Desai, J.:— This petition under Article 226 of the Constitution questions the legality, propriety and bona fides of Order cashiering the petitioner, passed on 9-6-1988, by the General Court Martial, constituted under section 109, which has subsequently been confirmed by Order dated 12th June, 1989, in pursuance of the provisions under section 164 of the Army Act.
2. The petitioner in 1971 entered the Defence services as a Commissioned Officer. In 1983, he attained the rank of a Major and was posted at Panaji. The Respondent No. 11 Lt. Col. Chug was the Commanding Officer. The complainant Major Sushil Kumar on 21-6-1985 was holding the charge of Accounts Officer. His complaint was that on that day at about 9-45 a.m the petitioner entered in his chamber to collect some official cheques. There was an exchange of hot words between them. The petitioner then lifted the telephone instrument and gave a blow on the head of complainant resulting in an injury with profuse bleeding.
3. In view of the incident leave already sanctioned to the petitioner was cancelled and he was informed accordingly. Despite this, he remained absent.
4. The petitioner was, therefore, tried by the General Court Martial for the offence under section 40(a) for having used criminal force against a superior officer and remaining absent without permission, an offence under section 39(a) of the Act. The prosecution to substantiate the charges has examined as many as 19 witnesses and 11 by the defence. The Court Martial held the petitioner guilty for both the offences and ordered cashiering.
5. The challenge put forth by Shri Usgaonkar, the learned Counsel for the petitioner is that the entire incident as reported is concocted and out of vengeance. The trial was ill-motivated and farcical.
6. Shri Khandeaparkar, the learned counsel appearing for the respondents gave a note of caution that in exercise of jurisdiction under Article 226, this Court is precluded to reappreciate the material on record. In view of sub-clause (4) of Article 227 of the Constitution, the Court Martial not being subordinate, the High Court, cannot exercise the superintending jurisdiction. It is emphasised that in the Defence service discipline is a matter of paramount consideration and is required to be enforced in a very strict sense.
7. We do bear in mind the parameters of our jurisdiction and also the sensitivity of the subject as involved. The judicial forums have shown considerable reluctance to interfere with domain of inter se discipline of the Defence services as they are the custodian of security of nation.
8. At the Bar, it is reported that the authority under Court Martial is not obliged to record either reasonings or findings while imposing a severe punishment. Their prerogative is simply to declare the verdict. Accordingly the Court Martial has not recorded either reasonings or findings while imposing the impugned punishment. Even if the procedure for trial is not required to satisfy the test of Article 21 of the Constitution, the modality of imposing punishment is substantially disturbing. None has, thereby an opportunity, even to know as to how the authority has dealt the matter. Any procedure in a strict sense need not stand to the judicial test, but expected to be in consonance with a sense of fairness. At any rate, it must stand to the good conscience of a prudent man. Else the measures to enforce discipline would be prone to take shape of an instrument of oppression. It is more harmful than indiscipline. It would then defeat the enshrined purpose.
9. We are conscious of the limitation on our jurisdiction. However, while dealing with the questions as involved we cannot afford to obliterate fair-play and good conscience under the guise of high and strict standard of discipline.
10. The Supreme Court recorded a striking note in a decision of Lt. Col. Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140 : AIR 1982 SC 1413:—
“Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty oriented Constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by an inquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the Criminal Court and the Court-martial is apt to generate dissatisfaction arising out of this differential treatment.
Absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment is a glaring lacuna in a country where a counterpart civilian convict can prefer appeal after appeal to hierarchy of Courts. Submission that full review of finding and/or sentence in confirmation proceeding under section 153 is provided for is poor solace. A hierarchy of Courts with appellate powers each having its own power of judicial review has of course been found to be counter productive but the converse is equally distressing in that there is not even a single judicial review. With the expanding horizons of fair play in action even in administrative decision, the universal declaration of human rights and retributive justice being relegated to the uncivilised days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil personnel. Army is always on alert for repelling external aggression and suppressing internal disorder so that the peace loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of this order. And it must be realised that an appeal from Ceasar to Ceasar's wife — confirmation proceeding under section 153 has been condemned as injudicious and merely a lip sympathy to form.”
