ORDER
S.R. Nayak, J.
1. The petitioner is a retired Army personnel. In this writ petition he has assailed the validity of the disciplinary proceedings conducted by the General Court Martial (GCM) and the sentence imposed by it on him as a disciplinary measure and the order of the third respondent dated 16-8-1990 in confirming the same. The facts leading to the filing of the writ petition be stated briefly under two phases as pleaded by the petitioner as under:
I Phase: The petitioner joined the Indian Army as Sepoy on 25-10-1961. After several promotions, he was working as Senior Junior Commissioned Officer (SJCO) of 6 Battery in 2 Training Regiment in Hyderabad in the Year 1987. While holding that post he was also officiating as Subedar Major which post is the next higher post to the post of SJCO for a period of five months before one Subedar Major Waman Akde took charge of that post on 21-1-1987. On 16-2-1987 the petitioner was transferred to Allahabad, Uttar Pradesh and he was to report at Allahabad on 28-4-1987. Sub. Maj Waman Akde after assuming office took hostile attitude against the petitioner for the reason that the petitioner did not receive him properly when he arrived in Hyderabad and began to harass him in various ways by abusing and misusing his office for no fault of the petitioner. In pursuance of his inimical attitude and with an intention to harass and humiliate the petitioner, Sub. Maj Waman Akde while proceeding on leave, handed over the charge of the post of Subedar Major to a junior of the petitioner on 3-3-1987 instead of handing over the charge to the petitioner as the petitioner was the seniormost in the Regiment. Sub. Maj. Waman Akde also made false allegations against the petitioner that the petitioner had been using electrical heater in his house and in that connection he raided the house of the petitioner in his absence illegally. At the behest of Sub. Maj. Waman Akde the quarters allotted to the petitioner was directed to be vacated by the authorities and only on the representation of the petitioner the quarter was restored to the petitioner subsequently. Sub. Maj. Waman Akde used to threaten the petitioner orally. When the matter stood thus, Sub. Maj. Waman Akde lodged a complaint to the Commanding Officer alleging that the petitioner was responsible for burning of certain kits and personal items belonging to the new recruits of the 6 Battery of 2 Training Regiment, Artillery Centre, Hyderabad on 2-4-1987 at 6.30 a.m. The Commanding Officer ordered D.P. Chakraborty, the Battery Commander to investigate into the matter and submit a report. The Battery Commander investigated into the complaint and reported to the Commanding Officer that there was no truth in the complaint, Despite this, the Commanding Officer ordered Court of Inquiry under Rule 177 of the Army Rules, 1954, for short ‘the Rules’. Court of Inquiry was conducted by Maj. V.M. Wadhawan of another Battery. Basing on the report of the Maj. V.M. Wadhawan, the Commanding Officer directed O.P. Chakraborty, the Battery Commander to march the petitioner under Rule 22 of the Rules. The Commanding Officer again ordered to record evidence under Rule 22(3) read with Rule 25 which was a step towards G.C.M. or dismissal of charge or summary disposal as provided under Rule 24. On 7-5-1987 summary of evidence was completed without heeding to the request of the petitioner to call witnesses. On 12-6-1987 the Commanding Officer chose one of the options provided under Rule 25(2) i.e., for summary disposal as provided for under Rule 27 and accordingly he issued the proceedings to the petitioner to submit list of witnesses in support of the defence, On 13-6-1987 the petitioner submitted representation requesting for the option of trial by G.C.M. In the same representation, the petitioner gave the names of his witnesses to be secured for G.C.M. In the meanwhile on 4-8-1987 the promotion Board approved the name of the petitioner for promotion to the post of Subedar Major, but, promotion was denied to the petitioner on the ground that disciplinary proceedings were pending. On 9-3-1988 the petitioner filed W.P.No.3777/88 in this Court questioning the action of the respondents refusing to promote him to the post of Subedar Major. On 4-8-1988 charge-sheet under Section 55(a) was issued to the petitioner. On 20-6-1988 the Promotion Board again approved the name of the petitioner for promotion to the post of Subedar Major. On 27-8-1988 G.C.M. was convened and the petitioner raised objections, at the threshold, that reproof (verbal warning) was already administered to him and therefore no further enquiry could be conducted; the action tantamounted to double jeopardy, violative of Article 20 of the Constitution and Section 121 of the Army Act, 1950, for short ‘the Act’, and Rule 53 of the Rules; summary of evidence was recorded contrary to the rules and in violation of principles of natural justice. The G.C.M. upheld the objections of the petitioner and dissolved the G.C.M.
