JUDGMENT Ashok Bhushan, J.
1. Heard Sri G. D. Mukherji, counsel for the petitioner and Sri S. K. Srivastava. Additional Standing Counsel appearing for the respondents.
2. By this writ petition, the petitioner has prayed for quashing the discharge order dated 23rd December, 2001. Further a writ of mandamus has been sought directing the respondents to reinstate the petitioner in service and allow him to undergo advanced training with his subsequent batch.
3. The facts of the case as given in the writ petition are; the petitioner was enrolled in Indian Army as Recruit Gunner on 14th March, 2001 and reported for training on 16th March. 2001 in Artillery Centre, Hyderabad. It is stated that he left the training unit on 20th September, 2001 and came back to his home. The petitioner's parents and well wishers took him back to Hyderabad to report at Artillery Centre. Hyderabad. When the petitioner re-joined on 12th November, 2001, after being absent for 53 days; 10 days rigorous imprisonment under Section 39(a) of the Army Act, 1950 (hereinafter referred to as Army Act) was awarded to the petitioner. The petitioner was discharged from service with effect from 22nd March, 2001 under Rule 13 (3) Item IV of the Army Rules. 1954 (hereinafter referred to as Army Rules). The petitioner filed Writ Petition No. 5526 of 2002, Jay Shiv Kushwaha v. Union of India and Ors., challenging his discharge order. The writ petition was v dismissed on the ground that petitioner has alternate remedy of filing statutory complaint under Section 26 of the Army Act. The petitioner claims to have sent statutory complaint dated 18th February, 20O2, through his counsel copy of the said complaint has been filed as Annexure-3 to the writ petition.
4. A letter dated 18th March, 2002, was sent on behalf of the Commandant in reference to the statutory complaint of the petitioner dated 18th February, 2002 to the counsel for the petitioner at Allahabad intimating that petitioner cannot be reinstated in service. The counsel for the petitioner, Sri G. D. Mukherji, made statement that the order dated 18th March, 2002, in fact, decides statutory complaint dated 18.2.2002, hence the petitioner has right to invoke the jurisdiction of this Court under Article 226 of the Constitution of India.
5. The counsel for the petitioner made following submissions in support of the writ petition :
(i) The petitioner was awarded 10 days rigorous imprisonment under Section 39(a) of Army Act for his offence of being absent without leave. The subsequent discharge of the petitioner on same ground is impermissible and amounts to violation of protection given by Article 20 of the Constitution of India. The principle of double jeopardy is attracted in the present case and discharge is vitiated due to that reason.
(ii) The order of discharge was issued by Battery Commander, Major V. Rajendra Menon whereas according to, Army Rule 13 (3) Item IV, only the Commanding Officer has got power to discharge a recruit, hence the order of discharge is without Jurisdiction.
6. The Additional Standing Counsel appearing for the respondents refuted the submissions of counsel for the petitioner. The submission of counsel for the respondents is that there is no question of applicability of principle of double jeopardy. The sentence of an offence is entirely different thing from discharge. With regard to second submission of counsel for the petitioner, learned Additional Standing Counsel referred to paragraph 6 of the letter dated 18th March, 2002, where a categorical finding has been recorded that before issuing the discharge, sanction of the Commandant, Artillery Centre, Hyderabad, has been obtained and the discharge was not issued by Major V. Rajendra Menon.
7. From the submission of counsel for the parties and the facts of the case, following three questions arise for consideration in the present writ petition :
(a) Whether when a person has already been punished and awarded a sentence for an act which is an offence under Section 39 of the Army Act, on same act can he be also discharged?
(b) Whether the principle of double jeopardy as enshrined under Article 20(2) of the Constitution of India is attracted in the present case?
(c) Whether the discharge of the petitioner was not made by Commanding Officer as claimed by the petitioner?
8. The Army Act had been enacted to consolidate and amend law relating to regular Army. The Army Act contains provisions pertaining to Commission, Punishment and Enrolment, condition of service, offences, punishments. Courts Martial and other subject. Chapter VI defines various kind of offences contemplated under the Army Act. Various provisions describing offence also contain provision that on conviction by a court martial the person shall be liable to suffer imprisonment or such other punishment as mentioned therein. The trial of service personnel by Court martial is contemplated and the Army Act is self contained Act relating to trial of offence by court martial. Section 39 of the Army Act provides that any person who absent himself without leave commits an offence. Section 39 of the Army Act is quoted below :
"39. Absence without leave.--Any person subject to this Act who commits any of the following offences, that is to say :
(a) absents himself without leave ; or
(b) without sufficient cause overstays leave granted to him ; or
(c) being on leave of absence and having received information from authority that any corps, or portion of a corps, or any department, to which he belongs, has been ordered on active service, fails, without sufficient cause, to rejoin without delay ; or
(d) without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty ; or
(e) when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march ; or
(f) when in camp or garrison or elsewhere, is found beyond any limits fixed.
or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer ; or
(g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there ;
shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned."