11. The complainant and the petitioner at the relevant time were holding the rank of Major. As such, according to Shri Usgaonkar, the complainant cannot be held to be a superior officer as envisaged by section 40(a) of the Act. However, we do not find it necessary to deal with this question. There has been voluminous evidence. We are not inclined to make roving enquiry into allegations and counter allegations. The matter has, however, certain features with distinction. They create serious doubt about the incident as reported.
12. The complainant in a leave vacancy, officiated for some time as a Commanding Officer. The petitioner thereafter got the chance to officiate in the same post. He reported about the financial and other irregularities in rationing during the officiating period of the complainant was, therefore, subjected to the departmental enquiry. The petitioner averred in para 10 that this venture was not well received by the officers and he was warned by the respondent No. 11 Col. Chug. This has not been refuted by the respondents.
13. Shri Khandeaparkar tried to urge that in the enquiry the complainant has been exonerated. The complainant, therefore, could not have any bickering against the petitioner to make a false complaint. We are not on the aspect of truth or genuineness of the report of the petitioner. As vagaries of human mind, the probability of the complainant carrying vengeance against the petitioner did exist, as he had to suffer at the hands of petitioner.
14. The petitioner on 14th May, 1985, much before the incident, also reported to the higher authority that the complainant and others are desperately making an endeavour to implicate the petitioner in a disciplinary action. This complainant was not only against Major Sushil Kumar but also against few more Officers. It is pertinent here to note that it includes the respondent No. 11 Lt. Col. Chugh. This aspect has a definite bearing while examining the probability of the incident as reported.
15. P.W 1 the complainant, P.W 2 H.B Prasad and P.W 3 Pillai speak about hearing of shouts of the complainant and witnessing the bleeding injury on his head. However, other witnesses, though present, did not endorse either hearing of shouts or witnessing the bleeding injury. Mr. Usgaonkar, the learned Counsel for the petitioner, by taking us through record made a submission that P.W 2 Prasad and P.W 3 Pillai were installed by the prosecution and they have not seen the incident as alleged. We may clarify that we do not propose to reappreciate the evidence. We are simply examining the probability of the incident.
16. The next significant aspect is that the defence witnesses, namely, DW 4 Venkatiah, DW 5 Basu, DW 6 Nair and DW 7 Mrs. Flori, have unanimously asserted of having seen the complainant himself inflicting injury on his head with the aid of telephone instrument.
17. Shri Khandeaparkar made an attempt to pursue us to ignore their testimony being civilian and not subject to the discipline under the Army Act. They according to the Counsel therefore, could afford to depose with a design to oblige the petitioner an official, at the station. The submission is prima facie unacceptable. It is also urged that on the date of incident DW 7 Mrs. Flori was not in the employment. The submission has successfully been repelled. This witness was very much present to take the charge.
18. We may mention that in the entire cross-examination of these witnesses nothing has been brought to discredit or to suggest that their version was tainted with motive. Moreover, taking note of the location of chamber of the complainant and the office to which these witnesses are attached, it was quite obvious for them to witness the affairs. From the map as produced before us, it was for these witnesses to see the incident, if any, at glance more conveniently than any other witnesses. We find that the evidence of these witnesses is more acceptable.
19. Furthermore, according to P.W Lt. Chugh, the injury sustained by the complainant was very trifle as reported to him by Doctor. This brings the story of the complainant of profuse bleeding under clout. If somebody hits a person with a telephone instrument, in that eventuality either it would result in a skull fracture or minimum bone deep injury. This fortifies the version of the defence witnesses, that the injury to the complainant was self inflicted.
20. Moreover, all the witnesses examined by the prosecution as well as defence are unanimous that when they heard the noise, the petitioner was standing in a normal condition near the door of the chamber and carrying a cheque in his hand. This is certainly reflective. If a man who was involved in an incident of assault on the officer, cannot afford to remain unpuzzled, unperturbed and normal as described. The petitioner at the first opportunity before the Commanding Officer Col. Chugh also refuted the incident.