II Phase:
On 7-11-1988 the same Commanding Officer again ordered de novo enquiry and directed the petitioner to submit list of defence witnesses. On 9-3-1988 (sic.) the petitioner filed W.P.No. 18200 of 1988 in this Court questioning the action of the Commanding Officer in ordering de novo enquiry. On 14-6-1989 the Army Promotion Board again approved the name of the petitioner for promotion to the post of Subedar Major for the third time. On 21-10-1989 this Court by common judgment dismissed the W.P.No. 3777/88 and W.P. No. 18200/88. However, as far as W.P.No. 3777/88 is concerned, the Court while dismissing the writ petition observed that in the event of further enquiry going in favour of the petitioner, either wholly or in part, it would be for the authorities to consider the case of the petitioner for higher promotion or higher emoluments, notwithstanding the petitioner’s retirement in the meanwhile. On 31-10-1989 the petitioner was retired from service on attaining the age of superannuation. However, the same day the petitioner was put under close arrest as provided under Section 123 and summary of evidence was recorded. On 9-3-1990 another chargesheet under Section 63 was issued to the petitioner alleging that the petitioner improperly and without authority ordered the destruction of certain kits and personal items belonging to the recruits of 6 Battery of 2 Training Regiment, Artillery Centre, Hyderabad set out in the said charge-sheet. On 28-3-1990 the G.C.M. was convened and ‘Plea in Bar’ was raised by the petitioner contending that reproof (verbal warning) was already administered to him on earlier occasion and therefore G.C.M. could not proceed to hold enquiry for the same offence for the second time. On 31-3-1990 witnesses for ‘plea in bar’ were not made available and the prosecutor requested for adjournment till 2-4-1990. On the same day the defending officer submitted an application for summoning witnesses in support of the defence and submitted that 21 witnesses mentioned in the Appendix to the application were essential after explaining the relevancy of the witnesses. The Judge Advocate also advised that the provision for defraying the costs for securing the witnesses should not be allowed to interfere with the calling of the witnesses and absence of those witnesses would likely to invalidate the proceedings of the G.C.M. On 2-4-1990 also witnesses for ‘plea in bar’ were not made available. On 5-4-1990 the petitioner submitted a representation to the convening officer i.e., General Officer Commanding at Madras marking copies to the General Officer, Commander-in-Chief, the Deputy Judge Advocate General,Pune and Col. Rajinder Singh Marya, Presiding Officer, G.C.M. and the Commandant, Artillery Centre, Hyderabad. In para 3 of the said representation the petitioner requested for securing essential witnesses as requested by him in his representations dt. 20-10-1987, 22-1-1990, 10-3-1990 and 31-3-1990. On 16-44990 the G.C.M. was convened and the witnesses were examined with respect to ‘plea in bar’ on 17-4-1990. On 20-4-1990 arguments were heard and Judge Advocate gave his advice on ‘plea in bar’. ‘Plea in bar’ was disallowed. On 21-4-1990, 23-4-1990 and 24-4-1990 witnesses were examined. On 25-4-1990 the petitioner opted to call witnesses in his defence as provided under Rule 59. The same day D.W.I Saikie was also examined. On 26-4-1990 D.W.2 D.B. Chakraborty was examined. Or 30-4-1990 defending officer gave written closing address and on 1-5-1990 the reply of prosecution in writing was submitted. On 3-5-1990 the G.C.M. was closed under Rule 61 for consideration of finding. On 3-5-1990 the G.C.M. recorded its finding that the petitioner was guilty of the charge and it imposed a sentence of reduction in seniority by one year in the rank of substantive Subedar and severe reprimand was administered. On 16-8-1990 the third respondent confirmed the sentence.
