High CourtDivision Bench1989-10-27Appeal partly allowed; final orders as stated i...

Union of India and Ors. v. Naik Subedar Baleshwar Ram and Ors.

Case / Petition Number:Civil Appeal No. 778 of 1988

Neutral Citation:1989 Supp. 2 S.C.R.

Case Details & Bench

Court: High Court
Hon'ble Judges: Ranganath Misra
P.B. Sawant
K. Ramaswamy
Judgment Date: 1989-10-27
Court Decision / Holding: Appeal partly allowed. For respondent 1, the Court reversed the High Court and restored the General Court Martial order (though with consideration to time already served, so custody was not required). For respondents 2 and 3, the Court upheld the High Court’s reversal of the conviction, imprisonment, and dismissal, finding no proper Rule 22 inquiry and deeming the CO’s conclusion of no case against them reasonable. There shall be no order for costs.
Final Disposition: Appeal partly allowed; final orders as stated in court decision.

Parties to the Case

Appellants / Petitioners

Union of India and Ors.

Respondents

Naik Subedar Baleshwar Ram and Ors.

Legal Representation & Advocates

Counsels for Petitioners

• Anil Dev Singh
• P. Parmeshwaran

Counsels for Respondents

• A.K. Ganguli
• I.A. Ansari
• Ms. Mridula Ray

Case Synopsis & Summary

This case deals with three army personnel tried by a General Court Martial for theft of ration. After loading dry ration into a vehicle at Amaribari Supply Point, respondent No. 1 (in civil dress) directed the truck towards a remote track, where the vehicle stalled. Respondents 2 and 3 allegedly assisted in unloading ration; civilians reported the incident, and civil police forwarded it to military authorities. A Rule 22 inquiry under Army Rules 1954 was conducted, followed by a General Court Martial convicting all three and dismissing them from service. The Assam High Court set aside the conviction, imprisonment, and the dismissal, holding that the proceedings violated Rule 22. The Union of India challenged this in special leave, arguing that the inquiry and trial were proper and that there was no prejudice to the accused. The Supreme Court allowed the appeal in part. It held that for respondents 2 and 3 there was no Rule 22 inquiry and the Commanding Officer’s conclusion that there was no case against them was reasonable, sustaining the High Court’s view for them. For respondent 1, although the Rule 22 inquiry was framed as prejudicial to good order, the underlying facts were theft and the enquiry and trial were grounded in the same facts, causing no prejudice. The Court reversed the High Court for respondent 1 and restored the General Court Martial order (with time already served seen as adequate). The appeal is partly allowed with no costs."

Provisions of Law Cited

Army Act, 1950: Sections 52, 63Army Rules 1954: Rule 22

Submissions & Arguments

Contentions of Appellants / Petitioners

The Union of India contended that the Rule 22 inquiry and the subsequent General Court Martial proceedings were conducted in accordance with Army Rules. It argued that the factual basis of the Rule 22 inquiry overlapped with the charges of theft and that no prejudice arose from the description of the inquiry as prejudicial to good order and military discipline. It also contended that respondents 2 and 3 had no valid Rule 22 inquiry, and that the Commanding Officer’s conclusion of no case against them was reasonable. The Union urged that the High Court’s quashing of the conviction and dismissal for all three was erroneous and that respondent 1’s matter should be restored to the original GCM outcome.

Contentions of Respondents

The respondents argued that the mandatory provisions of Army Rules, particularly Rule 22, were violated in relation to all three, and that the proceedings before the General Court Martial were therefore invalid. They pressed that there was no Rule 22 inquiry for respondents 2 and 3, and that the trial and dismissal of all three were improper. They relied on the High Court’s reasoning and on precedent (Lt. Col. Prithi Pal Singh BedI) to support setting aside the conviction and dismissal.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Lt. Col. Prithi Pal Singh BedI v. Union of India & Ors.	[1982] 3 SCC 140	Distinguished	Cited by the High Court; the Supreme Court distinguishes this decision on the facts in the present case, particularly regarding mandatory compliance with Rule 22 for respondents 2 and 3.

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Extracted Judgment Text

Exact text extracted from official judgment records.

