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 PROPERTYSection 55(a) BELONGING TO PERSONS SUBJECTTO MILITARY LAWin 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 ACTSection 63 AN ACT PREJUDICIAL TO GOOD