2. On service of notice a counter-affidavit is filed on behalf of the respondents-Army authorities resisting the claim of the petitioner. The petitioner has also filed a reply affidavit.
3. Sri M. Ravindra Nath Reddy, the learned Counsel for the petitioner contended-
(i) that the charge-sheet dated 9-3-1990 which has culminated in the impugned proceedings and the sentence is invalid and suffers from several errors apparent on its face; Section 63 has no application; the charge incorporated in the charge-sheet is truncated one and the same charge was earlier framed against the petitioner vide charge-sheet dated 4-8-1988;
(ii) that the proceedings are conducted by the G.C.M. in utter violation of principles of natural justice and the provisions of the rules governing the enquiry inasmuch as the respondents failed to secure the attendance of the defence witnesses on the ground that the petitioner did not defray the costs of securing the attendance of witnesses;
(iii) that the impugned action is tainted by mala fide; Sub. Maj. Waman Akde was totally hostile and inimical towards the petitioner and he engineered to initiate disciplinary proceedings on concocted plea that the petitioner was responsible for ordering and destroying kits and personal items belonging to the new recruits;
(iv) that there is absolutely no evidence to prove the charge; and
(v) that ptens rea on the part of the petitioner is not proved.
4. On the other hand Smt. A. Chaya Devi, the learned Standing Counsel for the respondents would support the impugned action and impress upon the Court about the scope of judicial review in reviewing the actions taken by the Army authorities in disciplinary proceedings.
5. Although several contentions are raised and argued by the learned Counsel for the parties touching upon the procedure as well as merits, I do not find it necessary to deal with all those contentions inasmuch as having heard the learned Counsel and perusing the records of the case, I find two fatal errors in the procedure adopted by the respondents. The errors go to the root of the matter.
6. The charge-sheet issued to the petitioner is not sustainable for more than one reason. Initially, the petitioner was charged under Section 55 (a). The charge- sheet dated 4-8-1988 issued under Section 55(a) of the Act reads:
CHARGE-SHEET:
The accused No. JC-95036 F Sub(TA) Kashmira Singh, 2 Training Regiment, Artillery Centre, Hyderabad is charged with:-
ARMY ACT WILFULLY DESTROYED PROPERTY
Section 55(a) BELONGING TO PERSONS SUBJECT
TO MILITARY LAW
in that he,
at Hyderabad on 2 April 1987, while Senior JCO of 6 Battery of 2 Training Regiment, Artillery Centre, Hyderabad, caused to be destroyed b) burning the items belonging to the recruits of the said Battery, as per the details mentioned in Appendix A to this charge-sheet. Place: Hyderabad-31 (GS Grewal)"
Date: 04 Aug. 1988.
This charge was given up after pursuing the same for considerable time and upto certain stages and another chargesheet was issued to the petitioner under Section 63 on 9-3-1990. It reads:
CHARGE-SHEET
The accused, Shri Kashmira Singh, formerly number JC 95036 F Subedar (TA) Kashmira Singh, 2 Training Regiment, Artillery Centre Hyderabad, now attached to 2 Training Regiment, Artillery Centre Hyderabad, and liable to trial by Court Martial under Section 123 of the Army Act, is charged with:-
ARMY ACT
Section 63 AN ACT PREJUDICIAL TO GOOD ORDER
AND MILITARY DISCIPLINE,
in that he,
at Hyderabad, on 02 April 1987 while functioning as Senior JCO of 6 Battery of 2 Training Regiment, Artillery Centre, Hyderabad, improperly and without authority ordered the destruction of the following kit and personal items belonging to the recruits of the said battery:-
(a) Boot Ankle .. 25 pairs
(b) Shoe Canvas .. 11 pairs
(c) Mufti Shoes .. 4 pairs
(d) Private Slippers .. 5 pairs
(e) Bed Sheets .. 3
(f) Pack 08 .. 1
(g) Dangri (overall
combination) .. 1
Sd.
