[Army Act & Rules] Even If Charges Are Not Confirmed During Court-Martial Proceedings, Erring Officials Can Be Independently Proceeded Against: Rajasthan HC

Rajasthan High Court has recently held that if findings on a certain charge are not affirmed by the Confirming Authority after General Court-Martial (GCM) proceedings, the Chief of Army Staff and other officers are vested with the power to proceed independently against the erring personnel for termination of services.

“…This Court also observes that only the finding and sentence on second charge was confirmed, which attained finality, but on count of non-confirmation of the finding on the first charge not attaining the finality, the impugned action of the respondents is justified in law”, the single-judge bench of Dr. Justice Pushpendra Singh Bhati noted in the judgment.

The court observed that Section 20 of the Army Act, 1950 r/w Rule 17 of the Army Rules, 1954 is available to the concerned authorities to issue a show cause notice against erring personnel, before the termination of services, even though such official may have already been subjected to court-martial proceedings.

It said that this power can be exercised only in instances where the final verdict of 'Guilty' or 'Not Guilty' in GCM has not been approved by the 'Confirming Authority'.

“…In the present case, the Confirming Authority did not confirm the finding on the first charge and therefore, in absence of such confirmation, the respondents have rightly issued the impugned show cause notice under the aforesaid provisions of law”, the bench sitting at Jabalpur noted after referring to the precedents in Union Of India v. Harjeet Singh Sandhu, (2001) and Sanjay Marutirao Patil v. Union of India & Ors., (2020).

The court also found the alleged conduct of the army personnel who filed the petition to be serious since they were charged with the heinous offence of sexually assaulting a 3-year-old minor at Bikaner Military Station. Both of the accused personnel allegedly committed the said offence while they were discharging their duties as a driver and co-driver of a school bus at the station.

Background

After the General Court Martial proceedings, the writ petitioners were found 'Not Guilty' on the first charge under Section 69 of the Army Act, pertaining to sexual assault of children. However, the petitioners were held guilty as per Section 63 of the Act which mentions omissions prejudicial to good order and military discipline. When the verdict and sentence made under Rule 67 reached the Confirming Authority, the 'not guilty' finding on the first charge and the sentence awarded on the second charge were not accepted by it.

The Confirming Authority, by exercising its powers under Section 160 of the Act of 1950, demanded a revision by the GCM. After a fresh consideration, GCM enhanced the sentence on the second charge to 2 months and 29 days of rigorous imprisonment. However, the finding of 'Not Guilty' on the first charge remained intact in the aftermath of revision as well.

Upon the revisional order being sent for confirmation, the Confirming Authority only affirmed the sentence awarded for the second charge; it again refused to validate the verdict on the first charge, by exercising its powers under Rule 70 of the 1954 Rules. Later, the respondent authorities sent show cause notices seeking the explanation of the petitioners regarding the first charge, as a precursor to the termination of services.

Arguments & Court's Observations

Before the High Court, the petitioners' counsel, Advocate K.K Shah, contended that the impugned show cause notice is an act that subjects the petitioners to double jeopardy when the proceedings in the court martial have already been concluded. After revision, the confirming authority had no choice but to confirm the finding and sentence given by GCM, it was argued on behalf of the personnel.

The counsels appearing for the respondent authorities, Deputy Solicitor General Mukesh Rajpurohita/w Uttam Singh Rajpurohit, submitted that impugned show cause notices are part of an independent administrative action under the Section 20 (3) of the Act of 1950. When the confirming authority has refused to confirm a certain finding made by the GCM, it becomes invalid, submitted the counsels.

“This Court further observes that the Confirming Authority at the time of confirmation may once revise the finding and sentence and send the same for revision under Section 160 of the Act of 1950. This Court also observes that the finding and sentence cannot be held as valid unless it is confirmed by the Confirming Authority as per Section 153 of the Act of 1950”, the single judge bench underscored after analysing the arguments levelled by the counsels appearing for both sides.

Therefore, the court dismissed the writ petition preferred by army personnel since the show cause notices were issued within the confines of applicable laws, after proper enquiry and after conducting disciplinary proceedings in the desired manner.

Case Title: Gyan Bahadur Chhetri & Anr v. Union Of India Through Secretary, Ministry Of Defence & Ors.

Case No: S.B. Civil Writ Petition No. 4413/2017

Citation: 2024 LiveLaw (Raj) 19

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