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TMI Blog2001 (2) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... was subject to confirmation by the higher authorities under Chapter XII of the Army Act. Pursuant to the said sentence, the respondent was taken into custody on the very day i.e. 28th July, 1976. When the conviction and sentence was taken up by the confirming authority, same was remanded back to the GCM for reconsideration. On remand, the GCM again heard the respondents counsel and modified its earlier order whereby while finding the respondent again guilty reduced the earlier sentence of R.I. for one year to that of six months. This order was also subject to confirmation. However, in view of the fact that the respondent who by virtue of the first order was undergoing the sentence, had completed the period of six months by that time, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and proper. The fresh order must contain the reasons. Similarly I direct the Director- General of Border Roads to give a personal hearing to the petitioner in connection with his post-confirmation petition and pass a fresh order either confirming the earlier order dated the 23rd March, 1979, or passing a fresh order as he may think fit and proper. The fresh orders must contain the reasons. Against the said judgment of the learned Single Judge, none of the respondents before the learned Single Judge, who are now appellants before us, preferred any appeal. Hence, the said order has become final so far as they are concerned. The respondent, however, not being satisfied, preferred an appeal before the Division Bench of the said High Court and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not existing when the order of suspension was made. It seems that the Division Bench was of the opinion that once a person is in custody the question of keeping him under suspension does not arise. We do not agree with this opinion of the Division Bench because the Division Bench failed to notice that the respondent was due to be released on 27.1.1977 after serving the six months R.I. imposed on him. After his release in the normal course, he was entitled to claim reinstatement in service unless departmental proceedings were initiated against him for the misconduct for which he was convicted. Therefore, the authority thought it necessary to keep the respondent under suspension, hence, the orders under Rule 10 of the Central Rules were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame day which was in accordance with Section 167 of the Army Act. The Division Bench, in our opinion, did not notice this provision of the Army Act when it found fault with the GCM for taking the respondent into custody before the sentence imposed by it was confirmed by the confirming authority. The Division Bench also found fault with the order of dismissal passed by the disciplinary authority on the ground that the same was solely based on the conviction suffered by the respondent in the Court Martial proceeding. The court in this regard held that the disciplinary authority had a pre-determined mind when he passed the order of dismissal. Here again, in our opinion, the Division Bench did not take into consideration Rule 19 of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proportionality of punishment. In the instant case, the disciplinary authority has followed the procedure laid down in Rule 19, hence, we cannot agree with the Division Bench that the said disciplinary authority had any pre-determined mind when it passed the order of dismissal. The Division Bench next came to the conclusion that the finding arrived at by the GCM is perverse. In regard to this finding, this is what the court has observed in its judgment: It also appear to us that the decision arrived at by the G.C.M. was arrived at without consideration of evidence and as such the same are perverse. There has been no proper consideration of relevant facts and materials and no reasonable man acting bona fide and with proper considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct 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 23.9.1960 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 Ors. v. Union of India Ors. (AIR 1983 SC 658). As n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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