Placet Hyderabad -31 (AFMA Muqsith) Colonel Commanding
Date: 09 March 1990 Officer, 3 Training Regiment Artillery
Centre, Hyderabad.
To be tried by General Court Martial.
Station : Madras -9 Sd. Pushpinder Kumar
Dated: 20 March 1990 Major General, General Officer
Commanding Andhra. Tamil Nadu,
Karnataka, Kerala and Goa Area"
7. The submission of Sri Ravindra Nath Reddy that Section 63 is not attracted/ applicable to the facts of this case is well-founded. At the outset it may be noted that the base for the initiation of the disciplinary proceedings against the petitioner was the complaint lodged by Sub. Maj. Waman Akde on 3-4-1987 alleging that the petitioner was responsible for burning of the kit and personal belongings of the new recruits of 6 Battery of 2 Training Regiment on 2-4-1987. That is why the petitioner was charged under Section 55(a) on 4-8-1988 on the basis of the report of the Court of Inquiry conducted by Major V.M. Wadwan. Section 55 reads:
“55. INJURY TO PROPERTY:- Any person subject to this Act who commits any of the following offences, that is to say,-
(a) destroys of injures any property mentioned in clause (a) of Section 54 or any property belonging to any military, naval or air force mess, band or institution, or to any person subject to military, naval or air force law, or serving with or attached to, the regular Army, or
(b) commits any act which causes damages to, or destruction of, any property of the Government by fire; or (c) kills, injures, makes away with, ill-treats or loses any animal entrusted to him;
shall, on conviction by court-martial, be liable if he has acted wilfully, to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and if he has acted without reasonable excuse, to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.”
8. The respondents, for the reasons best known to them, did not pursue the charge levelled against the petitioner in the charge-sheet dated 4-8-1988 and abandoned the same and issued a new charge-sheet under Section 63 on 9-3-1990. Section 63 reads:
“63. Violation of Good order and Discipline:
Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by Court-Martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.”
9. The petitioner has been charged for ordering destruction of the kit and personal items belonging to the recruits of 6 Battery of 2 Training Regiment set out in the charge-sheet improperly and without authority. At the outset it may be noted that causing destruction of or injury to any property belonging to the army or its personnel is covered under Section 55(a) of the Act. In the charge- sheet dated 4-8-1988 it was alleged that the petitioner was guilty of ordering destruction of articles as well as destroying the same by burning. In other words, the charge of ordering destruction of articles was an integral part of the accusation. In the charge-sheet dated 9-3-1990 the accusation is confined to the ordering of destruction of the articles only. The first part of the integral charge levelled in the charge-sheet dated 4-8-1988 was lifted and recasted as an independent charge against the petitioner in the charge-sheet dt. 9-3-1990. The submission of the learned standing Counsel for the Army is that since the Army authorities did not have evidence to prove the act of destruction of articles attributed to the petitioner, they thought it necessary to charge the petitioner under Section 63 inasmuch as the act of the petitioner in merely ordering destruction of the articles is not covered by Section 55 or any other section of the Act. The Word ‘destruction’ connotes an act or a process of destroying or ruining something. Without telling what is that “something and what is the result of that process, accusation of destruction simpliciter does not make any sense or atleast it cannot be comprehended or complete. Rule 28(1) provides that a charge-sheet shall contain the whole issue or issues to be tried by a Court-Martial at one time. Note (5) to Section 54 states that whenever it is desired that the offender should, on conviction of an offence under the clause or clause (b), be awarded stoppages under Section 71 (1) in respect of the value of the articles which need be made good to the Government/ Public, then the value must be stated in the particulars of the charge and proved. Note(6) to Rule 30 provides that where it is intended to prove any facts in respect of which any deduction from pay and allowances can be awarded as a consequence of the offence charged, the particulars shall state those