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Compendium of Indian Military Judgements

A Compendium of Indian

Military Cases: Apex Court

Judgments & Some Relevant

Common Law Cases Volume

I

Ed: Chandra Nath

ii

Copyright 2011 by Chandra Nath

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Contents

1 Major E. G. Barsay v. The State Of Bombay 1961 1
2 Ram Sarup v. The Union Of India 1963 35
3 Union of India v. Maj S K Sharma 1987 47
4 S.K. Rao v. Union Of India 1967 61
5 Delhi Police Est v. Lt Col S K Loraiya 1972 67
6 Capt Harish Uppal v. Union Of India 1972 73
7 O K Achudan Nair v. Union of India 1975 83
8 Maj Gen D.S. Nakara v. Union Of India 1982 87
9 Viswan v. Union Of India 1983 127
10 Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985157
11 Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
  Choudhury 1986 171
12 Union of India v. Maj S K Sharma 1987 183
13 Vidya Prakash v. Union Of India 1988 197
14 Lt Col K D Gupta v. Union of India 1988 205
15 Lt Col K.D. Gupta v. Union of India 1989 213
vi CONTENTS
16 S N Mukherjee v. Union Of India 1990 221
17 Ex-Hav Ratan Singh v. Union of India 1991 249
18 Bhuwneshwar Singh v. Union Of India 1993 253
19 P Chandramouli v. Union Of India 1994 263
20 Union Of India v. R.K.L.D. Azad 1995 269
21 Union Of India v. Major General Madan Lal Yadav 1996 273
22 Major Kadha Krishan v. Union Of India 1996 289
23 Major R.S. Budhwar v. Union Of India 1996 295
24 Anuj Kumar Dey & Anr v. Union Of India 1996 305
25 Union Of India And Others v. Major A. Hussain 1997) 313
26 The General Court Martial v. Col. Aniltej Singh Dhaliwal
  1997 327
27 Union of India v. Capt. A.P. Bajpai 1998 337
28 Union Of India v. Subedar Ram Narain 1998 345
29 Union of India v. Hav Clerk SC Bagari 1999 351
30 Union Of India v. Himmat Singh Chahar 1999 357
31 Union of India v. Sadha Singh 1999 361
32 Union Of India v. Charanjit S. Gill 2000 365
33 Sukhdev Singh Gill v. State Of Punjab 2000) 387
34 Union Of India v. R P Yadav 2000 393
35 Union Of India v. Harjeet Singh Sandhu 2001 401
36 Union Of India v. R.K. Sharma 2001 425
CONTENTS vii
37 Union Of India v. P.D. Yadav 2001 433
38 Union of India v. L.D. Balam Singh 2002 453
39 Union Of India v. Shivendra Bikaram Singh 2003 463
40 Jasbir Kaur v. Union Of India 2003 481
41 Union Of India v. Ashok Kumar 2005 487
42 Union Of India v. Ranbir Singh Rathaur 2006 497
43 Union of India v. Capt. Satendra Kumar 2006 507
44 Romesh Kumar Sharma v. Union of India 2006 511
45 Pradeep Singh v. Union Of India 2007 517
46 Union Of India v. S.P.S. Rajkumar 2007 523
47 Sheel Kr. Roy v. Secretary M/O Defence 2007 527
48 Ram Sunder Ram v. Union of India 2007 535
49 Union of India and another v. SPS Vains 2008 541
50 P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008 549
51 Bachan Singh v. Union of India 2008 557
52 Union of India v. V. N. Singh 2010 587
53 Arun Raj v. Union Of India 2010 599
54 Charanjit Lamba v. Commndng.O cer,Southern Command
  2010 609
55 J.S. Sekhon v. Union Of India 2010 615
56 Place Holder 621
57 Place Holder 623
viii CONTENTS
58 Place Holder 625
59 Place Holder 627
60 Place Holder 629
61 O'Callahan v. Parker, 395 U.S. 258, 265 (1969) 631

Preface

x CONTENTS
RF 1971 SC 500 (17)
The appellant and ve other per-
R 1968 SC1323 (7)
HEADNOTE:
R 1966 SC1273 (20)
R 1963 SC1850 (59)
CITATOR INFO :
CITATION:
DAYAL, RAGHUBAR
SUBBARAO, K.
BENCH:
SUBBARAO, K.
BENCH:
24/04/1961
DATE OF JUDGMENT:
THE STATE OF BOMBAY
Criminal Trial - Criminal Mis- conduct - Army O cer tried by Special Judge-jurisdiction-Sanction for Prosecution given by Deputy Secretary-Validity-Investigation by Inspector of Police, Special Po- lice Establishment, Delhi-Legality- Conspiracy-Public Servants charged with others-Legality of charge- Approver-Corroboration-Prevention of Corruption Act, 1947 (11 of 1947). ss. 5A, 5(2), 6(r)(a)-Army Act, 1950
1961 AIR 1762 1962 SCR (2) 195 (46 of 1950), ss. 52, 70, 125, 127- Criminal Law (Amendment) Act, 1952 (46 of 1952), ss. 6, 7, 8, 9- Constitution of India, Art. 77.
RESPONDENT:
ACT:
v.
RF 1992 SC 604 (125)
MAJOR E. G. BARSAY
R 1986 SC1655 (7)
PETITIONER:
R 1977 SC2433 (9) D 1979 SC1255 (8) RF 1982 SC1413 (39)
Major E. G. Barsay v. The State Of Bombay on 24 April, 1961 Equiv- alent citations: 1961 AIR 1762, 1962 SCR (2) 195 Bench: Subbarao, K.
RF 1971 SC1120 (20)

Chapter 1

Major E. G. Barsay v. The State Of Bombay 1961

2 Major E. G. Barsay v. The State Of Bombay 1961

sons, three of them not being public servants, were charged with criminal conspiracy to dishonestly or fraudu- lently misappropriate or convert to their own use military stores and with dishonestly and fraudulently misappropriating the same. Sanc- tion for prosecution of the accused was given by a Deputy Secretary on behalf of the Central Government. The accused were tried by a Spe- cial judge. The main evidence led was that of one L, a security of-cer., who had been asked to join the conspiracy and who had joined it with a view to have the o end- ers apprehended. The Special judge convicted all the accused persons. On appeal the High Court con rmed the conviction of the appellant and one other accused now dead and ac- quitted the other four accused per- sons holding that the evidence of L was corroborated in material partic- ulars in respect of the appellant and one other accused only. The appel- lant contended:- (i) that the appel- lant who was subject to the Army Act could only be tried by a Court Martial and the Special judge had no jurisdiction to try him, (ii) that the sanction to prosecute was void as it was not expressed to be made in the name of the President, (iii) that the investigation by the Inspector of Police, was illegal, (iv) that there could be no legal charge of conspir- acy between accused who were public servants and accused who were not, and (v) that L was a wholly unreli- able witness whose testimony ought to have been rejected totally and no question of its corroboration arose.

Held, that the Special judge had jurisdiction to try the appellant for the o ences charged. The Army Act does not bar the jurisdiction of criminal courts in respect of acts or omissions which are punishable un- der the Army Act as well as under any other law in force. The o ences charged were triable both by the Spe- cial judge and by a Court Martial. In such cases s. 125 of the Army Act provides that if the designated o cer decides that the proceedings should be before a Court Martial he may direct the accused to be de- tained in military custody. But in the present case the designated o - cer bad not exercised his discretion and the Army Act was not in the way of the Special judge exercising his jurisdiction. Rule 3 made under s. 549, Code of Criminal Procedure for persons subject to military law was applicable only to magistrates and not to a Special judge who is not a magistrate within the meaning of r. 3. Besides, s. 7 of the Crimi- nal Law (Amendment) Act, 952, pro- vides that notwithstanding anything contained in the Code of Criminal Procedure or in \any other law" the o ences speci ed in s. 6(1) shall be triable by Special judges only. The words \any other law" included the Army Act also. The o ences for which the appellant was convicted were o ences speci ed in s. 6(1) and were exclusively triable by a Special judge.

Held, further, that the sanction for the prosecution of the appellant was a good and valid sanction. Arti- cle 77 of the Constitution which pro-

3

vides that all orders of the Central Government shall be expressed to be in the name of the President is only directory and not mandatory. Where an order was not issued in strict com- pliance with the provisions of Art. 77 it could be established by extra- neous evidence that the order was made by the appropriate authority. In the present case there was uncon- troverted evidence which established that the order of sanction was made by the Deputy Secretary on behalf of the Central Government in exercise of the power conferred on him un- der the rules delegating such power to him.

The State of Bombay v. Pu- rushottam jog Naik, [1952] S.C.R. 674, Dattareya Moreshwar Pan- garkar v. The State of Bombay, [1952] S.C.R. 612, J. K. Gas Plant Manufacturing Co., Ltd. v. The King Emperor, [1947] F.C.R. 141, P. Joseph John v. The State of Travancore-Cochin, [1955] 1 S.C.R. 1011 and Ghaio Mall & Sons v. The State of Delhi, [1959] S.C.R. 1424, applied.

Held, further, that though the conditions of investigation by the In- spector of Police as laid down in S. 5A, Prevention of Corruption Act were not complied with the trial. was not vitiated by the illegality as it did not result in any miscarriage of jus- tice. The powers and jurisdiction of members of the Delhi Special Police Establishment for investigation of of- fences in the State of Bombay had been duly extended by a noti cation of the Government of Bombay dated August 13, 1949, giving a general

consent in respect of all the members of the establishment. It was not nec- essary that the consent be given to every individual member of the Es- tablishment. H.N. Rishbud & Inder Singh v. State of Delhi, [1955] 1 S.C. R. 1150, followed,

Held, further, that there was no defect in the charges. It was not il- legal to charge public servants and persons who were not public servants with the criminal conspiracy to do certain acts for which all of them could not be convicted separately. Though all the accused were not li- able for the individual o ences, they were all guilty of the o ence of con- spiracy to do illegal acts.

Held, further, that the evidence of L was reliable and that it was corroborated in material particulars so far as the appellant was con- cerned. Though L was not an accom- plice, he was an interested witness and required corroboration. The ev- idence of an approver and the cor- roborating pieces of evidence could not be treated in two di erent com- partments; but had to be considered together. Though some parts of the evidence of L were not accepted, his version was broadly accepted in re- gard to the conspiracy and the man- ner in which articles were smuggled out.

Sarwan Singh v. The State of Punjab, [1957] S.C.R. 953, explained.

JUDGMENT:

CRIMINAL APPELLATE JU- RISDICTION: Criminal Appeal No. 2 of 1958.

Appeal from the judgment and

4 Major E. G. Barsay v. The State Of Bombay 1961

order dated July 27, 1957, of the Bombay High Court in Criminal Ap- peal No. 254 of 1957. WITH

Criminal Appeal No. 81 of 1960.

Appeal by special leave, from the judgment and order dated July 27, 1957, of the Bombay High Court, in Criminal Appeals Nos. 255 and 257 of 1957.

M.H. Chhatrapati, Ravindra Narain, O. C. Mathur and J. B. Dadachanji, for the appellant (in Criminal Appeal No. 2 of 1958).

B.K. Khanna and D. Gupta, for the respondent in Criminal Appeal 2 of 1958) and appellant (in Criminal Appeal No. 81 of 1960). Ram Lal Anand and S. N. Anand, for respon- dent No. 1 (in Criminal Appeal No. 81 of 1960).

B.S. Gheba, for respondent No. 2 (in Criminal Appeal No. 81 of 1960).

1961. April 24. The Judgment of the Court was delivered by SUBBA RAO, J.-These two appeals-one led by accused No. 1 by certi cate and the other led by the State of Maha- rashtra by special leave-against the judgment of the High Court of Bom- bay con rming the conviction and sentence of accused No. 1 and setting aside the convictions and sentences of accused Nos. 2 and 3.

The prosecution case may be brie y stated. There was a depot called the Dehu Vehicle Depot in which military stores were kept. In the year 1944 Col. Rao, the Chief Ordnance O cer, was in charge of the Depot; Col. Sindhi, the Station Commandant, and Brig. Wilson, the Brigadier, Ordnance, Southern Com-

mand, were his superior o cers. Ac- cused No. 1, Major Barsay, was sec- ond in command in the Depot and was in charge of stores section; he was subordinate to Col. Rao. Ma- jor Nag, another subordinate to Col. Rao, was in charge of the administra- tion of the Depot. One Capt. Pratap Singh was the Security O cer in the Depot; but, during the period in question, one Lawrence was acting as the Security O cer in place of Capt. Pratap Singh. Kochhar, accused No. 2, who was on leave from October 25, 1954, was recalled to duty by accused No. 1 and was put in charge of kit stores in the Depot. Avatar singh, accused No. 3, who was working in the Unit Sub Park, was transferred to the Kit Stores by accused No. 1 during the absence on leave of Col. Rao. Accused No. 4, Saighal, was an Ex-Col. and was at one time the Station Commandant of the Depot; after retirement he had been stay- ing in a bungalow at a short distance from mile No. 92/7 on the Poona- Bombay Road. Accused No. 5, Ram- chand Gangwani, was a refugee from Sind and he was running a hotel at Lonnavala. Accused No. 6, De- vichand, and one Khemchand, who is absconding, are sons of accused No. 5. Accused Nos. 4 and 5 were friends and they were also partners along with one Bhagwan Parshuram of Bombay in \The Bombay Lon- avala Disposal Syndicate". There were large consignments of Kits in Shed No. 48 of Kit Stores which were unitemized and unaccounted for in the books of the Depot. The accused entered into a conspiracy to smuggle out some of the said stores and to

5

make an illegal gain by selling them at Bombay through accused No. 4.

