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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 778 of 1988.

From the Judgment and Order dated 5.8. 1987 of the Assam High Court in Civil Rule No. 372 of 1982.

Anil Dev Singh and P. Parmeshwaran for the Appellants. A.K. Ganguli, I.A. Ansari and Ms. Mridula Ray for the Respondents.

The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal is by special leave and is directed against the judgment of the Division Bench of the High Court of Guwahati setting aside the order of conviction and the punishment of imprisonment as also the order of dismissal from service inflicted on the three respondents following a finding of guilt by the General Court Martial. Naik Subedar Baleshwar Ram was a Junior Commissioned Officer of Amaribari Supply Point in the far eastern sector and was in overall charge of the said supply point. Around 5.30 p.m. on June 19, 1980, he directed Driver Rattan Singh to park an army vehicle near the ration store for loading dry ration. Respondent Ramji with the help of one labour from civilian side loaded the dry ration in the vehicle, whereafter Baleshwar Ram directed the truck to be taken towards Balipura. Respondent No. 1 sat in the front seat in civil dress while respondents 2 and 3 sat behind the body of the truck. By the time the vehicle reached Balipura, it had become dark and respondent No. 1 ordered the driver to take the vehicle towards Tezpur. When the vehicle reached the outskirts of village Eatavari, respondent No. 1 directed the driver to slow down and turn the vehicle towards the right and take it off on a narrow kutcha track not leading to Tezpur. The driver of the vehicle was not prepared to take the vehicle on the kutcha road but upon respondent No. 1's insistence the vehicle was so taken and on the kutcha track the vehicle bogged down mid-way and could not be taken further. In the meantime, some civilian persons gathered there. The respondents 2 and 3 got down and started unload- ing some ration until they were prevented by the civilians slipped away from the place. The civilians being suspicious informed the civil police, who in turn handed over the matter to military police for investigation and necessary action. After due inquiry a disciplinary action was initiat- ed and inquiry under Rule 22 of the Army Rules was undertak- en. A General Court Martial followed where definite charges were given and ultimately on the basis of summary evidence available all the three persons were found guilty, convicted and sentenced. Order of dismissal from service followed. The decision of the Court Martial and the order of dismissal were challenged before the Guwahati High Court in a writ petition. The High Court found that as against re- spondents 2 and 3 there was no inquiry under Rule 22. The High Court relied upon the decision of this Court in Lt. Col. Prithi Pal Singh Bedi v. Union of India & Ors., [1982] 3 SCC 140 and held that the proceeding before the General Court Martial was in violation of the mandatory provisions of the Army Rules. On that finding the High Court set aside the order of conviction and punishment of imprisonment as also the order of dismissal from service.