facts and the sum of the loss or damage it is intended to charge. Keeping these statutory requirements in mind, earlier the petitioner was charged under Section 55(a). The present charge does not state even the mode of destruction of the articles alleged to have been ordered by the petitioner. The alleged ‘order’ and destruction of articles are integral parts of the same transaction earlier attributed to the petitioner in the charge-sheet dated 4-8-1988. In other words, the charge levelled against the petitioner in the charge-sheet dated 9-3-1990 is not a new charge, but an integral part of the old charge itself. The respondents conducted the Court of Inquiry, convened the G.C.M. in pursuance of the charge-sheet dated 4-8-1988. The G.C.M. upheld the objections raised by the petitioner and dissolved the G.C.M. by its proceeding dt.28-7-1988.Therefore, it was totally impermissible in law for the Army authority to order de novo enquiry under the guise of a new charge under Section 63. As pointed out supra, the charge framed in the charge-sheet dt. 9-3-1990 is not a new charge but a part of the old charge itself. Further, the allegations levelled against the petitioner, if true, are not covered by Section 63, but fully covered by Section 55(a). Note (1) to Section 63 provides that as a rule a charge should not be preferred under that section where special provisions for the offence is made elsewhere in the Act. Special provisions are enacted in Section 55 to deal with the offences of destruction of or injury to the property of the army or its personnel. The charge is also vague and incomprehensible. It is well-settled law if the charge- sheet/charge memo itself suffers from fatal errors, the proceedings taken in pursuance of such charge-sheet would be nullity in the eye of law, and such errors would go to the root of the matter. Hence, on this singular ground the impugned action of the respondents should be held to be invalid and it is accordingly declared.
10. The impugned proceeding and the final confirmation order made by the third respondent cannot be sustained on the ground of violation of principles of natural justice and the provisions of the Act and the Rules governing the procedure also. The respondents refused to secure the witnesses desired by the petitioner in support of his defence on the ground that the petitioner failed to defray the costs of securing the attendance of the witnesses. The petitioner submitted a list of witnesses in support of his defence to the Commanding Officer, 2 Training Regiment on 22-1-1990 and 10-3-1990 as per Appendix-A under the provisions of Section 135 of the Act and Rule 34(1) of the Rules. The G.C.M. was convened on 28-3-1990. It was adjourned to 31-3-1990. At the time of hearing before the G.C.M. on 31-3-1990, the defending officer submitted an application. It reads:
“IN THE GENERAL COURT MARTIAL OF EX JC – 95036 F
SUB (TA) KASHMIRA SINGH
APPLICATION UNDER ARMY ACT SECTION 135 ARMY
RULES 34(I) AND 137.
The Accused Ex JC-95036 F Sub(TA) Kashmira Singh respectfully submits as under:-
1. The accused had submitted a list of witnesses required for his defence to the Commanding Officer 2 Training Regiment on 22 January 1990 and 10 March 1990 as per Appendix ‘A’ under the provisions of Section 135 of the Army Act and Rule 34(i) of Army Rules 34(i) of Army Rules 1956.
2. The Accused has not so far been informed about the availability of these witnesses except Sr. 10. Hence the Accused in inhibited in preparing his defence.
3. The Accused further respectfully submits that he was retired from service with effect from 01 Nov. 1989 and has since then been kept under close arrest in the Training Regiment. The Accused has so far not been paid any pension. Even the money due to him from his savings in the Army Force Personal Provident Fund, the Group Insurance Scheme, and the credit balance in the IRIA has not been paid till to-day. The Accused is a poor man and has an ailing wife and three small children. He is in no position to pay for the expenses of the Defence Witnesses requested to be called.
4. The Accused considers the witnesses given in Appendix ‘B’ attached as absolutely essential for his defence for the reasons given against each. It is requested that the Honourable Court may be pleased to direct the concerned authorities to procure the attendance of these witnesses as early as possible as any delay only harms the life and liberty of the Accused.
Station: Hyderabad-31 Sd. Defending Officer Date: 31 March 90. For The Accused."
