Judgment:
1. Challenge is against the order dated 31.03.1993 passed by the fourth respondent, whereby the petitioner was sentenced to undergo RI for four months and to be reduced to the ranks and also the subsequent orders dated 15.12.1993 and 28.4.1994 passed by the third respondent in appeal.
2. The petitioner was appointed as a Sepoy in the Regiment of Artillery on 31.12.1976. Subsequently, he was given promotion to the rank of Lance Naik, Naik and Havildar. In August/September 1992, the petitioner was directed to take over charge from Naik PSS Reddy. The petitioner checked all the stores physically and attempted to verify them with stock ledger but found deficiency of many items. The petitioner requested that the reported deficiencies should be counter-signed by some senior officer so that in future he may not have to bear the brunt. The petitioner feeling that no senior officer is prepared to counter sign those deficiencies refused to take over the charge and the keys of the Signal Stores.
3. It is stated that the petitioner was charged for the offence of defying the orders of his superior but as a matter of fact he had taken over charge of the Signal Store while simultaneously signifying the deficiency in the store in the form of an appendix to the handing/taking over certificate. After having noticed large deficiencies of certain items in the appendix, the petitioner wanted his superior officer to counter-sign the charge certificate in order to avoid further problem in future affecting his career. When the senior officer was not prepared to counter-sign it, he made request to refer his letter dated 02.09.1992 to the higher authorities. That was also not considered and without any justifiable reason, his request was turned down. Moreover, certain classified documents and other valuable items were not found in the stock when inventory was drawn. Moreover the registers were incomplete with some of the pages were torn out. In such a situation, the petitioner wanted the list of inventory to be counter-signed by senior officer. But the petitioner was tried by Summary Court Martial and was held guilty.
4. The petition is resisted by the respondents contending, inter alia, that the petitioner wilfully defied the orders of his superiors by not taking charge of the Signal Store from his predecessor. He refused to sign the appendix, which formed part of the charge report with pretext that he would not sign it unless it was counter signed by senior officer. He also declined to receive the keys of the Signal Store, which amounted to misconduct or insubordination. He was charged under Section 41(2) of the Army Act for disobeying the lawful command given by his superior officer. It was stated in the charge that on 22.10.1992 that when he was ordered by IC-40762 W Capt. Rohit Kapur, Adjutant of the Unit by Letter Nos.02202/A/AA dated 22.10.1992 and 02127/GS/Case/A/AA dated
3.11.1992 to take over charge of Signal Store from No.14478231M Nk PSS Reddy, he wilfully disobeyed the direction of his superior and flouted the orders with impurity. The petitioner pleaded not guilty and was tried by Summary Court Martial.
5. The prosecution examined Capt. Rohit Kapur (IC-40762 W), who stated that under instructions from the Commanding Officer, Lt. Col. Chauhan, the petitioner was directed to take over charge of the Signal Store of 23 Air OP Flight, C/o 56 APO. Memo No.02202/A/AA dated 22.10.1992 from Naik PSS Reddy. The petitioner had given a seven pages long showing the articles which were deficient in the store while taking the inventory of the Signal Store. On his persuasion, the petitioner had put his signature on the charge certificate, but refused to sign the appendix and to accept the keys of the Signal Store. PW2 (1447823IMNK PSS Reddy) also stated that the petitioner told the Adjutant that he would not sign the appendix and receive the keys of the Signal Store. PW 3 (IC 436807 Capt. Rakesh Kapoor) also gave an identical statement with regard to the refusal of the petitioner to sign the appendix. The petitioner appeared as a witness in his defence and narrated with regard to the shortages of the items he had noticed in the Signal Store and a list of such articles was prepared by him. He simply asked Capt. Rohit Kapoor to counter sign the list, which was refused by him stating that he was not in charge of the Stores. On 31.10.1992, the petitioner signed the handing/taking over certificate. But he did not sign the appendix because nobody was prepared to bear the responsibility.
6. The Summary Court Martial, after examining both oral and documentary evidence, found the petitioner guilty of the charge and ordered his discharge from service. His appeal was also dismissed by the appropriate authority.
7. The point involved in this case is, how far the petitioner wilfully disobeyed the orders of his superiors, for which he was convicted. A quasi judicial or administrative authority is under obligation to pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed would lead to a wrong answer. In this case, the misdirection of law/rules committed by the superior officers was apparent since it failed to apply the principle of res ipsa loquitor, which was relevant for the purpose of this case and thus, failed to take into consideration a relevant factor and furthermore, took into consideration an irrelevant fact not germane for determining the issue viz. the order for signing the appendix would tantamount to disobedience. It was held by the Supreme Court in the decision reported in B.K Kapur and another v. Union of India and others (1989(3) SCC 381) that generally speaking the Courts have been reluctant to interfere the running of educational institutions but there can be âno islands of insubordination to the rule of law. The actions of the Educational Institutions, however highly reputed, are not immune from judicial scrutiny. Indeed, to preserve the high reputation, there is greater need to avoid even the semblance of arbitrariness and extraneous considerations colouring institutions action.