9. From the facts of the present case, it is clear that the petitioner absented himself without any leave for 53 days and due to that he was convicted to suffer imprisonment for a period of 10 days. Thus, the imprisonment of 10 days was on account of offence committed by the petitioner of absenting without leave. Chapter IV of the Army Act contains provisions relating to condition of service. Section 22 provides for retirement, release or discharge. Section 22 lays down that any person subject to Army Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed. Rule 13 (3) Item IV provides that recruits who are considered unlikely to become efficient soldiers will be dealt with under this item. Item IV of Rule 13 (3) of Army Rules is quoted as below :
"Category Grounds of discharge CompetentAuthority Manner of discharge 1 2 3 4 the person whose discharge is contemplated, an opportunity to show cause against the contemplated discharge.
Persons enrolled under the Act but not attested IV All classes of discharge Commanding officer or an officer commanding a Recruit Reception Camp, or a Recruiting, Technical Recruiting Deputy Recruiting or Deputy Technical Recruiting officer In the case of persons requesting to be discharged before fulfilling the conditions of their enrolment, the commanding officer will exercise this power only where he is satisfied as to the desirability of sanctioning the application and that the strength of the unit will not thereby be unduly reduced.Recruits who areconsidered unlikely to become efficient soldiers will be dealt with under this item."
10. The submission which has been raised by the counsel for the petitioner is to the effect that since the petitioner already suffered imprisonment of 10 days for leave without permission, he could not be discharged on the same ground. The scheme of the Army Act clearly discloses that offences and punishment on conviction of the said offences have been included with object of punishing the Army officials, who commit any such offence. The punishment for an offence defined under Army Act is for a definite purpose and object. The punishment awarded to an Army official on conviction of an offence cannot be any impediment for taking any action regarding service of a person. Section 71, which contains punishment, itself provides for various punishments including dismissal from service, Sections 71, 72 and 73 of the Army Act contain provision that sentence of a court martial may award in addition to, or without any one other punishment. The punishment specified in Clause (d). Clause (e) of Section 71. Sections 71, 72 and 73 of the Army Act is quoted as below :
"71. Punishments awardable by courts martial--Punishments may be Inflicted in respect of offences committed by persons subject to this Act and convicted by court-martial according to the scale following, that is to say :
(a) death ;
(b) transportation for life or for any period not less than seven years ;
(c) imprisonment, either rigorous or simple, for any period not exceeding fourteen years ;
(d) cashiering, in the case of officers ;
(e) dismissal from the service ;
(f) reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers ; and reduction to the ranks or to a lower rank or grade, in the case of noncommissioned officers :
Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy ;
(g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officers ; and forfeiture of all or any part of their service for the purpose of promotion in the case of any of them whose promotion depends upon length of service :
(h) forfeiture of service for the purpose of Increased pay, pension or any other prescribed purpose ;
(i) severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and noncommissioned officers ;
(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service ;
(k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal ;
(I) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.
72. Alternative punishments awardable by court-martial.--Subject to the provisions of this Act, a court-martial may, on convicting a person subject to this Act of any of the offences specified in Sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lower in the scale set out in Section 71, regard being had to the nature and degree of the offence.
73. Combination of punishments.--A sentence of a court-martial may award in addition to, or without any one other punishment, the punishment specified in Clause (d) or Clause (e) of Section 71 and any one or more of the punishments specified in Clauses (f) to (I) of the section."
The aforesaid provisions clearly contemplate award of sentence of an offence along with punishment contemplated in the provisions defining the offences in addition to dismissal from service. The aforesaid scheme as apparent from various provisions of the Army Act clearly suggests that the dismissal from service is also included in addition to prescribed sentence for a particular offence. If the argument of counsel for the petitioner is to be accepted, the said result could not have been achieved since according to his submission, if sentence of an offence is provided, the person cannot be dealt again.
11. The various provisions in different service rules even the services under Union of India and the State also contain provision that a person can be dismissed from service on account of conduct which led to his conviction. This very principle has been enshrined under Article 311 of the Constitution of India. Article 311(2) second proviso clearly provides that person can be dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge. Article 311(2) of the Constitution of India is quoted as below :
"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.--(1) (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges :
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed :
Provided further that this clause shall not apply :
(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge ; or
(b) Where the authority empowered to dismiss a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such Inquiry ; or
(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry."
12. The submission of counsel for the petitioner on the basis of provisions of Article 20(2) of the Constitution of India need to be considered. Article 20 of the Constitution of India provides :
"20. Protection in respect of conviction for offences.--(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been Inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself."
