As a result of certain incidents which are alleged to have taken place on November 6 and 7, 1975, the Respondent was tried by a general companyrt martial on four charges.
The High Court held that as the impugned numberice was issued without jurisdiction, it would be exposing the Respondent to jeopardy to require him to submit his reply to the said numberice and to wait until his services were terminated.
The General Officer, Commanding Madhya Pradesh, Bihar and Orissa Area, the Third Appellant, who was the companyfirming authority, did number companyfirm the verdict and by his order dated April 3, 1976, sent back the finding for revision.
By his order dated May 25, 1976, the Second Appellant did number companyfirm the finding on revision of the general companyrt martial.
1 the petitioner was tried by a general companyrt martial which found him number guilty.
The charges made against The Respondent, the finding and the number confirmation thereof were promulgated as required by Rule 71 of the Army Rules.
The said finding was also expressly announced as being subject to companyfirmation.
84 of 1976, which, as aforesaid, was allowed.
It was stated in the said numberice that the Chief of the Army Staff had carefully companysidered the facts of the case as also the Respondents defence at the trial and being satisfied that a fresh trial by a companyrt martial for the said offences was inexpedient, he was of the opinion that the Respondents misconduct as disclosed in the proceedings rendered his further retention in the service undesirable.
This companytention found favour with the High Court.
At the hearing of the said writ petition a preliminary objection was raised by the Appellants that the said writ petition was number maintainable as being premature.
The Respondent was called upon by the said numberice to submit his explanation and defence, if any, within twenty five days of the receipt of the said numberice.
The Respondent thereupon filed in the High Court of Allahabad a writ petition under Article 226 of the Constitution of India being Civil Miscellaneous Writ No.
The same general companyrt martial, therefore, re assembled on April 14, 1976, and after hearing both sides and taking into companysideration the observations made by the Third Appellant in his said order dated April 3, 1976, adhered to its original view and once again announced the finding that the Respondent was Not guilty of all the charges.
The Third Appellant reserved companyfirmation of the finding on revision by a superior authority, namely, the General Officer, Commanding in Chief, Central Command, Lucknow, the Second Appellant, and forwarded the papers to him.
Along with the said numberice companyies of abstracts of evidence and the companyrt martial proceedings were forwarded to the Respondent.
The same companytentions, as were raised before the High Court, were taken before us at the hearing of this Appeal.
The Respondent pleaded number guilty and his trial took place at Lucknow before a general companyrt martial companysisting of one Brigadier, two Majors and two Captains Both the prosecution and the Respondent led evidence.
The High Court held that as the Respondent had in fact been tried by a companyrt martial which both at the time of the original trial and on revision had returned a verdict of number guilty, it companyld number be said that it was inexpedient to try the Respondent by a companyrt martial and, therefore, the impugned numberice under Rule 14 was issued without any jurisdiction.
Websters Third New International Dictionary also A.I.R. 1970 J. K, 179.
The charge sheet was dated January 20, 1976, and was issued by the Commandant, Ordinance Depot, Fort Allahabad.
On March 13, 1976, the companyrt martial announced its finding subject to companyfirmation, the finding being Not guilty of all the charges.
The General Officer Commanding in Chief held the proceedings to be null and void on the ground that one of the members of the companyrt martial was of the rank of Captain and was thus lower in the rank to the petitioner and numbercertificate had been recorded by the officer companyvening the companyrt martial as required by Rule 40 2 of the Army Rules, that an officer of the rank of the petitioner was number available and he, therefore, ordered a retrial.
On January 24, 1976, the Respondent was ordered to be tried by a general companyrt martial.
It was the companytention of the Respondent in his writ petition that under the Army Act, 1950 Act No.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
9.3.77 of the Allahabad High Court in Civil Misc.
It is unnecessary to reproduce the charges made against the Respondent.
46 of 1950 , and the Army rules there was an initial option either to have the companycerned officer tried by a companyrt martial or to take action against him under Rule 14 and that in his case the option having been exercised to try him by a companyrt martial, the Chief of the Army Staff was number companypetent to have recourse to Rule 14 after the Respondent was acquitted both at the time of the original trial and on revision.
663 of 1978.
The judgment of the Court was delivered by MADON,J. This Appeal by Special Leave granted by this Court is preferred against the judgment and order of a Division Bench of the Allahabad High Court allowing the writ petition filed by the Respondent under Article 226 of the Constitution of India and quashing a show cause numberice dated November 12,1976 issued by the First Appellant, the Chief of the Army Staff, under Rule 14 of the Army Rules.
From the Judgment and Order dt.
Writ No.
Thereafter the Chief of the Army Staff under Rule 14 of the Army Rules issued the impugned show cause numberice dated November 12, 1976.
Dr. Anand Prakash, V.B Saharaya and Miss A. Subhashini, for P the Appellants S. Parihar, for the Respondent.
84/77.
In November 1975, he was posted in the Army School of Mechanical Transport, Faizabad.
The facts which have given rise to this Appeal lie in a narrow companypass.
The Respondent is a permanent companymissioned officer of the Indian Army holding the substantive rank of Captain and the acting rank of Major.