21. We have repeatedly tried to ascertain as to whether after hearing any noise any of the officials who gathered there made a query either from the complainant or the petitioner as regard the happening. None of the witnesses have questioned any of them. This is quite unnatural.
22. Shri Khandeaparkar tried to explain that in the Military establishment the subordinate official neither interferes nor intervenes either in, a quarrel or an incident of assault between the superior officers. It is hard to convince. Even if a subordinate Officer may not intervene, it is quite natural for any one to question with a view to ascertain as to what has happened.
23. P.W 4 Major Bhargava, has deposed that injury to the complainant was just a cut injury. The Doctor stated to the witness that the complainant has reported that the petitioner hit him by throwing the instrument of telephone at him. This version is quite in deviation with the text of the complaint. It was never his claim. On the contrary, it was alleged that after hitting the complainant the petitioner banged that instrument on the table resulting in breaking of the glass.
24. The disturbing feature as reported at the bar is that the complaint of Major Sushil Kumar was not before the Court Martial. However it is presented before us during the course of hearing. We have carefully perused the same. We would like to mention as disclosed during the trial that the complainant after assault was reported to be horrified and was also in great mental agony. He was badly suffering from hypertension and high blood pressure. Doctor advised him to take rest for 24 hours. The complaint is said to have been written, after returning from the Hospital at 14.00 hours at his residence.
25. The handwriting in the complaint as it is apparent is very neat, clean and fluent. Entire text is very systematic and elaborate with minute details not only of the incident but also as to what transpired during the conversation. The mental fitness of the complainant under the situation to undertake such writings, is simply improbable.
26. According to Shri Khandeaparkar, the complainant being a military officer possesses the good handwriting. He has to make a complaint systematically. It might be so. However, in the conditions as reported to be prevailing, complete alertness and fitness of mind, can hardly be imagined. It is extremely difficult to accept that the complaint was drafted and presented as deposed.
27. Taking all these aspects as discussed, we find that the incident as reported was less real but more imaginary. Punishment, therefore, cannot be sustained.
28. As regards absence from the duty, there is no dispute that on 19-6-1985 leave to the petitioner was sanctioned with effect from 22nd June 1985. However, about 11.30 hours on 21-6-1985, it is claimed that Lt. Col. Martins orally informed the petitioner about the cancellation and despite this, he was not available after 14 hours on 21st June, 1985. According to the petitioner, he was to leave for Delhi. His tickets were arranged by the office. His duty hours on 21st June, 1985 were upto 2.00 p.m and as such he was not required to be in office thereafter. The intimation of Lt. Col. Martins is denied. Undisputedly, a written letter of cancellation according to the deposition was issued after 15.30 hours. The petitioner received the leave certificate at 14.20 hours on 21st June, 1985 from the office of Lt. Col. Martins. In view of these facts as established, it is difficult to accept that Lt. Col. Martins reached the office of the petitioner at 11.30 hours to inform him about the cancellation of leave.
29. Moreover, we have been pointed out certain documents. There are erasures. DW 12 the dealing official has specifically deposed that he was under a threat from Lt. Col. Chugh. It is pertinent to note that this officer specifically figured in the complaint of the petitioner dated 14-5-1985, expressing his apprehension against him. Similar was the version as regards the threat of DW 4 Venkatiah.
30. It is rightly urged that the letter of cancellation did not reach the petitioner and, therefore, he left for Delhi as scheduled. On getting the intimation, he immediately reported back. It is, therefore, not possible to accept that the petitioner remained absent despite the intimation of cancellation of leave. We, therefore, cannot uphold the impugned orders. In the result:
31. The petition is allowed. Rule made absolute. The impugned order cashiering and subsequent confirmation are hereby quashed and set aside. We direct the Respondents to reinstate the petitioner with consequential reliefs, continuity in service and back wages.
32. Shri Khandeaparkar orally prayed for leave to appeal to the Supreme Court of India. However, we do not find any ground. Hence, rejected.
33. Shri Khandeaparkar, the learned counsel for the respondents sought three months' time to implement our order. Time is granted. In the meanwhile the order of this Court is stayed. Shri Khandeaparkar also undertook not to intefere with the possession of the quarter of the petitioner.
Petition allowed.