The brain behind the conspir- acy was accused No. 1. The plan chalked out to implement the ob- ject of the conspiracy may be brie y stated. Col. Rao was to proceed on leave sometime in December 1954 and Maj. Barsay, being the next in command, was naturally to succeed him as Chief Ordnance O cer of the Depot during the absence on leave of Col. Rao. The smuggling of the goods out of the Depot was there- fore arranged to take place during the period when Maj. Barsay was acting as the Chief Ordnance O - cer of the Depot. Col. Rao went on leave from December 11, 1954. Kochhar, the second accused, who was in charge of the Fit- Park, pro- ceeded on two months' leave of ab- sence with e ect from October 25, 1954, but he was recalled by accused No. 1 and posted as o cer in charge of Kit Stores on November 25, 1954. Accused No. 3, Avatar Singh, was working in the Unit Sub Park, and he too was shifted from there to the Kit Stores on or about November 22, 1954. These two, postings were made by accused No. 1 without the con- sent or knowledge of Col. Rao when he had gone to Delhi on some tempo- rary duty for ten days from Novem- ber 20, 1954 to November 30, 1954. On the night of December 1, 1954, there was a theft of various articles in the Unit Park of the Depot. Ac- cused No. 1 called in Lawrence, the acting Security O cer, ostensibly to discuss with him certain matters re- garding the theft. During the course

of the conversation accused No. 1 suggested to Lawrence that valuable stores in Shed No. 48 might be smug- gled out and the large amounts ex- pected to be realized from their sale might be shared between the conspir- ators, including Lawrence. Presum- ably to put him in a suitable frame of mind to accept the suggestion to be- come a conspirator, he also hinted to Lawrence that Col. Rao suspected that he (Lawrence) had a hand in the theft. The scheme outlined by accused No. 1 was con rmed by ac- cused No. 2 a few days later. Accord- ing to the plan chalked out by Maj. Barsay, he was to appoint a board of o cers for itemization of \Spe- cialist Boxed Kits" in Shed No. 17 and once the board started function- ing there would be shuttle of trucks moving from Shed No. 48 to Shed No. 17 and vice versa and during the movements of those trucks two or three trucks loaded with valuable stores were to be moved out through the main gate of the Depot on the pretext of being back-loaded to the Return Stores Sub-Depot. He was also to take Col. Rao to Shed No. 48 and explain to him that the boxes contained very few items so that he too, on his return from leave, would not be surprised at the nal result of the itemization. It was also agreed that the scheme should be pushed through tentatively on December 16, 17 and 18, 1954. But, for one rea- son or other, it could not be pushed through during those days, as Capt. Kapoor was frequently visiting the scene of itemization.

On December 18, 1954, a meet-

6 Major E. G. Barsay v. The State Of Bombay 1961

ing took place at Maj. Barsay's bun- galow and accused Nos. 1 to 4 and Lawrence attended that meeting. At that meeting the details of working out the plan to be carried out on December 20, 1954, were nalized. Kochhar reported to the conspirators that he had briefed Jamadar Kun- danlal, and Lawrence told them that, as per Kochhar's suggestion, he had already detailed Jamadar Kundanlal on day duty at the main gate during the next week. Maj. Barsay agreed to get a driver of his con dence de- tailed on one of the trucks to be al- lotted to the Kit Stores and he of- fered to give orders to Kochhar on the morning of December 20, 1954, in the presence of all, to transfer the itemized kits to Shed No. 26 osten- sibly for the purpose of conditioning and preservation. That would enable accused No. 3, Avatar Singh, to load the stores from Shed No. 17. Therst trip was to be of ordinary stores in which the conspirators were not in- terested and the second trip was to be of valuable stores which were to be smuggled out of the gate. Maj. Barsay also undertook to call Maj. Nag to his o ce on December 20, 1954 and issue orders in the presence of Maj. Nag to Lawrence to go to Dehu Ordnance Depot (D.O.D.) and get the re hoses which were sent there for repairs. Kochhar agreed to prepare a bogus voucher on Mon- day (December 20, 1954) morning, and Lawrence undertook to provide a bogus gate-pass. Accused No. 4, Saighal, agreed to keep a lorry and some laborers present near his bun- galow for transshipping the stores.

On the evening of December 19, 1954, Lawrence went to the house of Saighal and the latter showed him the spot where the stores were to be transshipped. Thereafter, after tak- ing his dinner, Lawrence went to the Depot at 9 p.m. The Orderly O - cer at the Depot, one Shrinivasan, in- formed Lawrence that Jamadar Kun- danlal, who was to have been on duty at the main gate on December 20, 1954, was sick and had taken 3 days' leave of absence on medical grounds and that Maj. Barsay had sent a chit to him asking him to send Lawrence to the bungalow of Maj. Barsay. Lawrence went to the bungalow of Maj. Barsay, but could not meet him; and then Lawrence went to the residence of Jamadar Kundanlal and tried to persuade him to attend to his duty at the main gate on December 20, 1954.

On December 20, 1954, at about 9.15 a.m. Maj. Barsay called Haval- dar Pillay to his o ce and asked him to allot a new vehicle to the Kit Stores and to detail driver Ram- ban on that vehicle. Havaldar Pil- lay did accordingly. At about 10 a.m., Maj. Barsay called Maj. Nag and Lawrence to his o ce and, in the presence of Maj. Nag, he is- sued orders to Lawrence to go to Dehu Ordnance Depot (D.O.D.) per- sonally and get the re hoses. After Maj. Nag left the place, Lawrence told Maj. Barsay that Jamadar Kun- danlal had reported himself to be sick and had taken leave of absence and that one Godse was at the main gate. Maj. Barsay suggested to Lawrence that 26 Jamadar Jogendrasingh may

7

be put at the main gate in place of Godse, and he informed him that he had xed upon Ramban as the driver of the vehicle in which the stores were to be smuggled out. At about 11 a.m. Lawrence met Maj. Barsay and Kochhar near, Shed No. 48 and was told by Maj. Barsay that the scheme was to proceed according to schedule. Kochhar and Lawrence then went to Shed No. 17 where Avatar Singh, accused No. 3, was present. Kochhar told Avatar Singh that he had not prepared any voucher as it was not necessary. Lawrence had brought an old gate-pass with him and he handed over the same to Avatar Singh. Truck No. D. D. 5963 was, in the rst instance, loaded with ordinary stores and was sent to Shed No. 26. In the mean- while, Lawrence went to the Depot and asked Godse to take over at the Unit Sub Park gate and he ordered Jamadar Jogendrasingh to take over from Godse at the main gate. As Ja- madar Jogendrasingh refused to ac- cept the gate-pass to be produced by the driver and pass out the vehi- cle without making an entry regard- ing the same in the \Vehicles In and Out Register", Lawrence gave him a written order to that e ect with in- structions not to show or hand over that written order to anybody ex- cept himself on his return or to Maj. Nag. At about 1 p.m. Maj. Barsay told Lawrence that he had become apprehensive of the scheme succeed- ing, as he had seen the Station Com- mandant's car near the Barrack Of-ce and, therefore, he told him not to take out the vehicle till that car had gone out. Lawrence agreed and

went to Shed No. 17 where Avatar Singh was present, and Avatar Singh got the truck loaded and handed over the bogus gate-pass and the duty- slip of the vehicle to Ramban, and he also asked Lawrence to get into the truck there itself instead of near the main gate as per the plan. Af- ter Lawrence got into the truck, it proceeded towards the main gate at about 1.40 p.m. At the main gate, Ramban gave the duty-slip of the ve- hicle and also the bogus gate-pass to Jamadar Jogendrasingh and the lat- ter told Lawrence that Maj. Barsay had left a message for him \not to do it on that day". Lawrence, ignor- ing the said directions, took the ve- hicle out of the gate. At a spot near Talegaon there was a civilian lorry bearing No. BYL 3289 kept ready by accused Nos. 4, 5 and 6 for trans- shipping the stores, and to that place the truck was driven. The two lor- ries were parked back to back, and accused No. 6. and the abscond- ing accused Khemchand and two oth- ers started transshipping the stores from the military lorry to the civilian lorry. At that stage, the police o - cers appeared at the scene and pre- vented further ful llment of the plan of the accused.

It is a further case of the prosecu- tion that Lawrence ostensibly joined the conspiracy with a view to bring to book the culprits and was inform- ing the superior o cers and the po- lice orally and in writing from time to time as and when the important events were taking place.

As some argument was made on the basis of the charges, it would

8 Major E. G. Barsay v. The State Of Bombay 1961

be convenient at this stage to read the charges framed by the Special Judge, Poona. The charges are: (1) That you accused No. 1 Major E. G. Barsay, when o ciating as Chief Ordnance O cer, D. U. V. and you accused No. 2, H. S. Kochhar, when posted as Civilian Group O cer, D. U. V., and you accused No. 3, Avatar Singh Seva Singh, then working as Civilian Stores Keeper, D. U. V., and you accused No. 4, W. S. Saighal, released Lt. Col., and you, accused No. 5, Ramchand Pahlajrai Gan- gawani, and you accused No. 6, De- viprasad Ramchand Gangawani and the absconding accused Khemchand between about October 1954 and De- cember 1954 were parties to a crim- inal conspiracy at Dehu Road area by agreeing to do certain illegal acts to wit: Firstly, dishonestly or fraudu- lently fraudulently misappropriate or otherwise convert to your own use the Military Stores lying in the Ve- hicle Depot, Dehu Road and which was entrusted or was in-charge of Major E. G. Barsay, H. S. Kochhar, and Avatar Singh Seva Singh and which was also under their control, as public servants; Secondly, to ob- tain by corrupt or illegal means for yourselves or for any other persons such stores which amounts to abus- ing their position as public servants i.e., the co-conspirators; Thirdly, to commit illegal acts of committing theft or receiving of stolen property and the above said illegal acts were done in pursuance of the said agree- ment and that you have thereby com- mitted an o ence punishable under Section 120-B of the Indian Penal Code and within my cognizance. (2)

That you accused Nos. 1, 2, 3,4, 5, 6 and another (Khemchand Ramchand Gangawani), between about Octo- ber 1954 and December 1954 in pur- suance of the above said conspiracy jointly and in furtherance of the com- mon intention of all of you, you ac- cused No. 1, Major Barsay, O ciat- ing Chief Ordnance O cer, and you accused No. 2, H. S. Kochbar, Civil- ian Group O cer, D. U. V., and you accused No. 3, Avatar Singh Seva Singh, Civilian Store Keeper, and you accused No. 4, W. S. Saighal, released Lt. Col., and you accused No. 5, Ramchand Pahalajrai Gan- gawani, and you accused No. 6, De- viprasad Ramchand Gangawani, did on 20th of December 1954, dishon- estly or fraudulently his. appropriate with a common intention or convert for your own use Government prop- erty in the form of Military Stores de- scribed in detail in Schedule 'A' ap- pended herewith, entrusted to or un- der the control of the rst three ac- cused, namely, Major E. G. Barsay, H. S. Kochhar and Avatar Singh Seva Singh, who were public servants and thereby committed an o ence un- der Section 5(1)(c), punishable un- der section 5(2), of the Prevention of Corruption Act, read with Section 34 of the Indian Penal Code and within my cognizance. (3) That you accused Nos. 1, 2,3, 4, 5, 6 and the ab- sconding accused Khemchand Ramc- hand Gangawani, in pursuance of the above said conspiracy, jointly and in furtherance of the common intention of all of you, did by corrupt or ille- gal means by abusing their position as public servants, obtained for your- selves or for any other persons, the

9

valuable things in the form of Mili- tary Stores detailed out in Schedule 'A' appended herewith, and this act 205 constitutes an o ence under Sec- tion 5(1)(d) of the Prevention of Cor- ruption Act, punishable under Sec- tion 5(2) of the said Act read with Section 34 of the Indian Penal Code and within my cognizance.

(4) That you accused Nos. 1, 2, 3, 4,5, 6, along with the abscond- ing accused, Khemchand Ramchand Gangawani, did on 20th of December 1954, in pursuance of the above said conspiracy jointly and in furtherance of the common intention of all of you, dishonestly or fraudulently re- move the Military stores described in detail in Schedule 'A' appended here- with from the Dehu Road Depot and this act constitutes an o ence pun- ishable either under Section 381 or 411 of the Indian Penal Code, read with Section 34 of the Indian Penal Code and within my cognizance.

The main defence of the accused was that, in view of the thefts going on in the Depot, the reputation of Lawrence, the Security O cer, was at the lowest ebb, that in order to resurrect his reputation and to in- gratiate himself into the good books of his superiors, he concocted the scheme of huge fraud and implicated therein the accused, including the Acting Chief Ordnance O cer of the Depot. Shortly stated, the defence was that all the accused were inno- cent and that it was Lawrence that \abducted" the truck with the stores, made false statements to the supe- rior o cers from time to time giving concocted versions to t in with the

theory of conspiracy.

The Special Judge, on a consid- eration of the evidence, held that all the charges were made out against the accused. He rejected the tech- nical objections raised in regard to the framing of the charges, the valid- ity of the investigation made by the investigating o cer and the sanction given by the Central Government for the prosecution of the accused, and came to the conclusion that prima facie there was no good ground to discard the evidence of Lawrence, but he placed the said evidence in the category of interested evidence and required independent corrobora- tion before acceptance. In the words of the learned Special Judge, \Shri Lawrence's evidence can, therefore, be accepted and relied upon, only if it is corroborated by other indepen- dent evidence and circumstances in the case." He found ample evidence and circumstances corroborating the evidence of Lawrence. After consid- ering the entire evidence, he came to the following conclusion: \The above discussion of the evidence on record and the circumstances in the case makes it abundantly clear that the prosecution has been able to prove beyond a reasonable doubt that ev- ery one of these six accused did com- mit overt acts in furtherance of the criminal conspiracy alleged against them."

