Union of India and Others vs Satish Kumar

A.K. Sikri, C.J.—The respondent herein was enrolled in Army on 19.03.1987 in the Ordinance Corps. After some time he was promoted to the rank of Hawaldar. While holding this substantive rank of Hawaldar, he was charged with misconduct of absence from duty without sanctioned leave. Court Martial proceedings were ordered on the said charge which resulted in imposition of sentence of reduction in rank from that of Hawaldar to Sepoy. The respondent''s statutory appeal was also dismissed. Thereafter, the respondent filed a writ petition in this Court challenging the order of sentence. The sole plea taken by the respondent was that the impugned order was passed by the Commanding Officer who was not competent to impose punishment of reversion from the substantive rank of Hawaldar to the rank of Sepoy. This contention of the respondent has found favour with the learned Single Judge and on this ground the appeal of the respondent was allowed vide judgment dated 10.08.2010. It is this judgment which is in appeal before us.

The authority competent to pass the order of dismissal, removal or reduction in rank is governed by Section 20 of the Army Act, 1950. This section 20 reads as under:-

Dismissal, removal or reduction by the Chief of the Army Staff and by other officers.

(1) 1 [The Chief of the Army Staff] may dismiss or remove from the service any person subject to this Act other than an officer.

(2) 1 [The Chief of the Army Staff) may reduce to a lower grade or rank or the ranks, any warrant officer or any noncommissioned officer.

(3) An officer having power not less than a brigade or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his command other than an officer or a junior commissioned officer.

(4) Any such officer as is mentioned in sub-section (3) may reduce to a lower grade or rank or the ranks, any warrant officer or any noncommissioned officer under his command.

(5) A warrant officer reduced to the ranks under this section shall not, however, be required to serve in the ranks as a Sepoy.

(6) The commanding officer of an acting non-commissioned officer may order him to revert to his permanent grade as a noncommissioned officer, or if he has no permanent grade above the ranks, to the ranks.

(7) The exercise of any power under this section shall be subject to the said provisions contained in this Act and the rules and regulations made thereunder.

As per sub Section 2 of Section 20 of the Act, it is only the Chief of the Army Staff who may reduce any warrant officer or any noncommissioned officer to a lower grade or rank. It is not in dispute that the respondent is a non-commissioned officer. However, sub section (3) of Section 20 of the Act gives this power to a Brigadier or an equivalent commanding officer or any prescribed officer qua any person serving under his command but excludes an officer or a junior commissioned officer. Sub Section (4) of Section 20 of the Act gives power to the Brigadier in respect of Warrant Officer or any noncommissioned officer under his command. In the present case, however, the impugned orders were passed by the Commanding Officer who was of the rank of Colonel. It becomes obvious that the orders qua the respondent could not be passed by an officer below the rank of Brigadier. No doubt, sub section 3 also gives this power to ''any prescribed officer'', however, the appellant has not been able to show that these powers were prescribed and conferred upon the Colonel as well. Learned Single Judge has, therefore, rightly held that the officer who has passed the order of reversion of a non-commissioned officer was not competent to do so. Accordingly, we do not find any merit in this appeal and the same stands dismissed.