11. The Defending Officer requested the G.C.M. to secure the presence of the witnesses whose names are given in the list as early as possible for examination before the G.C.M. in support of the defence of the petitioner. On this application, the G.C.M. deliberated. The G.C.M. after noting the views of the Prosecutor and Judge Advocate passed the following order:
“The Court decides to direct the prosecutor to make available the following witnesses namely Lt Col (TS) DP Chakraborty, Nb Sub Garib Singh, Hav Balvinder Singh, NK SC Saikia OPR Rajinder Singh, OPR Birpal Singh and OPR Pramjit Singh. The Court also directs the prosecutor in case any other witness out of Appendix ‘B’ to Exhibit ‘N’ submitted by the defending officer is required by the defence then efforts should be made by the prosecution to procure their attendance provided the defence is willing to defray the cost of their attendance. The Court also decides to adjourn until 02 April 1990.”
12. Ultimately, the witnesses desired by the petitioner were not secured and the proceedings were concluded. The defence for the refusal to summon the witnesses is that the petitioner did not defray the costs of securing the witnesses.
13. Certain provisions of the Act and the Rules relevant to the issue may be noted at the outset. Rule 34(1) provides that the accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that, on his giving the names of witnesses whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance. Rule’136 provides that the accused shall not be required to give to the prosecutor or Court a list of the witnesses whom he intends to call, but it shall rest with the accused alone to secure the attendance of any witness whose evidence is not contained in the summary or abstract, and for whose attendance the accused has not requested steps to be taken as provided by sub-rule (1) of Rule 34. Rule 137 (1) provides that in the case of trials by general or district court-martial, the commanding officer of the accused, the convening officer or, after the assembly of the Court, the presiding officer, shall take proper steps to procure the attendance of the witnesses whom the prosecutor or accused desires to call, and whose attendance can reasonably be procured, but the person requiring the attendance of a witness may be required to undertake to defray the cost (if any) of their attendance. Note (5) to Rule 137 provides that the power to require the person calling a witness to undertake to defray the cost of his attendance is given in order to prevent an unreasonable demand by prosecutors or accused persons for the attendance of witnesses; in the case of the prosecutor, the cost will usually be defrayed as part of the expenses of the prosecution; in the case of the accused, this provision should not be allowed to interfere with the calling of a witness who appears to be material, and the absence of material witness might afterwards be held to invalidate the proceedings of a court-martial, even though, if the witness had been called, the Court would probably have arrived at the same decision, inasmuch as it is impossible to tell what effect the evidence of such a witness might have had upon the Court. Rule 138 further provides that if such proper steps as mentioned in Rule 137 have not been taken as to any witness, or if any witness whose attendance could not be reasonably procured before the assembly of the Court is essential to the prosecution or defence, the Court shall take steps to procure the issue of commission for the examination of such witnesses; or if it is a general or district Court-martial, adjourn and report the circumstances to the convening officer; or if it is a summary Court-martial adjourn to enable the witnesses to attend, or adopt such other course as appears to the officer holding the trial best calculated to do justice.
14. Defraying the costs of the attendance of the witnesses by the petitioner was not a condition precedent for the respondents to secure the attendance of the witnesses under Rule 137. Note (5) to Rule 137 makes it abundantly clear. During the relevant time, the petitioner was kept under close arrest. The application dated 31-3-1990 submitted by the Defending Officer to the G.C.M. extracted above, discloses the pathetic financial position in which the petitioner was placed. The petitioner pleaded in the said application his inability to defray the costs for the reasons stated therein. The correctness of those reasons is not disputed. Even assuming that the petitioner was liable to defray the cost of securing the attendance of the witnesses, there was no impediment for the respondents to secure the attendance of the witnesses, at the cost of the Army and then to deduct such costs from the pay and allowances due to the petitioner. Sections 90(e), 93 and 95 provide for such deductions. In Mumtaz Hussain Ansari v. State of U.P. and Anr., the Supreme Court held that the failure of the U.P. Administrative Tribunal to summon eight witnesses in support of the defence of the delinquent on the ground that the delinquent failed to deposit initially a sum of Rs. 900/- for the travelling expenses and daily allowances of the witnesses violated principles of natural justice having regard to the fact the delinquent in that case was under suspension during the relevant time. Therefore, the refusal of the respondents to summon the witnesses desired by the petitioner in support of his defence is not only violative of principles of natural justice and ‘fair-play in action’ but also violative of the provisions of Rule 137 and Note (5) thereto.
