S.N. MUKHERJEE v. UNION OF INDIA

Citation: [1990] SUPP. 1 S.C.R. 44

Court: Supreme Court of India

Bench: SABYASACHI MUKHERJI, M.H. KANIA, K. JAGANNATHA SHETTY, K.N. SAIKIA, S.C. AGRAWAL

Case summary

This matter was considered by a Constitution Bench of this Court in Bhagat Raja case (supra) where also the order under challenge had been passed by the Central Government in exercise of t its revisional powers under Section 30 of the Mines and Minerals (Regulation and...

Judgment text

The Judgment of the Court was delivered by S. C. AGRAWAL, J. This appeal, by special leave, is directed against the order dated August 12, 1981, passed by the High Court of Delhi dismissing the writ petition filed by the appellant. In the writ petition the appellant had challenged the validity of the finding and the sentence recorded by the General Court Martial on November 29, 1978, the order dated May II, 1979, passed by the Chiefof Army Staff confirming the findings and the sentence recorded by the General Court Martial and the order dated May 6, 1980, passed by the Central Government dismissing the petition filed by the appellant under Section 164(2) of the Army Act, 1950 (hereinafter referred to as 'the Act'). The appellant held a permanent commission, as an officer, in the regular army and was holding the substantive rank of Captain. He was officiating as a Major. On December 27, 1974, the appellant took over as the Officer Commallding of 38 Coy.

ASC {Sup) Type 'A' attached to the Military Hospital, Jhansi. In August 1975, the appellant had gone to attend a training course and he returned in the first week of November 1975. In his absence Captain G. C. Chhabra was the officer commanding the unit of the appellant. Duri11g this period Captain Chhabra . submitted a Contingent Bill dated September 25, 1975 for Rs. 16,280 for winter liveries of the depot civilian chowkidars and sweepers. The said Contingent Bill was returned by the Controller of Defence Accounts (CDA) Meerut with certain objections. Thereupon the appellant submitted a fresh Contingent Bill dated December 25, 1975 for a sum of Rs. 7,029. 57. In view of the difference in the amounts mentioned in the two Contingent Bills, the CDA reported the matter to the headquarters for investigation and a Court of Enquiry blamed the appellant for certain lapses. The said report of the Court of Enquiry was considered by the General Officer Commandipg, M. P.

, Bihar and Orissa Area, who, on January 7, 1977 recommended that 'severe displeasure' (to be recorded) of the General Officer Commanding-in-Chief of the Central Command be awarded to the appellant. The General Officer Commanding-in-Chief, Central Command did not agree with the said opinion and by order dated August 26, 1977, directed that disciplinary actio11 be taken against the appellant for the lapses. In view of the aforesaid order passed by the General Officer Commanding-in-Chief, Central Command, a charge sheet dated July 20, 1978, containing three charges was served on the appellant and it was directed that he be tried by General Court Martial. The first charge was in respect of the offence under Section 52(f) of the Act, i. e. doing a thing with intent to defraud, the second charge was alternative to the first charge and was in respect of offence under Section 63 of the Act, i. e.

committing an act prejudicial to good order and military discipline and the third charge was also in respect of offence under Section 63 of the Act. The appellant pleaded not guilty to the charges. The prosecution examined 22 witnesses to prove the charges. The General Court Martial, on November 29, 1978, found the appellant not guilty of the second charge but found him guilty of the first and the third charge and awarded t)le sentence of dismissal from service. The appellant s~bmit- S. N. MUKHERJEE v. U. O. l. [AGRAWAL, J. ] 49 tel) a petition dated December 18, 1978, to the Chief of Army Staff wherein he prayed that the findings and the sentence of the General Co11rt Martial be not confirmed. The findings and sentence of the GeJ)eral Court Martial were confirmed by the Chief of the Army Staff by his order dated May 11, 1979. The appellant, thereafter, submitted l) post-~onfirmation petition under Section 164(2) of the Act. T]!

e said petition of the appellant was rejected by the Central Government by order dated May 6, 1980. The appellant thereupon filed the writ petition in the High Court of Delhi. The said writ petition was dismised, in limine, by the High Court by order dated August 12,_1981. The appellant , e first charge and the court-martial, in holding the appellant guilty of the first charge, has acted upon it. It cannot, therefore, be said that there is nci evidence to establish the first charge levelled against the appellant and the findings recorded by the court-martial in respect of the said charge is based on no evidence or is perverse. The third charge, is that the appellant having come to know that Capt. Gian Chand Chhabra while officiating OC of his unit, improperly submitted wrong Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16,280 omitted to initiate action against Capt. Chhabra.

In his summing up before the court-martial the judge-advocate referred to the CDA letter M/IV/191 dated November 20, 1975 (Exh. 'CC') raising cert in objection with regard to Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16,280 and pointed out that the said letter was received in the unit on or about November 28, 1975 and bears the initials of the appellant with the aforesaid date and remark "Q Spk with details". This would show that the appellant had .... knowledge of the Contingent Bill on November 28, 1975. It is not the case of the appellant that he made any complaint against Captain S. N. MUKHERJEE v. U. 0. 1. (AGRAWAL, J. ] 75 Chhabra thereafter. It cannot, therefore, be said that the finding A recorded by the court-martial on the third charge is based on no evidence and is perverse. In the result we find ·no merit in this appeal and the same is accordingly dismissed. But in the circumstances there will be no order B as to costs. R. N. J. Appeal dismissed .