He held that accused Nos. 1 to 6 were guilty of the principal o ence charged against them and convicted all of them under s. 120-B of the In- dian Penal Code and s. 5(2) of the Prevention of Corruption Act, 1947,

10 Major E. G. Barsay v. The State Of Bombay 1961

read with B. 34 of the Indian Pe- nal Code. He gave varying sentences of imprisonment and ne to the ac- cused. The accused preferred ve ap- peals to the High Court against their convictions and sentences.

A division bench of the Bombay High Court which heard the appeals set aside the conviction of accused Nos. 2, 3, 5 and 6, but con rmed those of accused' Nos. 1 and 4. The High Court also rejected all the technical objections raised at the in- stance of the appellant-accused in re- gard to some parts of 2nd, 3rd and 4th charges. In regard to the 2nd and 3rd head sub-charges, tile High Court accepted the plea that accused Nos. 4, 5 and 6 could not be charged with having committed an o ence under s. 5(1)(c) and s. 5(1)(d) of the Prevention of Corruption Act, as they were not public servants; but they held that it would be proper to frame a charge against them under s. 109 of the Indian Penal Code for having abetted the commission of the o ence of criminal misconduct under s. 5(1)(c) and (d) of the Prevention of Corruption Act, committed by ac- cused Nos. 1 to 3. As the High Court held that they were not prejudiced by the irregularity of the charge, it altered the charge to one under s. 109 of the Indian Penal Code, read with s. 5(1)(c) and (d) of the Pre- vention of Corruption Act. As re- gards the last head of the charge, it held that all the accused could not be charged with having committed an o ence under s. 381 of the Indian Pe- nal Code and that the charge under s. 411 of the Indian Penal Code would

also appear to be improper so far as accused Nos. 1 to 3 were concerned; but it held that so far as accused Nos. 4, 5 and 6 were concerned, the charge under s. 411, read with s. 34, Indian Penal Code, would be quite proper.

Before the High Court, learned counsel appearing on behalf of the accused and the special counsel, Mr. Amin, appearing on behalf of the State, asked the Court to proceed to examine the evidence of Lawrence on the basis that he was a decoy and a trap witness. The High Court agreed with the learned Special Judge that the evidence of Lawrence would, have to be treated on par with that of a trap witness and that it would be in- advisable to rely upon the said ev- idence without independent corrob- oration. It also pointed out that the corroboration required was not a corroboration of every particular in respect of which the accomplice or the approver gave his evidence, but the corroboration must be such as to make the court believe that the evi- dence of the accomplice was a truth- ful one and that it would be safe to act upon that evidence. Finally the High Court premised its discussion of the evidence in the following words: \In our opinion, all these decisions would clearly establish that it would not be safe to rely on the evidence of Lawrence who is admittedly a de- coy or trap witness, without his tes- timony being corroborated from in- dependent sources."

Then the learned Judges of the High Court considered the evidence of Lawrence minutely, discarded some parts of the evidence which

11

were discrepant or inconsistent with other proved facts and accepted the broad story of conspiracy given by him as true to the extent it was corroborated by other unimpeach- able pieces of evidence and circum- stances. After elaborately consider- ing the evidence of Lawrence, the learned Judges of the High Court came to the following conclusion: \We, therefore, accept Lawrence's evidence, nd that his story is proba- ble and true and we also nd that the evidence on the record justi ed thending of the trial Court that there was a conspiracy as alleged by the prosecution to smuggle goods out of the Dehu Vehicles Depot."

Then the learned Judges consid- ered the question as to which of the accused took part in the conspir- acy. As regards accused No. 1, they came to the conclusion that there was cogent evidence to implicate him in the conspiracy, and in that view, they con rmed the nding of the trial court that he was a party to the conspiracy to smuggle military goods out of the Depot. As regards ac- cused No. 2, they held that the evi- dence was not su cient to establish that he was a member of the alleged conspiracy and that, as he could not be held to be a member of the con- spiracy, he could not also be held to be guilty of committing criminal misconduct under s. 5(1)(c) and (d) of the Prevention of Corruption Act, 1947. As regards accused No. 3, they were of the opinion that the case against him was not established be- yond reasonable doubt and that he could not be held to be guilty of

criminal conspiracy as well as crimi- nal misconduct. As regards accused No. 4, they accepted the nding of the learned Special Judge, as inde- pendent acceptable evidence corrob- orated the evidence of Lawrence in respect of this accused. So far as ac- cused Nos. 5 and 6 were concerned, they found the evidence to be very weak and therefore set aside the con- victions and sentences passed against them. In the result, they con rmed the convictions and sentences of ac- cused Nos. 1 and 4, and set aside those of accused Nos. 2, 3, 5 and 6.

It appears that accused No. 4 died after the appeal was disposed of by the High Court. Accused No. 1 preferred Criminal Appeal No. 2 of 1958 against his conviction and sentence passed by the High Court and the State preferred Criminal Ap- peal No. 81 of 1960 challenging the correctness of the order of acquittal made in respect of accused Nos. 2 and 3.

We shall rst take the appeal led by accused No. 1. Learned coun- sel for the appellant raised before us all the technical points which he unsuccessfully raised before the Spe- cial Judge as well as before the High Court. At the outset we shall deal with the said contentions before con- sidering the arguments advanced on the merits of the case.

The rst contention of learned counsel for the appellant is that the Special Judge, Poona, had no juris- diction to take cognizance of the of- fences with which the accused were charged and that they should have been tried only by a court martial

12 Major E. G. Barsay v. The State Of Bombay 1961

under the Army Act.

The argument of learned coun- sel for the appellant may be brie y stated thus: The Army Act, 1950 (46 of 1950) created new o ences. Section 52 of the said Act created o ences with which accused in the present case were charged, and pro- vided a new machinery, namely, a court martial, to try persons com- mitting the said o ences. Therefore by necessary implication the trial of the said o ences was excluded from the jurisdiction of ordinary criminal courts. This argument was sought to be reinforced by the provisions of s. 69 of the Army Act whereun- der, it was said, by a ction, o ences committed by army personnel which were triable by ordinary courts were to be deemed to be o ences commit- ted against the said Act. That dif- ference between o ences against the Army Act and the o ences deemed to be committed against the Army Act, the argument proceeded, was an un- failing clue for the true construction of the pro- visions of the Army Act in that the o ences under the rst cate- gory were exclusively triable by court martial and the o ences; of the latter category were subject to concurrent jurisdiction of two courts. The logi- cal conclusion from this premises, it was said, was that the provisions de- signed to resolve con ict of jurisdic- tion related only to the second cate- gory of o ences. Assuming that the said contention was wrong, it was ar- gued, s. 126 of the Army Act is peremptory in its language, namely, that a criminal court shall not have jurisdiction to try an o ence 27 de-

ned under the Army Act, unless the conditions laid down therein were strictly complied with, that is, unless requisite notice is given to the o cer referred to in s. 125 of the Act.

To appreciate the said argument it is necessary to scrutinize the provi- sions of the Army Act in some detail. Section 2 describes the di erent cate- gories of army personnel who are sub- ject to the Army Act. Section 3(ii) de nes \civil o ence" to mean \an o ence which is triable by a criminal court"; a. 3(vii) de nes \court mar- tial" to mean \a court martial held under this Act"; s. 3(viii) de nes \criminal court" to mean \a court of ordinary criminal justice in any part of India, other than the State of Jammu and Kashmir"; s. 3(xvii) de-nes \o ence" to mean \any act or omission punishable under this Act and includes a civil o ence"; and s. 3(xxv) declares that \all words and expressions used but not de ned in this Act and de ned in the Indian Pe- nal Code shall be deemed to have the meanings assigned to them in that Code." Chapter VI is comprised of ss. 34 to 70. The heading of the Chapter is \O ences". As we have already noticed, the word \o ence" is de ned to mean not only any act or omission punishable under the Army Act, but also a civil o ence. Sections 34 to 68 de ne the o ences against the Act triable by court martial and also -give the punishments for the said o ences. Section 69 says that any person subject to the Act who at any Place in or beyond India com- mits any civil o ence shall be deemed to be guilty of an o ence against the

13

Act and, if charged therewith under this section, shall be liable to be tried by a court martial and, on convic- tion, be punishable as provided for the o ence under any law in force in India or such less punishment as is in the Act mentioned. Under s. 70,

\ A person subject to this Act who commits an o ence of murder against a person not subject to mil- itary, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an o ence against this Act and shall not be tried by a Court mar- tial." There are three exceptions to this section with which we are not concerned now. Shortly stated, un- der this Chapter there are three cat- egories of o ences, namely, (1) of- fences committed by a person subject to the Act triable by a court mar- tial in respect whereof speci c pun- ishments have been assigned; (2) civil o ences committed by the said per- son at any place in or beyond India, but deemed to be o ences committed under the Act and, if charged under s. 69 of the Act, triable by a court martial; and (3) o ences of murder and culpable homicide not amount- ing to murder or rape committed by a person subject to the Act against a person not subject to the military law. Subject to a few exceptions, they are not triable by court mar- tial, but are triable only by ordinary criminal courts. The said categori- sation of o ences and tribunals nec- essarily bring about a con ict of ju- risdiction. Where an o ence is for

the rst time created by the Army Act, such as those created by ss. 34, 35, 36, 37 etc., it would be exclu- sively triable by a court martial; but where a civil o ence is also an of- fence under the Act or deemed to be an o ence under the Act, both an ordinary criminal court as well as a court martial would have jurisdiction to try the person committing the of- fence. Such a situation is visualized and provided for by as. 125 and 126 of the Act. Under s. 125, \When a criminal court and a court martial have each jurisdiction in respect of an o ence, it shall be in the discre- tion of the o cer commanding the army, army corps, division or inde- pendent brigade in which the accused person is serving or such other o cer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that o cer decides that they should be instituted before a court martial, to direct that the ac- cused person shall be detained in mil- itary custody."

Under a. 126(1) of the Act, \When a criminal court having ju- risdiction is of opinion that proceed- ings shall be instituted before itself in respect of any alleged o ence, it may, by written notice, require the o cer referred to in section 125 at his option, either to deliver over the of- fender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Govern- ment."

Clause (2) of that section says that, \In every such case the said of-cer shall either deliver over the of-

14 Major E. G. Barsay v. The State Of Bombay 1961

fender in compliance with the req- uisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be nal." Section 125 presupposes that in respect of an of- fence both a criminal court as well as a court martial have each concur- rent jurisdiction. Such a situation can arise in a case of an act or omis- sion punishable both under the Army Act. as well as under any law in force in India. It may also arise in the case of an o ence deemed to be an o ence under the Act. Under the scheme of the said two provisions, in the rst instance,, it is left to the discretion of the o cer mentioned in s. 125 to decide before which court the pro- ceedings shall be instituted, and, if the o cer decides that they should be instituted before a court martial, the accused person is to be detained in military custody; but if a criminal court is of opinion that the said of- fence shall be tried before itself, he may issue the requisite notice under s. 126 either to deliver over the of- fender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Govern- ment. On receipt of the said requi- sition, the o cer may either deliver over the o ender to the said court or refer the question of proper court for the determination of the Central Government whose order shall be - nal. These two sections provide a satisfactory machinery to resolve the con ict of jurisdiction, having regard to the exigencies of the situation.

What is more, s. 127 of the Army Act provides for successive trials by court martial and by criminal court in respect of the same o ence. Under sub-s. (1) of that section, \A per- son convicted or acquitted by a court martial may, with the previous sanc- tion of the Central Government, be tried again by a criminal court for the same o ence, or on the same facts." But sub-s. (2) thereof imposes a lim- itation in the matters of punishment; for, under that sub-section, the crim- inal court shall, in awarding punish- ment, have regard to the punishment the o ender may already have un- dergone for the said o ence. The scheme of the Act, therefore, is self- evident. It applies to o ences com- mitted by army personnel described in s. 2 of the Act; it creates new o ences with speci ed punishments, imposes higher punishments to pre- existing o ences, and enables civil of- fences by a ction to be treated as o ences under the Act; it provides a satisfactory machinery for resolving the con ict of jurisdiction. Further it enables, subject to certain condi- tions, an accused to be tried succes- sively both by court martial and by a criminal court. It does not expressly bar the jurisdiction of criminal courts in respect of acts or omissions pun- ishable under the Act, if they are also punishable under any other law in force in India; nor is it possible to in- fer any prohibition by necessary im- plication. Sections 125, 126 and 127 exclude any such inference, for they in express terms provide not only for resolving con ict of jurisdiction be- tween a criminal court and a court martial in respect of a same o ence,

15

but also provide for successive trials of an accused in respect of the same o ence.