15. On the two short grounds noted above, the petitioner is entitled to succeed. Ordinarily where the disciplinary enquiry is shown to have been held in violation of principles of natural justice, the enquiry would be vitiated and the order based on such enquiry would be quashed by issuance of a writ of certiorari. It is well-settled that in such a situation, it would be open to the disciplinary authority to hold enquiry afresh. That would be the normal consequence. But the Court has several weighty reasons not to accede to the request of the learned counsel for the Army to reserve liberty to the Army administration to hold de novo enquiry. The petitioner joined the Army in 1961 as sepoy and served honourably and without any blemish in almost every place-NEFA, West Bengal, Punjab, Jammu & Kashmir, Assam and Sikkim and participated in major operations like ‘Ablaze’, ‘Riddle’, ‘Cactus’, and ‘Savage’. He owned nine medals and the Paschim Star, the Samara Seva Star, the Himalaya Seva Star and the NEFA Star. He got five promotions during his 25 years of service. Even when disciplinary proceedings were pending against him, the Army Promotion Board recommend the name of the petitioner for promotion thrice to the post of Subedar Major. The alleged incident took place on 2-4-1987, nearly ten years back. The petitioner retired from service on 31-10-1989 on attaining age of superannuation. Before his retirement, he was denied promotion to the post of Subedar Major despite the recommendation of the Army Promotion Board thrice on the ground that disciplinary proceedings were pending. The same day on which the petitioner retired, he was taken into custody and was kept under close arrest by the administration by exercising power under Section 123. The Court is deciding the writ petition after more than six years of its presentation in this Court. The petitioner has already undergone processorial torture and irreversible prejudice. He was deprived of personal liberty also after his retirement. Admittedly the track service record of the petitioner before the present alleged misconduct was unblemished. It has come in the evidence of the witnesses’ for the prosecution that the petitioner is a disciplined and strict officer. It may be that when he inspected the barrack on 2-4-1987 after seeing the disorderly kit lay-out, he being a disciplined officer might have out bursted his displeasure by asking the sentry on duty to throw out the scattered articles. The earlier allegation of destroying the articles is given up in the charge-sheet dt. 9-3-1990. The mere allegation that the petitioner shouted at the sentry on duty to throw out and destory the articles, in the context of an understandable righteous displeasure without further allegation of translating the verbal direction to the sentry into an act, does not persuade this Court to reserve liberty to the respondents to hold de novo enquiry. Further, a careful peeping into the evidence of the prosecution witnesses clearly indicates the unusual part played by Sub Maj. Waman Akde in launching the prosecution against the petitioner. P.Ws.1 to 3-Rajendra Singh, Birpal Singh, Premjit Singh in their evidence have stated that it was Sub. Maj Waman Akde who called them on 3-4-1987 and made enquiries about the incident. The evidence of P.W.4 Sub. Garib Singh is quite revealing. In his evidence he has stated that on 3-4-1987 Sub. Maj. Waman Akde called him to his office and directed that he should state that the items collected from the barrack have been burnt and the witness further states that he refused to oblige Sub. Maj. Waman Akde. It has come in the evidence of P.W.3 that it was the duty of A.F.P. Leader to inform A.P.P. Havildar about any incident taking place in the barrack and he did not report to anybody about the alleged incident. D.W.2 Lt. Col. (T.S.) D.P. Chakraborthy who was the officer superior to the petitioner at the relevant time in his evidence has stated that before the alleged incident the petitioner reported to him twice that Sub. Maj. Waman Akde was trying to implicate him in false case. It is relevant to note that Sub. Maj Waman Akde was not a superior officer to the petitioner in the same Battery at the relevant point of time. The extraordinary and unusual interest and concern shown by Sub. Maj. Waman Akde to call P.Ws.l to 4 and