Article 20, Sub-clause (2), provides that no person can be punished for the same offence more than once. The aforesaid provision contains an injunction against prosecution and punishment of a person for same offence more than once. The above provision of the Constitution contains principle of double jeopardy as known to the American Constitution. The scope of Article 20(2) of the Constitution has been explained and expounded by the Apex Court in several judgments. The Apex Court in Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, laid down in paragraph 7 :
"7. The fundamental right which is guaranteed in Article 20(2) enunciates the principle of "autrefois convict" or "double jeopardy". The roots of that principle are to be found in the well established rule of the common law of England "that where a person has been convicted of an offence by a court of competent jurisdiction, the conviction is a bar to all further criminal proceedings for the same offence." (Per Charles, J. in Reg, V. Miles, (1890) 24 QBD 423 (A). To the same effect is the ancient maxim "Nimo Bis Debet Puniri Pro Uno Delicto", that is to say that no one ought to be twice punished for one offence or as it is sometimes written "Pro Eadem Causa" that is for the same cause."
13. The Constitution Bench of the Apex Court in S. A. Venkataraman v. Union of India and Anr., AIR 1954 SC 375, had again occasion to consider the scope of Article 20(2) of the Constitution, of India. In the aforesaid case, the writ petitioner had filed a petition for quashing criminal proceedings started against the petitioner in the Court of Special Judge, Sessions Court, Delhi. The petitioner was a member of the Indian Civil Service and against him, an enquiry was directed to be conducted in accordance with provisions of Public Servants (Inquiries) Act of 1850. In the said Inquiry, the charges against the petitioner were found proved and he was dismissed from service after consultation with the Union Public Service Commission. Subsequent to dismissal, a charge-sheet was submitted in the Court of Special Judge under Section 161/165 of the Indian Penat Code and Section 5(2) of the Prevention of Corruption Act. The said criminal case was sought to be quashed by the writ petitioner on the ground that the said criminal proceeding is barred by principle of double jeopardy. The Apex Court rejected the contention and held that in the aforesaid case, the principle of double jeopardy is not attracted. The Apex Court in paragraphs 5 and 6 of the aforesaid judgment laid down that in order to enable a citizen to invoke the protection of Clause 2 of Article 20 of the Constitution, there must have been both prosecution and punishment in respect of the same offence. Paragraphs 5 and 6 of the aforesaid judgment Is quoted as below :
"(5) although these were the materials which formed the background of the guarantee of the fundamental right given in Article 20(2) of the Constitution, the ambit and contents of the guarantee, as this Court pointed out in the case referred to above, are much narrower than those of the Common Law rule in England or the doctrine of "Double Jeopardy" In the American Constitution. Article 20(2) of our Constitution, It is to be noted, does not contain the principle of "outrefois acquit" at all. It, seems that our Constitution makers did not think it necessary to raise one part of the Common Law rule to the level of a fundamental right and thus make it immune from legislative interference. This has been left to be regulated by the general law of the land.
In order to enable a citizen to invoke the protection of Clause (2) of Article 20 of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words "prosecuted and punished" are to be taken not distributively so as to mean prosecuted 'or' punished. Both the factors must exist in order that the operation of the clause may be attracted. The position is also different under the American Constitution. There the prohibition is not against a second punishment but against the peril in which a person may be placed by reason of a valid Indictment being presented against him, before a competent court, followed by proper arraignment and plea and a lawful impanelling of the jury. It is not necessary to have a verdict at all; Vide Wlllis on Constitutional Law, p. 528.
(6) It has also been held by this Court in Maqbool Hussain's case (A)', that the language of Article 20 and the words actually used in it afford a clear Indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding, before a court of law or Judicial tribunal, and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute, but which is not required by law to try a matter judicially and legal evidence. In that case the proceedings were taken under the Sea Customs Act before a Customs authority, who ordered confiscation of goods. It was held that such proceedings were not "prosecution", nor the order of confiscation a 'punishment' within the meaning of Article 20(2) inasmuch as the Customs authority was not a Court or a judicial tribunal and merely exercised administrative powers vested in him for revenue purposes."