8. From the facts of this case, it appears that on 22.10.1992, the petitioner was asked to take over charge of the Signal Store. The petitioner, on verification, found a large number of deficiencies which were noted in about 7 pages. This was brought to the notice of Capt. Rohit Kapur, who clarified in his statement recorded in the summary of evidence thus:
â5. On 26 Oct 92 at 0945 hrs Hav Gian Singh reported to me and handed over list of deficiencies/discrepancies pertaining to signal stores. I hereby produce the list of discrepancies/deficiencies containing seven sheets as exhibit âN.. There was no handing/taking over certificate along with this and these sheets were not signed by Hav Gian Singh. On being asked by me to give a completion report, Hav Gian Singh stated that he would do so only if an officer first countersign these appendices.â
The petitioner had also made it clear to Col. Kapur that he would take over charge only if the handing/taking over certificate was counter signed by his superior officer. This part of the submission made by the petitioner appears to be legitimate. The doctrine âlegitimate expectation in essence imposes a duty on the authority to act fairly by taking into consideration all relevant factors with regard to such âlegitimate expectation. The authority concerned ought not to have defeated the âlegitimate expectation without overriding reasons justifying it to do so. Here, in this case, it was genuine and legitimate on the part of the petitioner to have brought to the notice of the superior officer when he had found the deficiencies and to request to counter sign it, especially since some of the items were sensitive and classified in accordance with security norms of the Army.
9. Under the provisions of handing over of classified documents, secret documents are to be in the safe custody of an officer and certainly not in custody of a Hav. Those classified documents were found missing from the signal store, it ought to have been taken seriously by the Adjutant and other senior officers of that unit. When handing over or taking over commenced, it was found that apart from the classified documents, the register was not properly maintained and even some pages were torn out from the register. It is stated that the classified document contained vital information adversely affecting security and such documents were found missing from the store. Under such circumstances, the superior officers instead of putting the career of the petitioner at peril should have viewed the matter seriously. Under the Army Rules, 1954 framed under Section 191 of the Army Act, the Staff Court of Inquiry was required to be set up to investigate the loss and to suggest remedial measures to prevent such loss in future. But that was not adopted. Instead, the petitioner was held guilty of disobedience.
10. Capt. Rohit Kapur PW1 stated that he insisted the petitioner to take over charge on the basis of the directions from the Commanding Officer to ensure compliance. This would indicate that the Commanding Officer, instead of setting up inquiry for the loss of the valuables from the signal store, was inclined to ensure compliance of his order. It has also come out from the statement of Naik PSS Reddy, who was holding the charge and in whose period the deficiencies were noticed, that he was not aware of the ledger entries. It is not on record as to what action has been taken against this person who was not in a position to handover full and complete charge explaining the deficiencies. Such type of evidence does not inspire any confidence. More so, when other handing/taking over certificates pertaining to other stores, copies of which have been brought on record, contained counter signatures, therefore why such counter signature was not being done in this case who certainly a cause of concern for the petitioner. There could be no reason for Capt. Rohit Kapur or other senior officers not to have counter signed these documents or at least to have initiated Court of Inquiry for such lapses. Relevant portion of Para 866 of the Defence Services Regulations Vol. II (Revised Edition) 1987 is extracted below:
â866. Handing and Taking Overâ (a) Every officer in charge of Government stores will, on handing over charge, check the stores in custody in company with the officer who relieves him. A transfer of charge will always take place when an officer ceases to hold a lien on his appointment. When proceeding on leave, including casual leave, or temporary duty, an officer will properly hand over Government stores in his charge, together with the ledgers correctly written up, to the officer who is detailed to officiate during his absence. The OC unit will satisfy himself that there has been a proper handing and taking over of charge and will certify to that effect. In cases of absence from duty of short duration not exceeding seven days and where no or only a few transaction(s) are likely to take place during that period, handing/taking over of stores and supplies need not be enforced provided the following procedure is carried out:-
xx xx xx xx xx xx
xx xx xx xx xx xx
(b) The relieving officer will satisfy himself that the stores correspond with ledger balances, that the books are complete and correct, and then will sign the transfer certificate (IAFZ 2081). Any omission to furnish this certificate will render the relieving officer responsible for his predecessor.s liabilities. ...........â
11. A reading of the above would show that the relieving officer will satisfy himself that the stores correspond with ledger balances. In this case, the ledger book was incomplete. Therefore, the request made by the petitioner for counter signature in the appendix by a senior officer cannot be construed to be defiance of the order of the superior authority. On the other hand, it was the legitimate expectation from the side of the petitioner to have endorsement of some senior officers on the appendix.
12. Having regard to the facts and circumstances of the case, when administrative authorities are at fault for not conducting an enquiry for ascertainment of the loss, the action taken against the petitioner was unwarranted. The petitioner had justifiably explained the reasons for not putting his signature on the appendix.
13. A careful and dispassionate assessment and consideration of the materials placed on record does not leave any reasonable impression on the particular facts and circumstances of the case, about the misconduct or disobedience to lawful order.
14. The impugned order of dated 31.03.1993 sentencing the petitioner to four months in Military prison and reduced to ranks is not sustainable. The petition is allowed and the impugned order of dated 31.03.1993 as well as the order of discharge from service dated 15.12.1993 and the order dated 28.04.1994 passed in appeal are set aside. However, the sentence of imprisonment has already been served by the petitioner and is a fait accompli. The order to be reduced to ranks is set aside and he shall be given the rank of Hav and deemed to be in service, without back wages, till such time that he earns pension in the rank of Hav. after which he will be deemed to have retired and be entitled to accumulated pension and other related and consequential benefits as if he continued to remain in service.