dictating P.W.4 to lie, in the context of the earlier reports made by the petitioner to Lt Col. D.P. Chakraborty, prima facie indicates that the relationship between the petitioner and Sub. Maj Waman Akde was strained. I have referred to the oral evidence of the witnesses examined in the case not with an intention to reappraise the evidence but only to point out that the allegation made by the petitioner in the affidavit that the proceedings came to be initiated at the behest of Sub. Maj. Waman Akde to wreak vengeance against him for certain personal reasons set out in the affidavit seems to be correct. Lt. Col. D.P. Chakraborthy is a relatively high-ranked Army personnel against whom nothing adverse is suggested. At the relevant point of time, he was working as the Battery Commander of 6 Battery of 2 Training Regiment and in pursuance of the order passed by the Commanding Officer he investigated into the complaint lodged by Sub. Maj. Waman Akde and reported that there was no truth in the complaint. Despite this report, the Commanding Officer ordered Court of Inquiry culminating in the constitution of G.C.M. G.C.M. also by its proceedings dated 28-7-1988 upheld the objections raised by the petitioner and dissolved the G.C.M. Again, the petitioner was charge-sheeted culminating in the proceedings and the sentence impugned in this writ petition. What is discernible from these events is that there was consistent and determined effort on the part of the Commanding Officer not to give up but to proceed against the petitioner even after his retirement, perhaps to appease Svib. Maj. Waman Akde. The interest of Justice and ‘Fairness in action’ warrant giving a quietus to the decade old controversy. Subjecting the petitioner to one more enquiry on a truncated charge would not serve any purpose. In certain circumstances, the Courts have refused to permit de novo enquiry or to remand proceedings for fresh trial. The decisions of the Supreme Court in Bhagat Ram v. State of Himachal Pradesh and Ors., , Prafulla Chandra Mohapatra v. State of Orissa, , Union of India and Ors. v. I.S. Singh, 1994 Supp. (2) SCC 518 are the authorities, to cite the few.
16. The next aspect to be considered is to what relief the Court should grant to the petitioner. In this writ petition, the petitioner has prayed for quashing the disciplinary proceedings conducted by the General Court Martial and the sentence imposed by it on him as a disciplinary measure and the order of the third respondent dated 16-8-1990 confirming the same. It is well-settled that the High Court in exercise of its jurisdiction under Article 226 can mould the reliefs keeping in mind the facts and circumstance of the case before it. This Court, while disposing of W.P.No. 3777/88 directed against the refusal of respondents to promote the petitioner to the post of Subedar Major, observed as under:
“———–That in the event of further enquiry going in favour of the petitioner, either wholly or in part, it will be for the authorities to consider the case of the petitioner for higher promotion or higher emoluments, notwithstanding the petitioner’s retirement.”
Since the petitioner succeeds in the enquiry by virtue of this order, the petitioner is entitled to be promoted notionally to the higher posts and to the pecuniary and other benefits flowing from such notional promotion or promotions. Further it is just and proper to award costs of several rounds of departmental proceedings and the litigations in this Court. The costs incurred by the petitioner, even on minimal scale, could not be less than Rs. 15,000/-.
17. In the result I make the following
ORDER
(i) W.P.No. 4519 /91 is allowed and the impugned proceedings and the order of the third respondent dated 16-8-1990 are quashed;
(ii) A writ of mandamus shall issue to the respondents to grant promotion/promotions notionally to the petitioner in the light of the recommendations made by the Promotion Board with effect from the date on which such promotion/promotions fell due with all consequential pecuniary and other benefits flowing from such promotion. This direction should be carried out within a period of two months from to-day.
(iii) The petitioner is entitled to the costs quantified at Rs. 15,000/-. The respondents shall pay the costs to the petitioner within a period of two weeks from to-day.