After analysing all earlier cases, it was held by the Apex Court that in enquiry under Public Servants (Inquiries) Act, there is neither any question of investigation of an offence in the sense of an act or omission punishable by any law for the time being in force, nor is there any question of imposing punishment prescribed by the law. It was laid down in paragraph 17 of the aforesaid judgment:
"17. In our opinion, therefore, in an enquiry under the Public Servants (Inquiries) Act of 1850, there is neither any question of investigation of an offence in the sense of an act or omission punishable by any law for the time being in force, nor is there any question of Imposing punishment prescribed by the law which makes that act or omission an offence. The learned Attorney General raised a point before us that the test of the guarantee under Article 20(2) is whether the person has been tried and punished, not for the same act, but for the same offence and this contention is that the offences here are different, though they may arise out of the same acts. In the view that we have taken this question does not arise for consideration at all. It is also not necessary to express any opinion on the question raised by the learned counsel for the petitioner as to whether for the purpose of attracting the operation of Article 20(2) the punishment must be Imposed by the same authority before which the prosecution was conducted. The result is that, in our opinion, the petition fails and is dismissed."
14. In the present case, there is no question of applicability of principle of double Jeopardy since investigation and punishment on the basis of an offence is dealt in Section 39 of Army Act and the power of discharge ts contained in Section 22 read with Rule 13 which is an independent power and the punishment on the basis of an offence is not an Impediment in taking any action under Section 13. The principle of double jeopardy is already contained in Army Act in Section 121 which is quoted as below :
"121. Prohibition of second trial.--When any person subject to this Act has been acquitted or convicted of an offence by a court-martial or by a criminal court, or has been dealt with under any of the Sections 80, 83, 84 and 85, he shall not be liable to be tried again for the same offence by a court martial or dealt with under the said sections,"
15. The submission of counsel for the petitioner that on principle of double jeopardy discharge could not have been made is without any substance. The scheme of the Army Act clearly provides that punishment of an offence and discharge of any recruit are two different and Independent proceedings and are not inter dependent.
16. A recent Judgment of the Apex Court has again considered this argument. In Union of India and others v. Sunil Kumar Sarkar, 2001 (3) SCC 414, the Apex Court had occasion to consider the principle of double Jeopardy. In the aforesaid case in a court-martial under Army Act, rigorous Imprisonment for one year was awarded and in the meantime, disciplinary proceedings were initiated under Rule 19 of Central Civil Services (Classification, Control and Appeal) Rules, 1956. The respondent in that case was dismissed from service. He challenged the conviction order as well as the dismissal order. The argument on the basis of principles of double jeopardy was expressly repelled. Repelling the same, the Apex Court held in paragraph 11 of the aforesaid judgment:
"11. Before concluding we must point out that during the course of arguments, a doubt was raised as to the maintainability of the concurrent proceedings initiated against the respondent by the authorities. The respondent in this case has been punished for the same misconduct both under the Army Act as also under the Central Rules. Hence, a question arises whether this would tantamount to 'double Jeopardy' and is in violation of Article 20 of the Constitution of India. Having considered the arguments addressed in this behalf, we are of the opinion that so far as the concurrent proceedings initiated by the organisation against the respondent both under the Army Act and the Central Rules are concerned, they are unexceptionable. These two proceedings operate in two different fields though the crime or the . misconduct might arise out of the same act. The court-martial proceedings deal with the penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not overlap. As a matter of fact, Notification No. SRO-329, dated 23.9.1969 issued under the Central Rules and under Sub-sections (1) and (4) of Section 4 of the Army Act makes this position clear. By this notification, the punishments that could be meted out under the Central Rules have been taken out of the purview of the court-martial proceedings under the Army Act. We further find support for this view of ours in the judgment of this Court in R. Viswan v. Union of India. "
The principle laid down by the Apex Court in the aforesaid case is fully attracted in the present case and the discharge order cannot be held to be suffering from any such infirmity nor the punishment of rigorous Imprisonment to the petitioner is an impediment in his discharge.
17. The second question to be decided is as to whether the discharge of the petitioner was made by the Commandant or not. The petitioner in the writ petition has contended that petitioner was discharged from service by Battery Commander, Major v. Rajendra Menon. In the letter dated 18th March, 2002, which has been annexed as Annexure-5 to the writ petition and issued on behalf of Commandant, it has specifically been stated in paragraph 16 that the discharge of the petitioner was sanctioned by Commandant Artillery Centre, Hyderabad. No ground has been made out in the writ petition not to believe the aforesaid statement made in the letter dated 18th March, 2002, issued on behalf of the Commandant. From the statement given in paragraph 6 of the aforesaid order, it is clear that the discharge was sanctioned by the Commandant, who is authority competent under Section 13(3) Item IV of Army Rules. Thus, the argument of the counsel for the petitioner that petitioner was not discharged by authority competent cannot be accepted, It is further relevant to note that although the petitioner has annexed the letter dated 18th March, 2002, as Annexure-5 to the writ petition but in the writ petition, he has not even prayed for quashing the same nor it has been stated that averment made in paragraph 6 of the letter dated 18th March, 2002, are incorrect.
18. In view of what has been said above, none of the submissions raised by the counsel for the petitioner has any merit. The writ petition lacks merit and is dismissed.