Now let us apply this legal posi- tion to the facts of the case. Under s. 52 of the Act, any person sub- ject to the Act who commits theft of any property belonging to Govern- ment or to any military, naval or air force mess, band or institution, or to any person subject to military, naval or air force law, or dishonestly mis- appropriates or converts to his own use any such property, or commits criminal breach of trust in respect of any such property, or does any other thing with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person shall, on conviction by court mar- tial, be liable to su er imprisonment for a term which may extend to ten years or such less punishment as is in the act mentioned. Section 2 (xxv) says that all words and expressions used but not de ned in the Army Act and de ned in the Indian Penal Code shall be deemed to have the mean- ings assigned to them in that Code. The section does not create new of- fences, but prescribes higher punish- ments if the said o ences are tried by a court martial. The appellant and the other accused were charged in the present case, among others, for having been parties to a criminal conspiracy to dishonestly or fraud- ulently misappropriate or otherwise convert to their own use the mili- tary stores and also for dishonestly or fraudulently misappropriating the same. The said acts constitute of- fences under the Indian Penal Code

and under the Prevention of Corrup- tion Act. They are also o ences un- der s. 52 of the Army Act. Though the o ence of conspiracy does not fall under s. 52 of the Act, it, being a civil o ence, shall be deemed to be an o ence against the Act by the. force of s. 69 of the Act. With the re- sult that the o ences are triable both by an ordinary criminal court having jurisdiction to try the said o ences and a court martial. To such a situ- ation ss. 125 and 126 are clearly in- tended to apply. But the designated o cer in s. 125 has not chosen to ex- ercise his discretion to decide before which court the proceedings shall be instituted. As he has not exercised the discretion, there is no occasion for the criminal court to invoke the provisions of s. 126 of the Act, for the second part of s. 126(1), which enables the criminal court to issue a notice to the o cer designated in s. 125 of the Act to deliver over the of- fender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Govern- ment, indicates that the said subsec- tion presuppose, that the designated o cer has decided that the proceed- ings shall be instituted before a court martial and directed that the accused person shall be detained in military custody. If no such decision was ar- rived at, the Army Act could not ob- viously be in the way of a criminal court exercising its ordinary jurisdic- tion in the manner provided by law. The correct approach to the prob- lem may be stated thus: The ap- pellant and the other accused have committed o ences under the Indian Penal Code and the Prevention of

16 Major E. G. Barsay v. The State Of Bombay 1961

Corruption Act. By reason of s. 7 of the Criminal Law (Amendment) Act, 1952, the said o ences are tri- able by a special judge appointed un- der that Act. The special judge so appointed would have jurisdiction to try the said o ences unless the Army Act expressly, or by necessary impli- cation, excluded the o ences alleged to have been committed by the ap- pellant and others from the jurisdic- tion of that court. The aforesaid dis- cussion of the provisions of the Army Act indicates that there is not only no such exclusion but also that there is clear and unambiguous indication to the contrary.

An argument advanced by learned counsel for the appellant in this context may conveniently be noticed at this stage. The second branch of the argument of learned counsel for the appellant under this head is based upon s. 549 of the Code of Criminal Procedure. Under that section, \The Central Government may make rules, consistent with this Code and the Army Act............... as to the cases in which persons subject to military, naval or air-force law shall be tried by a court to which this Code applies, or by Court Mar- tial"................ . The Central Gov- ernment made rules in exercise of the power conferred on it under this sec- tion. No rule was made prescribing that the o ences with which we are now concerned shall be tried only by a court martial. But reliance is made on r. 3 which reads:

\Where a person subject to mili- tary, naval or air-force law is brought before a Magistrate and charged with

an o ence for which he is liable to be tried-by a Court Martial, such Magistrate shall not proceed to try such person or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any o ence triable by such Court, unless,

(a) he is of opinion, for reasons to be recorded, that he should so pro- ceed without being moved thereto by competent military, naval or air-force authority; or (b) he is moved thereto by such authority." This rule obvi- ously cannot apply unless the Special Judge constituted under the Crim- inal Law (Amendment) Act, 1952, is a magistrate within the meaning of that rule. A special judge is ap- pointed under s. 6(1) of the Criminal Law (Amendment) Act to try the of- fences speci ed therein. Section 6(2), of that Act lays down that \A per- son shall not be quali ed for appoint- ment as a special judge under this Act unless he is, or has been, a ses- sions Judge or an additional sessions Judge or an assistant sessions Judge under the Code of Criminal Proce- dure, 1898 (V of 1898)." Section 8(1) of the said Act says,

\A Special Judge may take cog- nizance of o ences without the ac- cused being committed to him for trial, and in trying the accused per- sons, shall follow the procedure pre- scribed by the Code of Criminal Pro- cedure, 1898 (Act V of 1898), for the trial of warrant cases by magis- trates."

Under sub-s. (3) thereof,

\Save as provided in sub-section

17

(1) or sub- section (2), the provisions of the Code of Criminal Procedure, 1898, shall, so far as they are not in- consistent with this Act, apply to the proceedings before a Special Judge; and for the purpose of the said provi- sions, the Court of the Special Judge shall be deemed to be a Court of ses- sion trying cases without a jury or without the aid of assessors and the person conducting a prosecution be- fore a special judge shall be deemed to be a public prosecutor." Under s. 9 of the said Act,

\The High Court may exercise, so far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, 1898 (Act V of 1898), on a High Court as if the Court of a Spe- cial Judge were a Court of session trying cases without a jury within the local limits of the jurisdiction of the High Court."

These provisions equate a spe- cial judge with a sessions judge, and the provisions of the Code of Crim- inal Procedure applicable to a ses- sions judge, in so far as they are not inconsistent with the Act, are made applicable to a special judge. But it is said that s. 8(1) of the Act puts him on par with a mag- istrate and therefore r. (3) of the rules framed under s. 549 which applies to a magistrate equally ap- plies to a special judge. This argu- ment overlooks the limited purpose for which s. 8(1) is enacted. Sec- tion 8 of the Criminal Law (Amend- ment) Act makes a distinction be- tween the power of a special judge to take cognizance of an o ence and

the procedure to be followed by him in trying the case. In trying accused persons, he is enjoined to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by magistrates. The warrant procedure is incorporated in the Act by reference to the Code of Criminal Procedure. Chapter XXI of the Code of Criminal Procedure pro- vides the procedure for the trial of warrant cases; and s. 549 is not one of the sections in that Chapter. Nor does it empower the Central Gov- ernment to make rules modifying the warrant procedure. That apart, can it be said that, by reason of the pro- cedure to be followed by the special judge, he would be a magistrate em- powered to try such a person within the meaning of r. (3)? Section 8(1) of the Criminal Law (Amendment) Act maintains a clear distinction between jurisdiction and the procedure. It is, therefore, not possible to hold that a special judge is a magistrate within the meaning of r. (3). If so, it fol- lows that r. (3) has no application to the trial of an army personnel by a special judge.

There is a more formidable ob- stacle in the way of learned counsel's argument. Section 7 of the Criminal Law (Amendment) Act, 1952, reads:

\Notwithstanding anything con- tained in the Code of Criminal Pro- cedure, 1898 (Act V of 1898) or in any other law the o ences speci ed in subsection (1) of section 6 shall be triable by special Judges only."

Doubtless the Army Act is com- prehended by the words \any other law". The o ences with which we

18 Major E. G. Barsay v. The State Of Bombay 1961

are now concerned are certainly of- fences speci ed in sub-s. (1) of s. 6 of the Criminal Law (Amendment) Act. The non obstante clause in s. 7 clearly confers jurisdiction to try per- sons committing the said o ences on a special judge. But it is contended that the Army Act is a special Act and therefore s. 7 found in the gen- eral Act cannot take away the juris- diction conferred on a court martial in respect of the said o ences. That proposition of law may have some bearing when there is con ict of ju- risdiction arising out of a general Act and a special Act, without any spe- ci c exclusion of the jurisdiction in the general Act of that conferred un- der the special Act. But that prin- ciple may not have any relevance to a case where the general Act in ex- press terms confers jurisdiction on a particular tribunal in respect of spec- i ed o ences to the exclusion of any- thing contained in any other law. In such a situation, the intention of the Legislature is clear and unambigu- ous, and no question of applying any rule of interpretation would arise, for the rules of interpretation are evolved only to ascertain the intention of the Legislature.

It is contended that s. 7 confers an exclusive jurisdiction on a special judge only in regard to o ences spec- i ed in sub-s. (1) of s. 6 and that the said subsection does not comprise o ences under s. 52 of the Army Act. There is a fallacy underlying this argument. Certain acts commit- ted or omissions made by a person constitute o ences under s. 6(1) of the Criminal Law (Amendment) Act,

1952. Under s. 7 of the said Act, the said o ences are exclusively triable by a special judge. In the present case the accused were charged with having committed o ences expressly falling under B. 6 of the said Act and, therefore, the special judge had clearly jurisdiction to try the accused in respect of the said o ences. The mere fact that the said acts or omis- sions might also constitute an o ence under s. 52 of the Army Act would not be of any relevance, as jurisdic- tion was exclusively conferred on the special judge notwithstanding any- thing contained in any other law. If that be so, the special judge had exclusive jurisdiction to try o ences covered by s. 6 of the Criminal Law (Amendment) Act, 1952.

At this stage, another argument of learned counsel may be adverted to. He says that some of the o ences with which the accused are charged in the present case are not those enu- merated in s. 6 of the Criminal Law (Amendment) Act, 1952. This objec- tion is clearly answered by s. 7(b) of the said Act which says,

\When trying any case, a special judge may also try any o ence other than an o ence speci ed in section 6 with which the accused may, un- der the Code of Criminal Procedure, 1898, be charged at the same trial."

It is then argued that the prose- cution has failed to establish that the Central Government accorded sanc- tion to prosecute the appellant under s. 6(1) of the Prevention of Corrup- tion Act. Under s. 6(1)(a) of the Prevention of Corruption Act,

19

\No Court shall take cognizance of an o ence punishable under sec- tion 161 or section 164 or section 165 of the Indian Penal Code, or under subsection (2) of section 5 of this Act, alleged to have been commuted by a public servant, except with the previ- ous sanction-(a) in the case of a per- son who is employed in connection with the a airs of the Union and is not removable from his o ce save by or with the sanction of the Central Government, of the Central Govern- ment............

It is common case that the appel- lant was a public servant within the meaning of the said sub-section and, therefore, he cannot be prosecuted without the sanction of the Central. Government. The sanction given in this case for the prosecution of the appellant reads thus:

\ . . . . . . . . . . . . . . . . . . .

.

NOW, THEREFORE, THE CENTRAL GOVERNMENT doth hereby accord sanction under section 197 of the Criminal Procedure Code (Act V of 1898) and section 6(1)(a) of the Prevention of Corruption Act, 1947 (II of 1947) to the initiation of proceedings to prosecute in a Court of competent jurisdiction the said Major E. G. Barsay and Shri H. S. Kochhar in respect of the aforesaid o ences and other cognate o ences punishable under other provisions of law. Sd. M. Gopala Menon, Deputy Secretary to the Govt. of India."

Ex facie the said order giving the requisite sanction purports to have been issued in the name of the Cen-

tral Government and is signed by the Deputy Secretary to the Government of India in the Ministry of Home Af- fairs. P.W. 36, Dharambir, an Assis- tant in the Ministry of Home A airs, New Delhi, has given evidence in re- spect of this document. He says that the papers relating to the present case were submitted to the Home Ministry by the Inspector General of Police, Special Police Establishment, New Delhi, for obtaining the neces- sary sanction, that the papers were put up before the Deputy Secretary in that Ministry, that the Deputy Secretary was competent to accord sanction on behalf of the President, and that he gave the said sanction under his signature. In the cross- examination, this witness says that he cannot say whether the Deputy Secretary's signature was in his own right or by way of authentication of the President's order. This uncon- tradicted evidence clearly established that the Deputy Secretary was com- petent to accord sanction on behalf of the President and that he gave the sanction in exercise of the power con- ferred on him, presumably, under the rules framed by the President in this behalf. The statement made by this witness in the cross-examination is not inconsistent with that made by him in the examination-in-chief. The Deputy Secretary may have power to make some orders in his own right and also may have power to authenti- cate other orders issued in the name of the President. But in this case, this witness has clearly deposed that the Deputy Secretary had power to accord sanction in his own right and when the order giving the sanction ex

20 Major E. G. Barsay v. The State Of Bombay 1961

facie shows that he did not authen- ticate it by order of the President, we must hold that he gave the sanc- tion in his own right. In this con- text, an argument based upon Art. 77 of the Constitution may be no- ticed. Under cl. (1) of Art. 77, all executive actions of the Govern- ment of India shall be expressed to be taken in the name of the Presi- dent; and under cl. (2) thereof, or- ders and other instruments made and executed in the name of the Presi- dent shall be authenticated in such manner as may be speci ed in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. Under the General Clauses Act, the expres- sion \President" means the Central Government. It is, therefore, argued that as the order issuing the sanction was not expressed to be made in the name of the President, the sanction was void. This Article and the corre- sponding Article viz., Art. 166, were subject to judicial scrutiny by this Court. The validity of an order of detention made by the Bombay Gov- ernment under s. 3 of the Preventive Detention Act, 1950, was considered in The State of Bombay v. Purushot- tam Jog Naik (1). There, in the body of the order the \satisfaction" was shown to be that of the Government of Bombay; at the bottom of the order the Secretary to the Govern- ment of Bombay, Home Department, signed it under the words \By order of the Governor of Bombay". It was contended that the order was defec-

tive as it was not expressed to be in the name of the Governor within the meaning of Art. 166(1) of the Consti- tution and accordingly was not pro- tected by cl. (2) of the said Article. Adverting to this contention, Bose, J., speaking for the Court, said at p. 678:

\In our opinion, the Constitution does not require a magic incantation which can only be expressed in a set formula of words. What we have to see is whether the substance of the requirements is there."

This judgment lays down that we must look at the substance of the order. On a construction of the order that was in question in that case, having regard to the de nition of \State Government" in the Gen- eral Clauses Act and the conclud- ing words \By order of the Gover- nor of Bombay", the Court came to the conclusion that the order was ex- pressed to have been taken in the name of the Governor. In Datta- treya Moreshwar Pangarkar v. The State of Bombay (2), an (1) [1952] S.C.R. 674.(2) [1952] S.C.R. 612. or- der made under the Preventive De- tention Act, 1950, was questioned on the ground that it did not comply with the provisions of Art. 166(1) of the Constitution. There the order was made in the name of the Govern- ment and was signed by one Kharkar for the Secretary to the Government of Bombay, Home Department. Das, J., as he then was, after referring to the decision of the Federal Court in J. K. Gas Plant Manufacturing Co., (Rampur) Ltd. v. The King- Emperor (1) observed at p. 625 thus:

21

\Strict compliance with the re- quirements of article 166 gives an im- munity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with, the re- sulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself."

