Q: Comment the citation of Chief Of The Army Staff And Others vs Major Dharam Pal Kukrety on 21 March, 1985 ?

Ans:

Chief Of The Army Staff And Others vs Major Dharam Pal Kukrety on 21 March, 1985

The facts which have given rise to this Appeal lie in a narrow compass. The Respondent is a permanent commissioned officer of the Indian Army holding the substantive rank of Captain and the acting rank of Major. In November 1975, he was posted in the Army School of Mechanical Transport, Faizabad. 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 court-martial on four charges. It is unnecessary to reproduce the charges made against the Respondent. The charge-sheet was dated January 20, 1976, and was issued by the Commandant, Ordinance Depot, Fort Allahabad. On January 24, 1976, the Respondent was ordered to be tried by a general court-martial. The Respondent pleaded not guilty and his trial took place at Lucknow before a general court-martial consisting of one Brigadier, two Majors and two Captains. Both the prosecution and the Respondent led evidence. On March 13, 1976, the court-martial announced its finding subject to confirmation, the finding being "Not guilty of all the charges". The General Officer, Commanding Madhya Pradesh, Bihar and Orissa Area, the Third Appellant, who was the confirming authority, did not confirm the verdict and by his order dated April 3, 1976, sent back the finding for revision. The same general court-martial, therefore, re-assembled on April 14, 1976, and after hearing both sides and taking into consideration 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 said finding was also expressly announced as being subject to confirmation. The Third Appellant reserved confirmation 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. By his order dated May 25, 1976, the Second Appellant did not confirm the finding on revision of the general court martial. The charges made against the Respondent, the finding and the non- confirmation thereof were promulgated as required by Rule 71 of the Army Rules.

Thereafter the Chief of the Army Staff under Rule 14 of the Army Rules issued the impugned show cause notice dated November 12, 1976. It was stated in the said notice that the Chief of the Army Staff had carefully considered the facts of the case as also the Respondent's defence at the trial and being satisfied that a fresh trial by a court-martial for the said offences was inexpedient, he was of the opinion that the Respondent's misconduct as disclosed in the proceedings rendered his further retention in the service undesirable. The Respondent was called upon by the said notice to submit his explanation and defence, if any, within twenty-five days of the receipt of the said notice. Along with the said notice copies of abstracts of evidence and the court-martial proceedings were forwarded to the Respondent. The Respondent thereupon filed in the High Court of Allahabad a writ petition under Article 226 of the Constitution of India.

The High Court held that as the Respondent had in fact been tried by a court-martial which both at the time of the original trial and on revision had returned a verdict of 'not guilty', it could not be said that it was inexpedient to try the Respondent by a court-martial and, therefore, the impugned notice under Rule 14 was issued without any jurisdiction. At the hearing of the said writ petition a preliminary objection was raised by the Appellants that the said writ petition was not maintainable as being premature. The High Court held that as the impugned notice was issued without jurisdiction, it would be exposing the Respondent to jeopardy to require him to submit his reply to the said notice and to wait until his services were terminated.

The honourable Supreme Court held while allowing the appeal: 

This being the position, what then is the course open to the Central Government or the Chief of the Army Staff when the finding of a court- martial even on revision is perverse or against the weight of evidence on record? The High Court in its judgment under appeal has also held that in such a case a fresh trial by another court-martial is not permissible. The crucial question, therefore, is whether the Central Government or the Chief of the Army Staff can have resort to Rule 14 of the Army Rules. Though it is open to the Central Government of the Chief of the Army Staff to have recourse to that Rule in the first instance without directing trial by a court- martial of the concerned officer, there is no provision in the Army Act or in Rule 14 or any of the other rules of the Army Rules which prohibits the Central Government or the Chief of the Army Staff from resorting in such a case to Rule 14. Can it, however, be said that in such a case a trial by a court-martial is inexpedient or impracticable? The Shorter Oxford English Dictionary, Third Edition, defines the word "inexpedient" as meaning "not expedient; disadvantageous in the circumstances, unadvisable, impolitic". The same dictionary defines "expedient" inter alia as meaning "advantageous; fit, proper, or suitable to the circumstances o the case". Webster's Third New International Dictionary also defines the term "expedient" inter alia as meaning "characterized by suitability, practicality, and efficiency in achieving a particular end: fit, proper, or advantageous under the circumstances".

 In the present case, the Chief of the Army Staff had, on the one hand, the finding of a general court-martial which had not been confirmed and the Chief of the Army Staff was of the opinion that the further retention of the Respondent in the service was undesirable and, on the other hand, there were the above three High Court decisions and the point was not concluded by a definitive pronouncement of this Court. In such circumstances, to order a fresh trial by a court-martial could certainly be said to be both inexpedient and impracticable and the only expedient and practicable course, therefore, open to the Chief of the Army Staff would be to take action against the Respondent under Rule 14, which he did. The action of the Chief of the Army Staff in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarranted in law.

In the result, this Appeal must succeed and is accordingly allowed and the judgment of the Division Bench of the Allahabad High Court under Appeal is reversed and the order passed by it is set aside. The writ petition filed by the Respondent in the Allahabad High Court, namely, Civil Miscellaneous Writ No. 84 of 1977, is hereby dismissed.

Before parting with this Appeal, we would like to observe that the alleged incidents in respect of which the Respondent was tried before the general court-martial took place nearly ten years ago. We, therefore, feel that the Chief of the Army Staff should take into account the conduct and behaviour of the Respondent during the intervening period and if they have been in conformity with good order and military discipline and the high traditions of the Indian Army, he may consider the desirability of proceeding further in the matter.

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