TMI Blog2007 (7) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... ate the exercise of power so long as the power does exist and can be traced to a source available in law [see N. Mani v. Sangeetha Theatre Ors. [ 2004 (3) TMI 786 - SUPREME COURT] ]. Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority u/s 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the learned counsel for the appellant. A plain reading of the order of discharge shows that it is an order of termination of service simpliciter without casting or attaching any stigma to the conduct of the appellant, therefore the said order cannot be termed to be punitive in nature or prejudicial to the future employment of the appellant in getting employment in civil service. Thus, the contention of the learned counsel for the appellant that the order of discharge is punitive in nature does not merit acceptance. We are satisfied that there is ample evidence on record in support of the judgment and order of the Division Bench of the High Court and there is nothing that would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounting the issue of POL in the operation of Kerbside Pump. C. To indicate loopholes and suggest remedy and measures. D. To indicate losses other than those mentioned in the order. 7. The court of inquiry deliberations was held by the authority between the period commencing from 16.08.1988 and 12.12.1988. On 06.10.1988, the appellant was detained for interrogation under custody. During interrogation, the appellant made confessional statement of receiving illegal money of ₹ 12,500/- from one Shri Rajendra Singh, owner of Pansari Shop, for sale of 87 MT Gas through BPLs and Kerbside Pump, kept by Dvr. Gde 11 Ramakant Prasad of A Coy 5033 ASC Bn (MT). The appellant later on deposited ₹ 5,200/- out of ₹ 12,500/-. 8. The court of inquiry was completed and on 24.08.1988 the enquiry report was submitted to the competent authority. 9. The appellant, having been found guilty of prejudicial act to good order and military discipline, was charged under Section 63 of the Army Act, 1950 [for short the Army Act]. On 08.08.1989, Major H. S. Dhillon, Presiding Officer, Summary of Evidence, sent a letter to the appellant and LDC J.P. Singh directing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant that the court of inquiry, acting under the Army Rules, collects evidence during fact finding proceedings and no one is accused or charged of any offence in that proceedings. It was argued that the evidence collected during court of inquiry is not admissible against the appellant in view of Section 63 of the Army Act under which the case should have been remanded for trial by court-martial as was done in the case of other army personnel, who were dealt with by court-martial and they were retained in service by imposing minor punishment upon them whereas the appellant was discharged from service, as a result thereof his entire past service has been forfeited and he has been deprived of the benefit of pension as also future employment in any other civil service. The learned counsel contended that the appellant was administratively discharged from service contrary to the provisions of Section 63 and there is no provision to impose major penalty in the form of termination of service of the appellant by the respondent No.5 under the guise of discharge from service in exercise of power under Section 20 of the Army Act. 14. Mr. Vikas Singh, learned ASG appearing for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Army Act read with Rule 13 on the grounds covered under column (2)(v) of the Table, after affording adequate opportunity to him of showing cause before the said order of discharge came to be passed. We are, however, satisfied on the material placed before us that the court of inquiry was formed under Rule 177 of the Army Rules and the purpose of court of inquiry was to collect the evidence for the information of superior officers to make up their mind about the involvement of the appellant and the other army officials in the racket of clandestine sale of petrol. In the court of inquiry, the appellant was heard and was given proper and adequate opportunity to cross-examine the witnesses, which he did not choose to avail. The respondents, in Para 20 of the counter affidavit filed in opposition to the writ petition before the High Court, have made categorical statement that in the court of inquiry the appellant was given full opportunity to defend his case and to cross-examine the witnesses who appeared and deposed before the Recording Officer, but the appellant was just sitting throughout the proceedings and did not avail the opportunity of cross-examining the witnesses. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. [AIR 1982 SC 1413] and S. N. Mukherjee v. Union of India [(1990) 4 SCC 594]. In the said decisions, this Court has dealt with the matter of imposition of punishment on Army officials who were subjected to court- martial proceedings. In S. N. Mukherjees case (supra), this Court was dealing with the requirement of recording of reasons by an authority exercising quasi-judicial function, besides challenge to the court-martial proceedings. Reliance was placed on Paragraph 13 of the judgment of this Court in the case of Major Suresh Chand Mehta (supra). In that case, this Court held that the court of inquiry, as provided under Rule 177 of the Army Rules, is merely held for the purpose of collecting evidence and if so required, to report in regard to any matter which may be referred to the officers and such an inquiry is for the purpose of a preliminary investigation and cannot be equated with a trial or court-martial. All the above cited decisions are of no assistance to the appellant in the peculiar facts of the case on hand. We are satisfied that there is ample evidence on record in support of the judgment and order of the Division Bench of the High Court and there is nothing that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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