The learned Judge came to the above conclusion on the ground that the provisions of the said article are only directory and not mandatory. This decision was followed by this Court in P. Joseph John v. The State of Travancore-Cochin (2). There the \show cause notice" issued un- der Art. 311 of the Constitution was impugned on the ground that it was contrary to the provisions of Art. 166 thereof. The notice was issued on behalf of the Government and was signed by the Chief Secre- tary to the Government, who had under the rules of business framed by the Rajpramukh the charge of the portfolio of \service and appoint- ments" at the Secretariat level in the State. This Court held that the said notice was issued in substantial compliance with the directory pro- visions of Art. 166 of the Consti- tution. The latest decision on the point is that in Ghaio Mall & Sons v. The State of Delhi(1). There the question was whether the communi- cation issued by the Under Secretary, Finance, Government of Delhi State, had complied with the provisions of Art. 166 of the Constitution. This Court held that it did not comply with the provisions of

(1) (1947) F.C.R. 141. (2) [1935]

1 S.C.R. 1011. 223

Art 166 of the Constitution and also found that the said order was not, as a matter of fact, made by the Chief Commissioner. When the de- cision in Dattatreya Moreshwar Pan- garkar's case (1) was cited this Court observed at p. 1439 thus:

\In that case there was ample ev- idence on the record to prove that a decision had in fact been taken by the appropriate authority and the in-rmity in the form of the authentica- tion did not vitiate the order but only meant that the presumption could not be availed of by the State."

The foregoing decisions authori- tatively settled the true interpreta- tion of the provisions of Art. 166 of the Constitution. Shortly stated, the legal position is this: Art. 166(1) is only directory. Though an impugned order was not issued in strict com- pliance with the provisions of Art. 166(1), it can be established by ev- idence aliunde that the order was made by the appropriate authority. If an order is issued in the name of the Governor and is duly authenti- cated in the manner prescribed in r.

(2) of the said Article, there is an ir- rebuttable presumption that the or- der or instrument is made or exe- cuted by the Governor. Any non- compliance with the provisions of the said rule does not invalidate the or- der, but it precludes the drawing of any such irrebuttable presumption. This does not prevent any party from proving by other evidence that as a matter of fact the order has been made by the appropriate authority.

22 Major E. G. Barsay v. The State Of Bombay 1961

Article 77 which relates to conduct of business of the Government of India is couched in terms similar to those in Art. 166 and the same princi- ples must govern the interpretation of that provision.

If that be the legal position, in the instant case the impugned or- der does not comply with the pro- visions of Art. 77(2) of the Consti- tution and, therefore, it is open to the appellant to question the valid- ity of the order on the ground that it was not an order made by the Pres- ident and to prove that it was not made by the Central Government. But this legal position does not help the appellant, for as we have pointed out, the uncontroverted evidence of P. W. 36, an Assistant in the Home Ministry, which was accepted by the High Court and the Special Judge, establishes that the order was made by the Deputy Secretary on behalf of the Central Government in exercise of the power conferred on him un- der the rules delegating such power to him.

The next contention challenges the legal competence of Jog, an In- spector of Police in the Delhi Spe- cial Police Establishment, to make the investigation. In his evidence Jog stated that the Inspector General of Police, Special Police Establishment, New Delhi, empowered him under s. 5A of the Prevention of Corruption Act to investigate the o ences men- tioned therein without the sanction of any magistrate. The question is whether he can make an investigation in regard to the o ences alleged to have been committed by the accused

in the present case. Section 5A of the Prevention of Corruption Act, 1950, on which reliance is placed reads:

\Notwithstanding anything con- tained in the Code of Criminal Pro- cedure., 1898, no police o cer below the rank-

(a) in the presidency towns of Madras and Calcutta, of an assistant commissioner of police,

(b)in the presidency town of Bombay, of a superintendent of po- lice, and

(c) elsewhere, of a deputy super- intendent of police, shall investigate any o ence punishable under section 161, section 165 or section 165A of the Indian Penal Code or under sub- section (2) of section 5 of this Act, without the order of a presidency magistrate or a magistrate of the rst class, as the case may be, or make any arrest thereof without a warrant:

Provided that a police o cer of the Delhi Special Police Establish- ment, not below the rank of an In- spector of police, who is specially au- thorized by the Inspector-General of Police of that Establishment may, if he has reasons to believe that, on ac- count of the delay involved in obtain- ing the order of a magistrate of therst class, any valuable evidence re- lating to such o ence is likely to be destroyed or concealed, investigate the o ence without such order; but in every case where he makes such in- vestigation, the police o cer shall, as soon as may be, send a report of the same to a magistrate of the rst class, together with the circumstances in which the investigation was made."

23

The proviso governs the present case. Jog, who was specially au- thorized by the Inspector-General of Police under s. 5A of the Preven- tion of Corruption Act to investigate the o ences mentioned therein be- ing an Inspector of Police, was cer- tainly empowered to make an inves- tigation within the meaning of that proviso. But what is contended is that the power to investigate under that proviso is hedged in by two con- ditions, namely, that the said o cer should have reasons to believe that on account of delay involved in ob- taining the order of a magistrate of the rst class, any valuable evidence relating to such o ence is likely to be destroyed or concealed, and sub- sequently he should have sent a re- port of the same to a magistrate of the rst class together with the cir- cumstances in which the investiga- tion was made. The High Court on a consideration of the evidence found that the said two conditions have not been complied with by Jog. On thatnding, the question arises whether the trial of the accused by the Special Judge was vitiated by the non- com- pliance with the aforesaid two con- ditions. This Court in H. N. Rish- bud & Inder Singh v. The State of Delhi (1) held that s. 5(4) and pro- viso to s. 3 of the Prevention of Corruption Act, 1947, and the cor- responding s. 5A of the Prevention of Corruption (Second Amendment) Act, 1952 (LIX of 1952) are manda- tory and not directory and that an investigation conducted in violation thereof is illegal. In the same deci- sion this Court also pointed out that the illegality committed in the course

of investigation did not a ect the competence and jurisdiction of the court for trial and where cognizance of the case had in fact been taken and the case had proceeded to ter- mination the validity of the preced- ing investigation did not vitiate the result unless miscarriage of justice of been caused thereby. The ques- tion is whether in the present case the investigation made by the Inspec- tor duly authorized by the Inspector- General of Police to investigate under s. 5A of the Prevention of Corrup- tion Act, without complying with the two conditions laid down in the pro- viso to that section, had caused any prejudice to the accused. The High Court, after considering the entire evidence, found that the alleged ir- regularity would not justify the con- clusion that the non- observance of the conditions prescribed in the pro- viso to s. 5A of the Prevention of Corruption Act had occasioned any failure of justice. Learned counsel has taken us through di erent steps in the investigation made by the said o cer, and we have no reason to dif- fer from the conclusion arrived at by the High Court.

The validity of the investigation made by Jog was questioned yet on another ground. It was said that he had not obtained the requisite per- mission of the State Government un- der s. 6 of the Delhi Special Po- lice Establishment Act, 1946, before he started the investigation. Section 5 of that Act authorizes the Cen- tral Government to extend to any area the powers and jurisdiction of members of the Delhi Special Police

24 Major E. G. Barsay v. The State Of Bombay 1961

Establishment for the investigation of any o ences or classes of o ences speci ed in a noti cation under s. 3 thereof. But s. 6 of that Act says that nothing contained in s. 5 shall be deemed to enable any member of the Delhi Special Police Establish- ment to exercise powers and jurisdic- tion in any area in a State, not being a Union Territory or railways area, without the consent of the Govern- ment of that State. The Government of Bombay, Home Department, ad- dressed a letter to the Government of India, dated August 13,1949 and it was stated therein, \.....I am di- rected to state that this Government re-a rms, with reference to section 6 of the Delhi Special Police Establish- ment Act, 1946, the consent given for an inde nite period under its letter No. 5042/4-D, dated the 6th Novem- ber 1946, to the members of the Delhi Special Police Establishment exercis- ing powers and jurisdiction in the area of the not province of Bombay."

It was contended before the High Court and it was repeated before us that the consent should have been given to every individual member of the Special Police Establishment and that a general consent would not be a good consent. We do not see any force in this argument. Under a. 6 of the Delhi Special Police Establish- ment Act, no member of the said Es- tablishment can exercise powers and jurisdiction in any area in a State without the consent of the Govern- ment of that State. That section does not lay down that every mem- ber of the said Establishment should be speci cally authorized to exercise

jurisdiction in that area, though the State Government can do so. When a State Government can authorize a single o cer to exercise the said ju- risdiction, we do not see any legal objection why it could not authorize the entire force operating in that area belonging to that Establishment to make such investigation. The autho- rization led in this case su ciently complies with the provisions of s. 6 of the Delhi Special Police Establish- ment Act, 1946, and there are no merits in this contention.

The next contention centres round the framing of charges. The charges framed in this case have been fully extracted in the earlier part of the judgment. The rst objection is that the Special Judge had no juris- diction to try the accused on charges involving o ences other than those mentioned in s. 6(1) of the Crim- inal Law (Amendment) Act, 1952. This argument ignores s. 7(2)(b) of the Act which says, \When try- ing any case, a special judge may also try any o ence other than an o ence speci ed in section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial." The objection, therefore, has no force.

The next criticism is that there can be no legal charge of a conspiracy between accused Nos. 1 to 3, who are public servants, and accused Nos. 4 to 6, who are not public servants, in respect of o ences under the Preven- tion of Corruption Act for the reason that they can only be committed by public servants. But this contention ignores the scope of the o ence of

25

criminal conspiracy. Section 120A of the Indian Penal Code de nes \crim- inal conspiracy" and under that def- inition, \When two or more persons agree to do, or cause to be done, an il- legal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy." The gist of the o ence is an agree- ment to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the il- legal act agreed to be done has not been done. So too, it is not an ingre- dient of the o ence that all the par- ties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under s. 43 of the Indian Penal Code, an act would be illegal if it is an o ence or if it is prohibited by law. Under the rst charge the accused are charged with having conspired to do three cate- gories of illegal acts, and the mere fact that all of them could not be con- victed separately in respect of each of the o ences has no relevancy in considering the question whether the o ence of conspiracy has been com- mitted. They are all guilty of the of- fence of conspiracy to do illegal acts, though for individual o ences all of them may not be liable.

The second objection is in regard to the second charge. It is said that accused Nos. 4, 5 and 6 could not be charged with having committed an o ence under s. 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, as they are not public servants. The learned Judges of the High Court ac- cepted the said legal position as cor- rect, but held that they could be con-

victed under s. 109 of the Indian Penal Code, read with cls. (c) and

(d) of s. 5(1) of the Prevention of Corruption Act. But on the merits they convicted accused No. 1 under s. 5(2) of the Prevention of Corrup- tion Act, instead of under the said section read with s. 34 of the Indian Penal Code, and they convicted ac- cused No. 4 under s. 109 of the In- dian Penal Code, read with s. 5(1)(c) and (d) of the Prevention of Corrup- tion Act, instead of under s. 5(2) of the said Act, read with s. 34 of the Indian Penal Code. As accused No. 4 was dead before the appeal was led in this Court, nothing need be said about the legality of his con- viction. The only outstanding ques- tion, therefore, is whether the High Court was justi ed in convicting ac- cused No. 1 under s. 5(2) of the Prevention of Corruption Act instead of under the said section read with s. 34 of the Indian Penal Code. To such a situation, s. 537 of the Crim- inal Procedure Code applies and un- der that section, no sentence passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the charge, including any misjoinder of charges, unless such error, omission, irregu- larity or misdirection has in fact oc- casioned a failure of justice. This Court in W. Slaney v. State of M. P. (1) held that in adjudging a ques- tion of prejudice the concern of the court should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the impugned facts sought to be established against him were

26 Major E. G. Barsay v. The State Of Bombay 1961

explained to him clearly and fairly and whether he was given a full and fair chance to defend himself. Judged by the said test it is manifest that ac- cused No. I cannot be said to have been prejudiced by his conviction un- der s. 5(2) of the Prevention of Cor- ruption Act, for accused No. I had clear knowledge from the inception that the prosecution case against him was that he committed an o ence un- der s. 5(2) of the Prevention of Cor- ruption Act and that he had every opportunity, and indeed he made a sustained e ort throughout the trial to defend himself against the said ac- cusation. It is not possible to hold in this case that there was any failure of justice by reason of the High Court convicting him for a substantive of- fence under s. 5(2) of the said Act.

So far as the third head of the charge is concerned, the High Court held that it was bad in regard to accused No. 1. Accused No. 1, therefore, cannot obviously have any grievance with that nding. For the foregoing reasons, we hold that there are no merits in the contentions raised by learned counsel on the basis of the charges framed in this case.

Now we come to the merits of the case. So far as the appellant is con- cerned, both the Special Judge and, on appeal the High Court accepted the evidence of Lawrence, as it was corroborated in material particulars by other acceptable evidence. They concurrently found that the appel- lant was a party to the conspiracy. The nding is one of fact, and the practice of this Court is not to inter- fere with such nding except under

exceptional circumstances. Learned counsel for the appellant made a se- rious and sustained attempt to have the said nding reopened by advanc- ing arguments under the following three heads: (1) The High Court has failed to draw correct inferences from the facts found by it and has also drawn wrong conclusion ignor- ing probabilities arising in a given situation; (2) the High Court has ig- nored the distinction between an un- truthful witness and a truthful wit- ness, whose evidence under the rule of prudence could be accepted only in so far as it is corroborated in material particulars, and the High Court, having disbelieved Lawrence's evidence in regard to important inci- dents in his narration, should have rejected his evidence in toto; and if it had done so, the question of cor- roboration would not arise for con- sideration; and (3) the independent pieces of evidence accepted by the High Court did not corroborate the evidence of Lawrence in material par- ticulars implicating him in the crime.

