LexUNION OF INDIA versus S.P.S. RAJKUMAR AND ORS.
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UNION OF INDIA v. S.P.S. RAJKUMAR AND ORS. APRIL 24, 2007 [DR.ARIJITPASAYAT ANDLOKESHWARSINGHPANTA,JJ.] Service Law: Air Force Act, 1950; S.161 (2)/Air Force Rules, 1969; Rules 40 and 46: Dismissal form service-Group Captain-Allegations of financial impropriety-General Court Martial-Dismissal from service-Finding and sentence confirmed by Chief of Air Staff-Filing of writ petition by respondent before the High Court u/s 16(2) of 1950 Act-Central Government dismissed A B c the petition-Quashing the decision of General Court Martial, High Court D observed that since the Judge Advocate was junior in rank, GCM proceedings were vitiated-On appeal, Held: No plea raised by the Union of India in appeals before Supreme Court as regards the findings of High Court that GCM not validly constituted-High Court was not justified in interfering with the conclusion of GCM holding that it was not validly constituted-- Since the question of appropriateness of sentence was raised before the High E Court, the same was not examined by it in view of its conclusion that composition of GCM was illegal, the High Court is directed to re-consider the writ petition only on the question of sentence. Appellant-Union of India alleged that the respondent, while serving as Group Captain in the Indian Air Force committed large scale financial F impropriety in the matter of purchases. A charge sheet listing 9 charges relating to financial impropriety committed by him was issued. The General ~ourt Martial proceedings concluded with the finding that the respondent was guilty of four charges. Accordingly, he was sentenced to forfeiture of two years seniority and severe reprimand. By order dated 13.4.2000, the convening G Authority of GCM, on review, ordered for re-assembly of GCM for revision of the sentence. The GCM re-assembled and passed a fresh sentence of dismissal and revoked the earlier sentence. The Chief of Air Staff confirmed the findings and sentence. The respondent filed post confirmation petition under Section 161 (2) of the Air Force Act, 1950 and the same was rejected by the 521 H 522 SUPREME COURT REPORTS [2007] 5 S.C.R. A Central Government. In the meantime, respondent challenged the decision of GCM. The Division Bench of the High Court vide its judgment dated 5.8.2002 quashed the decision of the GCM proceedings on the ground that the Judge Advocate was junior in rank and, therefore, the GCM proceedings were vitiated. However, liberty was granted to proceed afresh with GCM. The B modification application filed by Union of India was dismissed by the High Court. Hence the present appeals. Appellant-Union of India contended that the vires of certain provisions though raised were not pressed into service before the High Court; that in terms of R.40 of the Air Force Rules, 1969, member of GCM should not be C junior, but it permits the juniors to be taken as members in certain circumstances; that the provisions in the Army Act and under the Army Rules are entirely different from Air Force Act and Air Force Rules; that any Rule similar to Rule 103/104 of the Army Rules did not exist in the Air Force Rules; that up to the date of judgment there was no plea relating to the lack of seniority of the Judge Advocate, besides, order of the GCM clearly indicated D that there was no officer available who was senior; and that the High Court had erred in holding that the relevant date was the date of filing of the writ petition. It should be the date of the judgment of the GCM. Respondent submitted that the judgment of the Supreme Court in Union of India and Anr. v. Charanjit S. Gill and Ors., JT [2000) 5 SCC 135 has full E application under the Air Force Rules and the Army Rules; that provisions relating to composition of GCM are the same, and that the convening order does not speak of any non-availability. F Dismissing the appeal, the Court HELD: I.I. There was no challenge.to the finding that there was no senior army officer available. Rule 46 of the Air Force Rules, which relates to the eligibility of the member does not speak of seniority. It speaks of the same rank or superior rank. There was no objection at any point of time about the lack of seniority. In fact the High Court has fallen into error in holding G that the relevant date is the date of filing of the writ petition. (Para 131 (525-H; 526-A) 1.2. There is also no plea raised in these appeals as regards the finding tha
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