Nov - High Court of Judicature at Allahabad

3 All] Naik R.K. Mahapatra V. Chief of Army Staff and others 1021
concerned has given adequate opportunity
of placing his defence in accordance with
rules and procedure provided, therefore, it
cannot be held that punishment awarded
is not correct and proper.
9. I have considered the submissions
made on behalf of parties. From the
record, it is clear that earlier petitioner has
been awarded four red ink entries under
various sections of the Army Act and he
was punished for the same and it was
incorporated in his service record.
(a) Army Act Section 40 (C) on 16 Oct
8914 days RI, by Lt.Col N.C.Dutta
(b) Army Act Section 39 (d) on 30 Mar
96- severe Reprimand by Lt.Col Surjit
Singh.
(c) Army Act Section 63 on 16 Sep 96-
Severe Reprimand by Col Kamal Mohey.
(d) Army Act Section 63 on 02 Apr 96-
Severe Reprimand by Col JS Dhillon.
(e) Army Act Section 30 (a) on 18 Mar
2000- Severe Reprimand by Major J.S.
Shekhawat.
10. Lastly, petitioner was awarded
Severe Reprimand under Section 39(A)
on 18th March, 2000. The argument
raised on behalf of petitioner to this effect
that if some punishment is to be awarded
to petitioner, there was no occasion for
initiating an administrative action against
petitioner Under Rule 13 (3)(iv) of the
Army Rules. It was incumbent on the part
of respondents to have an enquiry to hold
a trial for the purposes of initiations
action against petitioner. Rule 13 gives
the power to the Sub Area Commander
ordering discharge in the circumstances of
the case permit to give the person whose
discharge is contemplated, an opportunity
to show cause against the contemplated
discharge is to be given. From the perusal
of aforesaid rule, it is clear that power has
been conferred to army authorities to take
administrative action against a person
who is serving in the army. From the
record it is clear that petitioner was
habitual offender and earlier he was
punished four times under various section
of the army. The contention regarding that
no administrative action should have been
taken against petitioner as no Court
Martial has been held, therefore,
punishment is bad in law and cannot be
accepted in view of provision of Section
125 of the Act. It is the army authority to
choose the forum. Under the Army Act,
there are two modes of punishment which
can be awarded to a army person, one by
a Court Martial and another is
administrative action provided under
Army Act and procedure provided under
Rule 13 of the Rules. The decision citied
by learned counsel for petitioner is not
applicable to the present case as in
Chaukas Ram's Case (Supra), it was not a
case of red-ink entry. In the aforesaid
case, petitioner was involved in a crime
and has concealed the said fact. The other
two cases relied upon by learned counsel
for petitioners relates to the decision of
the statutory complaint. This Court in that
circumstances has directed the army
authorities to pass appropriate orders to
decide the statutory complaint. The
submission of the learned counsel for
petitioner to this effect that punishment
awarded to petitioner is very harsh. In my
opinion, case in hand is a case of military
personnel and discipline in the military
service has to be maintained for the
purposes and security of the country. In
the case of Vidya Prakash Vs. Union of
India reported in AIR 1988 Supreme
Court, 705, question raised before the
Apex Court was in order to withdrawing
red-ink entries and if a person is absent