The rst argument is a direct at- tack on the correctness of the nding of fact arrived at by the High Court. As we have said, the practice of this Court in an appeal under Art. 136 of the Constitution is not to allow such an attack except in exceptional circumstances. Learned counsel ad- dressed at some length on this aspect of the case, and after hearing him, we were satis ed that there were no such exceptional circumstances present in this case. Our reluctance to depart from the usual practice is hightened by the fact that in the present case,

27

so far as the appellant is concerned, there are concurrent ndings of fact by both the courts.

The second argument is a subtle attempt to reopen the ndings of fact from a di erent perspective. This ar- gument is based upon a decision of this Court in Sarwan Singh v. The State of Punjab (1). In that case, Gajendragadkar, J., speaking for the Court, observed at p. 959 thus:

\But it must never be forgotten that before the Court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the rst initial and essen- tial question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver's ev- idence has to satisfy a double test."

Then the learned Judge pro- ceeded to state, \We have carefully read the judgment delivered by the High Court but we nd no indication in the whole of the judgment that the learned Judges considered the char- acter of the approver's evidence and reached the conclusion that it was the evidence given by a reliable wit- ness."

Later on the learned Judge fur- ther stated, \........ the evidence of the approver is so thoroughly dis- crepant that it would be di cult to resist the conclusion that the ap- prover in the present case is a wholly

unreliable witness."

Relying upon these observations, learned counsel contends that in the present case the High Court did not accept the evidence of the approver in regard to important events and therefore the High Court should have rejected his evidence without further attempting to see whether there was any corroboration in material par- ticulars in other evidence. Before we consider this argument in the context of the facts of the present case, we would like at the outset to make some general observations. This Court could not have intended to lay down that the evidence of an approver and the corroborating pieces of evidence should be treated in two di erent compartments, that is to say, the Court shall have rst to consider the evidence of the approver dehors the corroborated pieces of ev- idence and reject it if it comes to the conclusion that his evidence is un- reliable; but if it comes to the con- clusion that it is reliable then it will have to consider whether that evi- dence is corroborated by any other evidence. This Court did not lay down any such proposition. In that case it happened that the evidence of the approver was so thoroughly discrepant that the Court thought that he was a wholly unreliable wit- ness. But in most of the cases the said two aspects would be so inter- connected that it would not be possi- ble to give a separate treatment, for as often as not the reliability of an approver's evidence, though not ex- clusively, would mostly depend upon the corroborative support it derives

28 Major E. G. Barsay v. The State Of Bombay 1961

from other unimpeachable pieces of evidence. We must also make it clear that we are not equating the evidence of Lawrence with that of an approver; nor did the Special Judge or the High Court put him exactly on that foot- ing. The learned Special Judge in his judgment observed thus:

\He (Lawrence) is obviously de- coy or spy and agent provocateur and his evidence will have, therefore, to be approached with great caution and much weight cannot be attached to it unless it is corroborated by other independent evidence and cir- cumstances in the case.... Not being tainted evidence, it would not suf- fer from a disability of being unwor- thy of acceptance without indepen- dent corroboration. But being inter- ested evidence, caution requires that there should be corroboration from an independent source before its ac- ceptance. To convict an accused on the tainted evidence of an accomplice is not illegal but it is imprudent; to convict an accused upon the parti- san evidence of a person at whose in- stance a trap is laid by the police is neither illegal nor imprudent but in- advisable therefore, be accepted and relied upon, only if it is corroborated by other independent evidence and circumstances in the case."

The learned Judges of the High Court practically adopted the same attitude in the manner of their ap- proach to the evidence of Lawrence. The learned Judges observed: \To convict an accused upon the parti- san evidence of a person at whose instance a trap is laid by the police is neither illegal nor imprudent, be-

cause it is just possible that in some cases an accomplice may give evi- dence because he may have a feeling in his own mind that it is a condition of his pardon to give that evidence, but no such consideration obtains in the case of the evidence of a person who is not a guilty associate in crime but who invites the police to lay a trap. All the same, as the person who lodges information with the police for the purpose of laying a trap for an- other is a partisan witness interested in seeing that the trap succeeds, it would be necessary and advisable to look for corroboration to his evidence before accepting it. But the degree of corroboration in the case of a tainted evidence of an accomplice would be higher than that in the case of a par- tisan witness. In our opinion, all these decisions would clearly estab- lish that it would not be safe to rely on the evidence of Lawrence who is admittedly a decoy or trap witness, without his testimony being corrob- orated from independent sources."

Even Mr. Amin, learned spe- cial counsel on behalf of the State asked the courts to proceed to ex- amine the evidence of Lawrence on the basis that he was a decoy or trap witness. We are de nitely of opinion that both the courts had approached the evidence of Lawrence from a cor- rect standpoint. Though Lawrence was not an approver, he was cer- tainly an interested witness in the sense that he was interested to see that the trap laid by him succeeded. He could at least be equated with a partisan witness and it would not be admissible to rely upon such evidence

29

without corroboration. It would be equally clear that his evidence was not a tainted one, but it would only make a di erence in the degree of cor- roboration required rather than the necessity for it.

Approaching the case from this perspective-in our view that is a cor- rect one-the learned Special Judge came to the following conclusion:

\There was no compelling neces- sity for Shri Lawrence to concoct a false story against Major Barsay and the other accused. It is, therefore, clear that prima facie there is no good ground to discard the evidence of Shri Lawrence."

Then the learned Special Judge considered the corroborative pieces of evidence and nally held that Lawrence's evidence had been cor- roborated in material particulars in respect of the appellant. Likewise, the learned Judges of the High Court considered the evidence of Lawrence along with that of other accept- able witnesses. Though the learned Judges of the High Court rejected the evidence of Lawrence in regard to some events either because that part of the evidence was not consistent with the other parts of his evidence or with the evidence of some disin- terested witnesses, they did not see any reason to reject the story given by Lawrence as a myth or a concoc- tion. After considering the evidence, the learned Judges concluded,

\We, therefore, accept Lawrence's evidence, nd that his story is probable and true and we also nd that the evidence on the

record justi es the nding of the trial Court that there was a conspiracy as alleged by the prosecution to smug- gle goods out of the Dehu Vehicles Depot."

Having accepted broadly the ver- sion given by Lawrence, the High Court took the case of each of the accused and held that in the case of accused Nos. 1 to 4 Lawrence's evidence had been amply corrobo- rated by other evidence in all ma- terial particulars. In these circum- stances, we cannot accept the con- tention of learned counsel for the ap- pellant that the High Court had re- jected the evidence of Lawrence. As we have said, the High Court did not accept some parts of the evidence of Lawrence, but it had broadly ac- cepted the version given by Lawrence in regard to the conspiracy and the manner in which the articles were smuggled out of the Depot. If some of the accused were acquitted it was because there were some discrepan- cies in the evidence of Lawrence in respect of them and particularly be- cause that part of his evidence was not corroborated in material partic- ulars by other evidence. But in the case of the appellant the High Court accepted the evidence given by Lawrence and convicted the ap- pellant because that version was cor- roborated in all material particulars by the evidence of other disinterested witnesses. We, therefore, reject this contention.

This leads us to the consider- ation of the only remaining ques- tion, namely, whether Lawrence's ev- idence is corroborated in material

30 Major E. G. Barsay v. The State Of Bombay 1961

particulars implicating the appellant by other acceptable evidence. The corroboration must be by indepen- dent testimony con rming in some material particulars not only that the crime was committed but also that the appellant committed it. It is not necessary to have corroboration of all the circumstances of the case or every detail of the crime. It would be suf-cient if there was corroboration as to the material circumstances of the crime and of the identity of the ac- cused in relation to the crime. These principles have been settled in R. v. Baskerville, (1) which has rightly been considered as the locus classicus of the law of approver's evidence and has been followed by courts in In- dia. Looking from that aspect, both the courts have found corroboration from disinterested witnesses in ma- terial particulars implicating the ap- pellant in the crime. Lawrence gave a detailed account of the unfurling of the scheme of fraud from the date he met Major Barsay on December 2, 1954, up to December 20, 1954, when the o ending truck was obstructed by the police from proceeding further on its onward journey.

Lawrence stated in his evidence that on December 3, 1954, Major Barsay told him, inter alia, that he had chalked out a detailed scheme in consultation with Kochhar to trans- fer all the valuable parts lying in Shed No. 48 to Shed No. 17 for the purpose of itemization, that he had 'already recalled Kochhar from leave of absence prior to its expiry and posted him in the Kit Stores, and that he had also posted Avatar

Singh from Unit Sub Park to the Kit Stores. The prosecution has es- tablished by clear evidence that Ma- jor Barsay was instrumental in post- ing Kochhar, accused No. 2, to the Kit Stores after asking him to cut short his leave which was for, a pe- riod of two months. It was also established by evidence that Major Barsay brought Avatar Singh to the Kit Stores. Though these facts might not have implicated Kochhar and Avatar Singh, they certainly corrob- orate the evidence of Lawrence that Major Barsay told him that these transfers were made to facilitate the implementation of the scheme.

Lawrence stated in his evidence that Major Barsay told him on De- cember 3, 1954, that he had chalked out a detailed scheme in consulta- tion with Kochhar to transfer all the valuable parts lying in Shed No. 48 to Shed No. 17 for the purpose of itemization, and that as soon as the Board of O cers was appointed there would be a shuttle of trucks moving from Shed No. 48 to Shed No. 17 and vice versa and nobody's suspicion would be roused if one or two trucks were taken away out of the main gate during the course of these movements of the trucks be- tween these two sheds. There is ev- idence to show that a Board of O - cers was appointed to do the work of itemization and that one Cap- tain Mehendiratta was appointed the President of that Board. Lawrence said that Major Barsay told him that he would show certain boxes from Shed No. 48 to Col. Rao and tell him that they did not contain many

31

of the articles which they were said to contain, so that Col. Rao also would not be surprised at the nal result of the itemization. It has been estab- lished by other evidence that on De- cember 8, 1954, Major Barsay went to Col. Rao and took him to Shed No. 48 and showed him the military stores that were lying there awaiting itemization.

At about midday on December 18, 1954, Lawrence stated, Major Barsay met him at the Depot and told him that he and other conspir- ators would meet at his residence to discuss about the scheme. It is in evidence that on the 18th the meeting was held as deposed to by Lawrence. Evidence of Col. Sindhi and Capt. Sharma, which was ac- cepted by both the courts, estab- lishes this fact. The same evidence also establishes that at that meeting Major Barsay, Saighal, Lawrence and two Sikhs were present, and though the two Sikhs were not identi ed to be accused Nos. 2 and 3, the pres- ence of accused Nos. 1 and 4 and two Sikhs corroborates the evidence of Lawrence.

Lawrence stated that at that meeting Major Barsay undertook to do certain things. According to Lawrence Major Barsay told the con- spirators that he would detail a driver of his con dence in a vehicle for executing the plan, that he would send Kochhar to Shed No. 17, or- der Kochhar to transfer the itemized goods from Shed No. 17 to Shed No. 26 ostensibly for the purpose of preservation, that he would call Major Nag on Monday (December

20) and in his presence he would or- der Lawrence to go to the D.O.D. to bring the re hoses. The evidence of Havaldar Pillay, Godse, Suryawan- shi and G. K. Pillay establishes the fact that Barsay secured one truck and a driver for shifting of the stores from Shed No. 17 to Shed No. 26. The evidence of Jamadar Lachmans- ing proves that Major Barsay went to Shed No. 17 and ordered the shifting of stores from there to Shed No. 26 for conditioning and preserva- tion. The evidence of Major Nag es- tablishes that in his presence Major Barsay sent for Lawrence and asked the latter to go to the D.O.D. and expedite the return of the re hoses. These established facts certainly cor- roborate the evidence of Lawrence as to what took place on the 18th and also his evidence that Major Barsay gave the said instructions to him in the presence of Major Nag.

The evidence of Lawrence that Major Barsay told him and the other conspirators that there should be two loadings of the trucks at Shed No. 17, the rst loading to carry innocuous articles and the second the articles intended to be smuggled out of the Depot, was also corroborated by dis- interested evidence. Both the courts accepted that evidence.

Then there is evidence of the movements of Major Barsay during the crucial time when the smuggling out of the goods was scheduled to take place. The evidence of Jogen- drasingh, Rambhan and Wagh shows that at about 1-10 p.m. on December 20, 1954, Major Barsay was rather worried and was moving to and

32 Major E. G. Barsay v. The State Of Bombay 1961

fro near the main gate because he was suspecting that somebody was watching their movements. Jamadar Jogendrasingh deposed that Major Barsay asked him to tell Lawrence, \not to do it as there was something suspicious about it." Major Nag also supported this version. These nervous movements of Major Barsay certainly corroborate the evidence of Lawrence that he was the moving spirit in the conspiracy.

The evidence of Lawrence that the duty of going along with the truck was allotted to his part in the conspiracy is corroborated by the cir- cumstances establisbed by the ev- idence that Lawrence got into the truck near Shed No. 17 and went in the truck to its destination.