UNION OF INDIA AND ORS. _v._ NAIK SUBEDAR CLK(S) BALESHWAR RAM AND ORS. OCTOBER 27, 1989 [RANGANATH MISRA. P.B. SAWANT AND K. RAMASWAMY, JJ.] _Army Act,_ _1950:_ _Sections 52,_ _63._ _Army Rules 1954:_ _Rule 22._ _Dismissal pursuant to General Court Martial-Validity of._ _Non-compliance with Rule-Effect of._ The respondents faced trial for the charge of theft. After a General Court Martial, they were found guilty, convicted and sentenced. All the three respondents were dismissed from service. The respondents filed a writ petition in the High Court challenging the decision of the Court martial, and the order of the dismissal. The High Court set aside the order of conviction and pnnishment of imprisonment as also the order of dismissal from service by holding that the trial before the Conrt Martial General was in contravention of Rule 22 of the Army Rules, 1954. Hence this appeal by the Union oflndia. Allowing the appeal in part, this Court. HELD: I. It is a fact that the allegation at the stage of inquiry under Rule 22 was described as prejudicial to good order and military discipline but the basic facts said to constitute that allegation were nothing else than removal of the foodstuff which constituted the charge of theft. It is, therefore, clear that no prejudice has been caused to respondent I and the enquiry under Rule 22 and the trial before General Court Martial were over the self same facts. [21 H; _llA_ J 2. It is a fact that as against respondents 2 and 3 there was no inquiry under Rule 22. It is not disputed that the Commanding Officer of the Unit had stated before the General Court Martial that he did not find any case against respondents 2 and 3. The conclusion reached by' the Commanding Officer was reasonable. Therefore there is no justification to set aside the order of the High Court so far as respondents 2 and 3 are concerned. [2ID-E] 19 A B ## c D E F G H A 20 SUPREME COURTREPORTS [1989] Supp. 2 S.C.R. _Lt._ _Col. Prithi Pal Singh Bedi_ v. _Union of India_ _&_ _Ors.,_ [1982] 3 ### sec 140, referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 778 of 1988. B From the Judgment and Order dated 5.8.1987 of the Assam High Court in Civil Rule No. 372 of 1982. ### c Anil Dev Singh and P. Parmeshwaran for the Appellants. A.K. Ganguli, I.A. Ansari and Ms. Mridula Ray for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal is by special leave and. is directed against the judgment of the Division Bench of the High Court D of Guwahati setting aside the order of conviction and the punishment of imprisonment as also the order of dismissal from service inflicted on the three respondents following a finding of guilt by the General Court Martial. Naik Subedar Baleshwar Ram was a Junior Commissioned E Officer of Amaribari Supply Point in the far eastern sector and was in overall charge of the said supply point. Around 5.30 p.m. on June 19, 1980, he directed Driver Rattan Singh to park an army vehicle near the ration store for loading dry ration. Respondent Ramji with the help of one labour from civilian side loaded the dry ration in the vehicle, whereafter Baleshwar Ram directed the truck to be taken towards F Balipura. Respondent No. 1 sat in the front seat in civil dress while respondents 2 and 3 sat behind the body of the truck. By the time the vehicle reached Balipura, it had become dark and respondent No. 1 ordered the driver to take the vehicle towards Tezpur. When the vehicle reached the outskirts of village Eatavari, respondent No. l directed the driver to slow down and turn the vehicle towards the right and take G it off on a narrow kutcha track not leading to Tezpur. The driver of the vehicle was not prepared to take the vehicle on the kutcha road but upon respondent No. l's insistence the vehicle was so taken and on the kutcha track the vehicle bogged down mid-way and could not be taken further. In the meantime, some civilian persons gathered there. The respondents 2 and 3 got down and started unloading some ration until H they were prevented by the civilians present there. Respondent No. 2 U.0.1. _v._ NAIK SUBEDAR B. RAM (MISRA, J.( 21 slipped away from the place. The civilians being suspicious informed the civil police, who in turn handed over the matter _w_ m11nary police for investigation and necessary action. After due inqmry a disciplinary action was initiated and inquiry under Rule 22 of the Army Rules was undertaken. A General Court Martial followed where definite charges were given and ultimately on the basis of summary evidence available all the three persons were found guilty, convicted and sentenced. Order of dismissal from service followed. The decision of the Court Martial and the order of dismissal were challenged before the Guwahati High Court in a writ petition. The High Court found that as against respondents 2 and 3 there was no inquiry under Rule 22. The High Court relied upon the decision of this Court in _Lt. Col. Prithi Pal Singh Bediv. Union of India_ & _Ors.,_ [1982] 3 SCC 140 and held that the proceeding before the General Court Martial was in violation of the mandatory provisions of the Anny Rules. On that finding the High Court set aside the order of conviction and punishment of imprisonment as also the order of dismissal from **service.** A B ## c D # It is a fact that as against respondents 2 and 3 there was no inquiry under Rule 22. It is not disputed that the Commanding Officer of the Unit had stated before the General Court Martial that he did not find any case against respondents 2 and 3. The summary of evidence recorded in the General Court Martial has been made available to us E and we have read the same. The conclusion reached by the.Commanding Officer seems to us to be a reasonable one. We do not think there is any justification to set aside the order of the High Court so far as respondents 2 and 3 are concerned. So far as the case against respondent No. 1 goes there was an F inquiry under Rule 22. The point raised on behalf of respondent No. 1 in the High Court was different from the case made out by respondents 2 and 3. It had been pleaded that the inquiry under Rule 22 as against respondent No. 1 related to an offence which came under section 63 of the Army Act, namely, conduct prejudicial to good order and military discipline; while the charge he was called upon to face in the General G Court Martial was one of theft punishable under section 52(a) o(the Army Act. We have 'een the evidence recorded in the inquiry under Rule 22. It is a fact that the allegation at the stage of inquiry under Rule 22 was described as prejudicial to good order and military discipline but the basic facts said to constitute that allegation were nothing else than removal of the foodstuff which constituted that charge of H 22 SUPREME COURT REPORTS [1989) Supp. 2 S.C.R. A theft. It is, therefore, clear that no prejudice has been caused to respondent 1 and the inquiry under rule 22 and the trial before General Court Martial were over the self same facts. B #### c In these circumstances, we are inclined to sustain the judgment of the High Court in regard to respondents 2 and 3 but we would reverse the judgment in regard to respondent 1 and restore the order of the General Court Martial. Respondent No. 1 has already been dismissed from service. He has undergone more than 9 months of the punishment out of one year of imprisonment. There has been a gap of several years since he has been released from jail initially on bail and later on the basis of the judgment of the High Court. In these circumstances he need not be taken into custody for suffering the balance period of the sentence. The appeal is partly allowed. There shall be no order for costs. T.N.A. Appeal allowed.