So far as administrative action resorted to by the respondents under
Section 20 read with Rule 17 is concerned, it is fully justified in the present
case looking to the misconduct of the incumbent.
11. The next point argued by the learned counsel for the petitioner is that
the Commandant has abdicated his power as he has not properly applied his
mind while issuing the show cause notice and in that connection he invited
our attention to (1997) 7 SCC 622 and (1989) 2 SCC 505. Both these cases
are distinguishable on the facts. In this case, the show cause notice was given
to the petitioner on two grounds, one is that the sentence is not
commensurate with the offence and the other ground is that it is not desirable
to retain this person with such criminal background and deserves to be
terminated from service. It is settled position of law that if an order which has
two reasons, one valid and another invalid, then the order can be sustained
on the basis of valid reason also. The first reason given in the show cause
that punishment awarded is not commensurate with the offences committed
may not be a valid reason but at the same time the show cause notice very
clearly stated that he is indulged in anti national activities and retention of
person with such criminal bent of mind in service is not desirable and
deserves to be terminated from service, is totally justifiable because in Army,
we cannot keep undesirable anti national elements who can spoil the
atmosphere there. The order was passed by the respondents on the basis of
this ground that his retention is not desirable because he has such criminal
bent of mind and more so, in the summary court martial proceedings, the
petitioner has not disputed all these allegations. He has also not put up any
evidence to show or counter these allegations in his court of inquiry.
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12. Consequently, we do not find any merit in the present petition. The
same is dismissed. No order as to costs.
New Delhi
Dated 04 th July , 2013
ns
(A.K. MATHUR)
CHAIRPERSON
(S.S. DHILLON)
MEMBER
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