The evidence of Lawrence regard- ing how Major Barsay directed the smuggling of the goods out of the Depot was corroborated by other in- dependent evidence. There is evi- dence of Jog and Diwate to show that on December 19, in the morn- ing, Saighal showed the spot where the transshipment was to take place to Lawrence. There is the evidence of Darekar to show that a truck was arranged and that he was asked by Yakubsaheb to take his truck to Tale- gaon for the transport of iron goods. There is also the evidence of Darekar and Hatnolkar to establish that ac- cused No. 4 was waiting near the cemetry on the Talegaon-Dabhade Road and that Darekar was also in- structed by Saighal to park the lorry in a particular way. Then there is the evidence of the police o cers that the goods brought in the military lorry

were being transported into the civil- ian truck when they came on the scene. All this evidence supports the version of Lawrence when he said that Major Barsay gave the neces- sary instructions as to the manner of transport of the military goods to the civilian truck.

The said facts found by both the courts below implicate accused No. 1 in the matter of the preparation, laying down of the details of imple- mentation and the actual carrying out of the scheme of smuggling the goods out of the Depot through all the stages and thereby establish that the appellant was the main conspira- tor and the brain behind the conspir- acy. We cannot, therefore, say that the version given by Lawrence impli- cating accused No. 1 is not corrobo- rated by other independent evidence. It follows that the conviction of the appellant by the High Court is cor- rect. This leads us to the appealled by the State against the judg- ment of the High Court acquitting accused Nos. 2 and 3 on the ground that the evidence of Lawrence impli- cating them in the o ence was not corroborated in material particulars by independent evidence. In this ap- peal also we have not allowed learned counsel for the State to canvass the correctness of the nding arrived at by the High Court on the apprecia- tion of the evidence in the case. Tak- ing the ndings arrived at by the High Court, we nd it di cult to take a di erent view from that taken by the High Court. In regard to accused No. 2 the High Court ar- rived at the following ndings: (1)

33

There is no evidence or allegation on the record to show that there was any understanding between him and Major Barsay before he left on two months leave. (2) There is no evi- dence that Kochhar, accused No. 2, met Lawrence on December 6, 1954.

(3) Accused No. 2 moved Major Barsay by his letter (Ex. 151) to con- vene the itemization board. (4) Prior to the appointment of the board and its constitution, accused No. 2 or- dered the shifting of the \specialist boxed kits" from Shed No. 48 to Shed No. 17, but this was done un- der Major Barsay's instructions. (5) Accused No. 2 was present when Fer- nandez was ordered by Major Barsay to complete the identi cation of therst set before December 13, even by working on Sunday the 12th Decem- ber, and in that connection a writ- ten order was issued by him on De- cember 11. (6) On December 12 Lawrence persuaded accused No. 2 to go in for two insurance policies.

(7)Though according to Lawrence, Kochhar undertook to prepare a bo- gus voucher and to be at the Depot at the opening hours on Monday the 20th to prepare that voucher in the o ce of Lawrence, it is admitted that Kochhar refused to issue the voucher.

(8)Accused No. 2 was present at Shed No. 17 when Major Barsay is- sued orders to shift the stores to Shed No. 26. And (9) Accused No. 2 accompanied Major Barsay to Shed No. 19 in the morning and lie was present when the truck was being loaded for the second trip at Shed No. 17. The High Court found that the said circumstances, though some of them might raise a suspicion, did

not implicate accused No. 2 in the o ence and they are consistent also with his innocence. Though some of the facts give rise to a suspicion, we cannot say that the High Court was wrong in holding that the said facts did not corroborate the evidence of Lawrence in implicating the said ac- cused in the o ence.

Now coming to accused No. 3, the High Court found the following facts based on the evidence other than that of Lawrence: (1) Avatars- ing, accused No. 3, was transferred from Unit Sub Park to Kit Stores.

(2) Accused No. 3 was a party to the shifting of stores from Shed No. 48 to Shed No. 17 even before the appointment of the board of item- ization. (3) Though Lawrence stated that Avatarsing expressed his inabil- ity to push the scheme on account of Capt. Kapoor's constant vigilance and visits to Shed No. 17, Lawrence had admitted that his rst contact with Avatarsing was in the noon of 18th December. (4) There is no evidence that Avatarsing attended the meeting at Major Barsay's on the 18th. (5) Avatarsing loaded the truck for the rst trip and also for the second trip, and in loading the second trip he used the usual labor- ers and two outside workers. (6) Af- ter the truck was loaded, he asked Rambhan to take the truck to D. 0. D. under instructions from the supe- rior o cers. (7) The words \D. O. D." in Ex. 42, the duty slip, were not entered by Avatarsing. The High Court held that the said facts found on independent evidence did not im- plicate the said accused in the o ence

34 Major E. G. Barsay v. The State Of Bombay 1961

and they were all consistent with his innocence. Though some of the nd- ings give rise to suspicion we cannot say that the High Court was wrong in holding that the said facts found did not corroborate the evidence of

Lawrence in implicating the accused in the o ence. We, therefore, accept the nding of the High Court in re- gard to accused Nos. 2 and 3. In the result both the appeals fail and are dismissed. Appeals dismissed.

Chapter 2

Ram Sarup v. The Union Of India 1963

Ram Sarup v. The Union Of In- dia And Another on 12 December, 1963 Equivalent citations: 1965 AIR 247, 1964 SCR (5) 931 Bench: Dayal, Raghubar

PETITIONER:

RAM SARUP

v.

RESPONDENT:

THE UNION OF INDIA AND ANOTHER

DATE OF JUDGMENT:

12/12/1963

BENCH:

DAYAL, RAGHUBAR

BENCH:

DAYAL, RAGHUBAR

SINHA, BHUVNESHWAR P.(CJ)

WANCHOO, K.N.

AYYANGAR, N. RAJAGOPALA

MUDHOLKAR, J.R.

CITATION:

1965 AIR 247 1964 SCR (5) 931

CITATOR INFO :

R 1971 SC 500 (19)

R 1971 SC1120 (17)

R 1979 SC1588 (14)

R 1982 SC1413 (15,17)

RF 1983 SC 658 (7)

ACT:

Army Act (XLVI of 1950), ss. 125, 126 and 164-Scope of- Constitu- tion of India, 1950, Art. 33-E ect on fundamental rights-s. 125 of Army Act if violative of Art. 14 of the Con- stitution.

HEADNOTE:

The General Court Martial sen- tenced the petitioner, a sepoy, to death under s. 69 of the Army Act read with s. 302 of the Indian Pe- nal Code for shooting dead two se- poys and a Havildar. The Central Government con rmed the sentence. The petitioner led writs of habeas corpus and certiorari for setting aside the orders of the Court Martial and

36 Ram Sarup v. The Union Of India 1963

the Central Government and for his release.

Held:

(i)The petitioner made no re- quest for being represented at the court martial by a counsel of his choice; consequently no such request was refused, and that there has been no violation of the fundamental right of the petitioner to be defended by a counsel of his choice.

(ii)There has been no non- compliances of the provisions of S. 132(2) of the Act. In view of the provisions of rr. 45, 46, 61(2) and

62of the Army Rules, 1954, the pe- titioner's statement, that the death sentence was voted by an inadequate majority of the members of the Court which can be considered to be a mere allegation, cannot be based on any de nite knowledge as to how the vot- ing went at the consideration of thending in pursuance of r. 61. (iii) Section 164 does not lay down that the correctness of the order or sen- tence of the Court Martial is always to be decided by two higher author- ities; it only provides for two reme- dies. The further petition can only be made to the authority superior to the authority which con rms the order of the Court Martial, and if there be no authority superior to the con rming authority, the question of remedy against its order does not arise.

(iv)Each and every provision of the Army Act is a law made by Par- liament and that if any such provi- sion tends to a ect the fundamental rights under Part III of the Consti-

tution, that provision does not, on that account, become void, as it must be taken that Parliament has in ex- ercise of its power under Art. 33 of the Constitution made the requisite modi cation to a ect the respective fundamental right. (v) The provi- sions of s. 125 of the Act are not dis- criminatory and do not infringe the provisions of Art. 14 of the Consti- tution.

(vi)The discretion to be exer- cised by the Military O cer speci-ed in s. 125 of the Act as to the trial of accused by Court Martial or by an ordinary court, cannot be said to be unguided by any other policy laid down in the Act or uncontrolled by any authority. There could be a variety of circumstances which may in uence the decision as to whether the o ender be tried by a Court Mar- tial or by ordinary criminal court and therefore becomes inevitable that the discretion to make the choice as to which court should try the accused be left to responsible Military o - cers under whom the accused is serv- ing. Those o cers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the o ence and the person against whom the o ence is committed. This discretion is subject to the control of the Central Government.

(vii)According to s. 549 of the Code of Criminal Procedure and the rules thereunder, the nal choice about the forum of the trial of a per- son accused of a civil o ence rests with the Central Government, when- ever there be di erence of opinion be-

37

tween a Criminal Court and Military authorities about the forum. The po- sition under ss. 125 and 126 of the Army Act is also the same.

JUDGMENT:

ORIGINAL JURISDICTION: Petition No. 166 of 1963. Under Ar- ticle 32 of the Constitution of India for the enforcement of fundamental rights.

O.P. Rana, for the petitioner.

C.K. Daphtary, B.R.L. lyengar and R.H. Dhebar for the respon- dents.

December 12, 1963. The Judg- ment of the Court was delivered by RAGHUBAR DAYAL J.-

Ram Sarup, petitioner, was a se- poy in 131 Platoon DSC, attached to the Ordnance Depot, Shakurbasti. As a sepoy, he is subject to the Army Act, 1950 (XLVI of 1950), hereinafter called the Act.

On June 13, 1962 he shot dead two sepoys, Sheotaj Singh and Ad Ram and one Havildar Pala Ram. He was charged on three counts under S. 69 of the Act read with s. 302 I.P.C. and was tried by the General Court Martial. On January 12, 1963 the General Court Martial found him guilty of the three charges and sen- tenced him to death.

The Central Government con-rmed the ndings and sentence awarded by the General Court Mar- tial to the petitioner. Thereafter, the petitioner has led this writ pe- tition praying for the issue of a writ in the nature of a writ of habeas corpus and a writ of certiorari set-

ting aside the order dated January 12, 1963 of the General Court Mar- tial and the order of the Central Gov- ernment con rming the said ndings and sentence and for his release from the Central Jail, Tehar, New Delhi, where he is detained pending execu- tion of the sentence awarded to him.

The contentions raised for the pe- titioner are: (1) That the provisions of s. 125 of the Act are discrimina- tory and contravene the provisions of Art. 14 of the Constitution inasmuch as it is left to the unguided discretion of the o cer mentioned in that sec- tion to decide whether the accused person would be tried by a Court Martial or by a Criminal Court. (2) Section 127 of the Act which provides for successive trials by a Criminal Court and a Court Martial, violates the provisions of Art. 20 of the Con- stitution as it provides for the pros- ecution and punishment of a person for the same o ence more than once.

(3) The petitioner was not allowed to be defended at the General Court Martial by a legal practitioner of his choice and therefore there had been a violation of the provisions of Art. 22(1) of the Constitution. (4) The procedure laid down for the trial of o ences by the General Court Mar- tial had not been followed inasmuch as the death sentence awarded to the petitioner was not passed with the concurrence of at least two-thirds of the members of the Court. (5) Section 164 of the Act provides two remedies, one after the other, to a person aggrieved by any order passed by a Court Martial. Sub-s. (1) allows him to present a petition to the o -

38 Ram Sarup v. The Union Of India 1963

cer or authority empowered to con-rm any nding or sentence of the Court Martial and sub-s. (2) allows him to present a petition to the Cen- tral Government or to any other au- thority mentioned in that sub-section and empowers the Central Govern- ment or the other authority to pass such order on the petition as it thinkst. The petitioner could avail of only one remedy as the nding and sen- tence of the Court Martial was con-rmed by the Central Government. He, therefore, could not go to any other authority against the order of the Central Government by which he was aggrieved. It will be convenient to deal with the rst point at the end and take up the other points here.

The petitioner has not been sub- jected to a second trial for the o ence of which he has been convicted by the General Court Martial. We therefore do not consider it necessary to decide the question of the validity of s. 127 of the Act in this case.

With regard to the third point, it is alleged that the petitioner had expressed his desire, on many oc- casions, for permission to engage a practising civil lawyer to represent him at the trial but the authorities turned down those requests and told him that it was not permissible under the Military rules to allow the ser- vices of a civilian lawyer and that, he would have to defend his case with the counsel he would be provided by the Military Authorities. In re- ply,, it is stated that this allegation about the petitioner's requests and their being turned down was not cor- rect, that it was not made in the peti-

tion but was made in the reply after the State had led its counter a - davits in which it was stated that no such request for his representation by a legal practitioner had been made and that there had been no denial of his fundamental rights. We are of opinion that the petitioner made no request for his being represented at the Court Martial by a counsel of his choice, that consequently no such request was refused and that he cannot be said to have been de- nied his fundamental right of being defended by a counsel of his choice. In paragraph 9 of his petition he did not state that he had made a re-

quest for his being represented by
a counsel of his choice. He sim-

ply stated that certain of his rela- tives who sought interview with him subsequent to his arrest were refused permission to see him and that this procedure which resulted in denial of opportunity to him to defend him- self properly by engaging a compe- tent civilian lawyer through the re- sources and help of his relatives had infringed his fundamental right un- der Art. 22 of the Constitution. If the petitioner had made any ex- press request for being defended by a counsel of his choice, he should have stated so straight-forwardly in para 9 of his petition. His involved language could only mean that he could not contact his relations for their arrang- ing a civilian lawyer for his defence. This negatives any suggestion of a re- quest to the Military Authorities for permission to allow him representa- tion by a practising lawyer and its refusal.

39

We therefore hold that there had been no violation of the fundamental right of the petitioner to be defended by a counsel of his choice, conferred under Art. 22(1) of the Constitution.

