A Bench of Judges of the Supreme Court, Justice L. Nageswar Rao and Justice M. R. Shah passed Judgment, in the case of Civil Appeal No. 2448 of 2020 in Sanjay Marutirao Patil v UOI dismissed the Appeal filed by the Petitioner.
Facts of the case is that the Appellant joined the Indian Army as a Sepoy on 30.08.1990. In the year 1994-95, he was promoted as Naik. Thereafter, he became qualified for promotion to the post of Hawaldar. He was served with a charge sheet dated 3.8.1999 levelling three charges of misconduct. That the three charges were framed against the appellant under Section 63 of the Army Act, 1950 (hereinafter referred to as the 'Army Act'). With respect to the above charge sheet, the appellant was called upon to face a Summary Court Martial. The appellant pleaded guilty to each of the charges in writing. After considering his defence, the Summary Court Martial proceedings were completed/concluded and the appellant was awarded with the punishment of reduction in rank, vide order dated 7.8.1999.
Thereafter the appellant was served with a show cause notice dated 24.3.2000, by which the appellant was called upon to show cause as to why he should not be discharged from Army service under the provisions of Section 20 of the Army Act, read with Rule 17 of the Army Rules, 1954. That the appellant replied to the said show cause notice on 10.4.2000. He denied the allegations made therein. According to the department, though the appellant pleaded guilty to the three charges, he denied those charges in the reply to the show cause notice dated 24.3.2000 and therefore the same were fraudulent in nature. According to the department, upon such denial, a Court of Inquiry came to be held in January, 2001 to ascertain the facts revealed by the appellant in the notice. According to the department, thereafter again meeting of the Court of Inquiry was held. The appellant appeared as a witness. He was examined. The Court of Inquiry put to him such questions as it thought desirable for testing the truth or accuracy of the statement made by him in his reply and for eliciting the truth. According to the department, the report of the Court of Inquiry was submitted to the authority concerned.
According to the department, the Court of Inquiry gave the finding that the appellant has given false and misleading reply in his say as well as in his evidence before the Court of Inquiry. According to the department, the appellant was, therefore, issued a show cause notice on 17.4.2001 to show cause as to why he should not be discharged from the Army under Rule 13(3) item III(V) as his services were no longer required, being undesirable. That the appellant filed his reply to the said show cause notice on 14.6.2001. That thereafter the respondents terminated the appellant's services on 29.4.2002, in exercise of the powers under Section 20 of the Army Act, read with Rule 17 of the Army Rules.
Feeling aggrieved and dissatisfied with the order of termination dated
29.4.2002, the appellant preferred an appeal, which came to be rejected on
22.12.2003. That thereafter the appellant approached the High Court by way of
present writ petition challenging the order of dismissal of the appellant as
well as the order dismissing the appeal.
Before the High Court, it was the case on behalf of the appellant that once the
appellant faced the Summary Court Martial and the appellant was awarded the
punishment of reduction in rank, thereafter for the same charges, the appellant
could not have been dismissed from service in exercise of powers under Section
20 of the Army Act, read with Rule 17 of the Army Rules. It was the case on
behalf of the appellant that once the
Summary Court Martial awarded the punishment, thereafter to dismiss the
appellant by passing an administrative order under Section 20 of the Army Act,
read with Rule 17 of the Army Rules, would be double jeopardy, which is not
permissible. However, the High Court did not agree with the same and dismissed
the writ petition by observing that the administrative power under Section 20 of
the Army Act, read with Rule 17 of the Army Rules, is an independent power and
therefore the order of dismissal passed under Section 20 of the Army Act, read
with Rule 17 of the Army Rules, is not required to be interfered with.
Consequently, the High Court by the impugned judgment and order has dismissed
the said writ petition and has refused to interfere with the administrative
order dismissing the appellant from service, which was passed in exercise of the
powers under Section 20 of the Army Act, read with Rule 17 of the Army Rules.
Feeling aggrieved and dissatisfied with the impugned judgment and order passed
by the High Court, the appellant - original writ petitioner has preferred appeal
in Supreme Court.
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.
Now so far as the submission on behalf of the department that subsequently the
appellant was served with the show cause notice dated 17.04.2001 by which the
appellant was called upon to show cause as to why he should not be discharged
under Rule 13(3) item III(v) which was on the allegation that in reply dated
10.04.2000 to the show cause notice dated 24.03.2000, the appellant made a false
and misleading reply and thereafter the Court of Enquiry was conducted and
thereafter having found that the services of the appellant is no longer required
being undesirable and therefore the order of discharge has been passed after
following due procedure is concerned, it is required to be noted that the order
of dismissal which is the subject matter of the present appeal has not been
passed under Rule 13(3) item III(v). The order of dismissal in the present case
is specifically passed under Section 20 of the Army Act read with Rule 17 of the
Army Rules. Therefore, the justification of the order of dismissal which is the
subject matter of the present appeal on the aforesaid ground is not sustainable.
However, at the same time, and for the reasons stated above, order of dismissal
dated 29.04.2002 which was the subject matter before the High Court and even
before this Court which has been passed under Section 20 of the Army Act read
with Rule 17 of the Army Rules is just, proper, legal and valid and the same is
rightly not interfered by the High Court. We are in complete agreement with the
ultimate conclusion arrived at by the High Court in the impugned judgment and
order.