Further, we do not consider it necessary to deal with the questions, raised at the hearing, about the va- lidity of r. 96 of the Army Rules, 1954, hereinafter called the rules, and about the power of Parliament to del- egate its powers under Art. 33 of the Constitution to any other authority. The next point urged for the peti- tioner is the sentence of death passed by the Court Martial was against the provisions of' s. 132(2) of the Act inasmuch as the death sentence was voted by an inadequate major- ity. The certi cate, signed by the presiding o cer of the Court Martial and by the Judge Advocate, and pro- duced as annexure 'A' to the respon- dent's counter to the petition, reads:

\Certi ed that the sentence of death is passed with the concurrence of at least Two-third of the members of the Court as provided by AA Sec- tion 132(2)."

It is alleged by the petitioner that this certi cate is not genuine but was prepared after his ling the writ peti- tion. We see no reason to accept the petitioner's allegations. He could not have known about the voting of the members of the General Court Mar- tial. Rule 45 gives the Form of Oath or of A rmation which, is adminis- tered to every member of a Court Martial. It enjoins upon him that he will not on any account at any time whatsoever disclose or discover the vote or opinion of any particu-

lar member of the Court Martial un- less required to give evidence thereof by a Court of Justice or Court Mar- tial in due course of law. Similar is the provision in the Form of Oath or of A rmation which is administered to the Judge Advocate, in pursuance of r. 46. Rule 61 provides that the Court shall deliberate on its nding in closed Court in the presence of the Judge Advocate. It is therefore clear that only the members of the Court and the Judge Advocate can know how the members of the Court Mar- tial gave their votes. The votes are not tendered in writing. No record is made of them. Sub-rule (2) of r. 61 provides that the opinion of each member of the Court as to the nd- ing shall be given by word of mouth on each charge separately. Rule 62 provides that the nding on every charge upon which the accused is ar- raigned shall be recorded and, ex- cept as provided in the rules, shall be recorded simply as a nding o 'guilty' or of 'not guilty'. In view of these provisions, the petitioner's statement, which can be considered to be a mere allegation, cannot be based on any de nite knowledge as to how the voting went at the consid- eration of the nding in pursuance of r. 61.

Further, there is no reason to doubt what is stated in the certi - cate which, according to the counter- a davit, is not recorded in pur- suance of any provision governing the proceedings of the Court Mar- tial, and does not form Dart of any such proceedings. It is recorded for the satisfaction of the con rm-

40 Ram Sarup v. The Union Of India 1963

ing authority. The certi cate is dated January 12, 1963, the date on which the petitioner was con- victed. The a davit led by Col. N.S. Bains, Deputy Judge Advocate General, Army Headquarters, New Delhi, contains a denial of the pe- titioner's allegation that the certi - cate is a false and concocted docu- ment and has been made by the au- thorities after the ling of the writ Petition. We see no reason to give preference to the allegations of the petitioner over the statement made by Col. Bains in his a davit, whichnds support from the contents of Exhibit A signed by the presiding o cer of the Court.Martial and the Judg-Advocate who could possibly have no reason for issuing a false cer- ti cates We therefore hold that there had been no noncompliance of the provisions of s. 132(2) of the Act.

Next we come to the fth point. It is true that s. 164 of the Act gives two remedies to the person aggrieved by an order, nding or sentence of a Court Martial, they being a petition to the authority which is empowered to con rm such order, nding or sen- tence and the petition to the Cen- tral Government or some other o - cer mentioned in sub-s. (2), after the order or sentence is con rmed by the former authority. The nal author- ity to which the person aggrieved by the order of the Court Martial can go is the authority mentioned in sub- s. (2) of s. 164 and if this authority happens to be the con rming author- ity, it is obvious that there could not be any further petition from the ag- grieved party to any other higher au-

thority against the order of con rma- tion. The further petition can only be to the authority superior to the authority which con rms the order of the Court Martial and if there be no authority superior to the con rming authority, the question of a remedy against its order does not arise. Sec- tion 164, does not lay down that the correctness of the order or sentence of the Court Martial is always to be decided by two higher authorities. It only provides for two remedies. Sec- tion 153 of the Act provides inter alia that no nding or sentence of a Gen- eral Court Martial shall be valid ex- cept so far as it may be con rmed as provided by the Act and s. 154 provides that the ndings and sen- tence of a General Court Martial may be con rmed by the Central Govern- ment or by any o cer empowered in that behalf by warrant of the Cen- tral Government. It appears that the Central Government itself exercised the power of con rmation of the sen- tence awarded to the petitioner in the instant case by the , General Court Martial. The Central Government is the highest authority mentioned in sub-s. (2) of s. 164. There could therefore be no occasion for a further appeal to any other body and there- fore no justi able grievance can be made of the fact that the petitioner had no occasion to go to any other authority with a second petition as he could possibly have done in case the order of con rmation was by any authority subordinate to the Central Government. The Act itself provides that the Central Government is to con rm the ndings and sentences of General Courts Martial and therefore

41

could not have contemplated, by the provisions of s. 164, that the Central Government could not exercise this power but should always have this power exercised by any other o cer which it may empower in that behalf by warrant.

We therefore do not consider this contention to have any force.

Lastly, Mr. Rana, learned coun- sel for the petitioner, urged in sup- port of the rst that in the exercise of the power conferred on Parliament under Art. 33 of the Constitution to modify the fundamental rights guar- anteed by Part 111, in their applica- tion to the armed forces, it enacted s. 21 of the Act which empowers the Central Government, by noti ca- tion, to make rules restricting to such extent and in such manner as may be necessary, the right of any person with respect to certain matters, that these matters do not cover the funda- mental rights under Arts. 14, 20 and 22 of the Constitution, and that this indicated the intention of Parliament not to modify any other fundamental right. The learned Attorney-General has urged that the entire Act has been enacted by Parliament and if any of the provisions of the Act is not consistent with the provisions of any of the articles in Part III of the Con- stitution, it must be taken that to the extent of the inconsistency Par- liament had modi ed the fundamen- tal rights under those articles in their application to the person subject to that Act. Any such provision in the Act is as much law as the entire Act. We agree that each and every provi- sion of the Act is a law made by Par-

liament and that if any such provi- sion tends to a ect the fundamental rights under Part III of the Constitu- tion, that provision does not, on that account, become void, as it must be taken that Parliament has thereby, in the exercise of its power under Art. 33 of the Constitution, made the req- uisite modi cation to a ect the re- spective fundamental right. We are however of opinion that the provi- sions of s. 125 of the Act are not dis- criminatory and do not infringe the provisions of Art. 14 of the Constitu- tion. It is not disputed that the per- sons to whom the provisions of s. 125 apply do form a distinct class. They apply to all those persons who are subject to the Act and such persons are speci ed in s. 2 of the Act. The contention for the petitioner is that such persons are subject to be tried for civil o ences i.e., o ences which are triable by a Criminal Court ac- cording to s. 3 (ii) of the Act, both by the Courts Martial and the ordi- nary Criminal Courts, that s. 125 of the Act gives a discretion to cer- tain o cers speci ed in the section to decide whether any particular ac- cused be tried by a Court Martial or by a Criminal Court, that there is nothing in the Act to guide such o - cers in the exercise of their discretion and that therefore discrimination be- tween di erent persons guilty of the same o ence is likely to take place inasmuch as a particular o cer may decide to have one accused tried by a Court Martial and another person, accused of the same o ence, tried by a Criminal Court, the procedures in such trials being di erent.

42 Ram Sarup v. The Union Of India 1963

We have been taken through the various provisions of the Act and the rules with respect to the trial of of- fences by a Court Martial. The pro- cedure to be followed by a Court Martial is quite elaborate and gen- erally follows the pattern of the pro- cedure under the Code of Criminal Procedure. There are, however, ma- terial di erences too. All the mem- bers of the Court Martial are Mili- tary O cers who are not expected to be trained Judges, as the presid- ing o cers of Criminal Courts are. No judgment is recorded. No ap- peal is provided against the order of the Court Martial. The authorities to whom the convicted person can represent against his conviction by a Court Martial are also non- 941

judicial authorities. In the cir- cumstances, a trial by an ordinary Criminal Court would be more ben- e cial to the accused than one by a Court Martial. The question then is whether the discretion of the o cers concerned in deciding as to which Court should try a particular accused can be said to be an unguided dis- cretion, as contended for the appel- lant. Section 125 itself does not con- tain anything which can be said to be a guide for the exercise of the dis- cretion, but there is su cient mate- rial in the Act which indicate the pol- icy which is to be a guide for exercis- ing the discretion and it is expected that the discretion is exercised in ac- cordance with it. Magistrates can question it and the Government, in case of di erence of opinion between the views of the Magistrate and the army authorities,. decide the matter

nally.

Section 69 provides for the pun- ishment which can be imposed on a person tried for committing any civil o ence at any place in or be- yond India, if charged under s. 69 and convicted by a Court Martial. Section 70 provides for certain per- sons who cannot be tried by Court Martial, except in certain circum- stances. Such persons are those who commit an o ence of murder, culpa- ble homicide not amounting to mur- der or of rape, against a person not subject to Military, Naval or Air- Force law. They can be tried by Court Martial of any of those three o ences if the o ence is committed while on active service or at any place outside India or at a frontier post speci ed by the Central Government by noti cation in that behalf. This much therefore is clear that persons committing other o ences over which both the Courts Martial and ordi- nary Criminal Courts have Jurisdic- tion can and must be tried by Courts Martial if the o ences are commit- ted while the accused be on active service or at any place outside In- dia or at a frontier post. This indi- cation of the circumstances in which it would be better exercise of discre- tion to have a trial by Court Mar- tial, is an index as to what consid- erations should guide the decision of the o cer concerned about the trial being by a Court Martial or by an ordinary Court. Such considerations can be based on grounds of mainte- nance of discipline in the army, the persons against whom the o ences are committed and the nature of the

43

o ences. It may be considered bet- ter for the purpose of discipline that o ences which are not of a serious type be ordinarily tried by a Court Martial, which is empowered under s. 69 to award a punishment provided by the ordinary law and also such less punishment as he mentioned in the Act. Chapter VII mentions the various punishments which can be awarded by Courts Martial and s. 72 provides that subject to the provi- sions of the Act a Court Martial may, on convicting a person of any of the o ences speci ed in ss. 34 to 68 in- clusive, award either the particular punishment with which the o ence 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 s. 7 1, regard being had to the nature and degree of the o ence.

The exigencies of service can also be a factor. O ences may be com- mitted when the accused be in camp or his unit be on the march. It would lead to great inconvenience if the ac- cused and witnesses of the incident, if all or some of them happen to be- long to the army, should be left be- hind for the purpose of trial by the ordinary Criminal Court. The tri- als in an ordinary court are bound to take longer, on account of the procedure for such trials and con- sequent appeals and revision, then trials by Courts Martial. The ne- cessities of the service in the army require speedier trial. Sections 102 and 103 of the Act point to the de- sirability of the trial by Court Mar- tial to be conducted with as much speed as possible. Section 120 pro-

vides that subject to the provisions of sub-s. (2), a summary Court Mar- tial may try any of the o ences pun- ishable under the Act and sub-s (2) states that an o cer holding a sum- mary Court Martial shall not try cer- tain o ences without a reference to the o cer empowered to convene a district court martial or on active ser- vice a summary general court mar- tial for the trial of the alleged of- fender when there is no grave rea- son for immediate action and such a reference can be made without detri- ment to discipline. This further indi- cates that reasons for immediate ac- tion and detriment to discipline are factors in deciding the type of trial.

Such considerations, as men- tioned above, appear to have led to the provisions of s. 124 which are that any person, subject to the Act, who commits any o ence against it, may be tried and punished for such o ence in any place whatever. It is not necessary that he be tried at a place which be within the jurisdiction of a criminal court having jurisdic- tion over the place where the o ence be committed. In short, it is clear that there could be a variety of cir- cumstances which may in uence the decision as to whether the o ender be tried by a Court Martial or by an or- dinary Criminal Court, and therefore it becomes inevitable that the discre- tion to make the choice as to which court should try the accused be left to responsible military o cers under whom the accused be serving. Those o cers are to be guided by consid- erations of the exigencies of the ser- vice, maintenance of discipline in the

44 Ram Sarup v. The Union Of India 1963

army, speedier trial, the nature- of the o ence and the person against whom the o ence is committed.

Lastly, it may be mentioned that the decision of the relevant military o cer does not decide the matter - nally. Section 126 empowers a crimi- nal court having jurisdiction to try an o ender to require the relevant military o cer to deliver the o ender to the Magistrate to be proceeded against according to law or to post- pone proceedings pending reference to the Central Government, if that criminal court be of opinion that pro- ceedings be instituted before itself in respect of that o ence. When such a request is made, the military o - cer has either to comply with it or to make a reference to the Central Gov- ernment whose orders would be nal with respect to the venue of the trial.

The discretion exercised by the military o cer is therefore subject to the control of the Central Govern- ment. Reference may also be made to s. 549 of the Code of Criminal Procedure which empowers the Cen- tral Government to make rules con- sistent with the Code and other Acts, including the Army Act, as to the cases in which persons subject to mil- itary, naval or air-force law be tried by a court to which the Code applies or by Court Martial. It also pro- vides that when a person accused of such an o ence which can be tried by an ordinary criminal court or by a Court Martial is brought before a Magistrate, he shall have regard to such rules, and shall, in proper cases, deliver him, together with a state- ment of the o ence of which he is ac-

cused, to the Commanding O cer of the regiment, corps, ship or detach- ment to which he belongs, or to the Commanding O cer of the nearest military, naval or air-force station, as the case may be, for the purpose of being tried by Court Martial. This gives a discretion to the Magistrate, having regard to the rules framed, to deliver the accused to the mili- tary authorities for trial by Court Martial. The Central Government framed rules by S.R.O. 709 dated April 17, 1952 called the Criminal Courts and Court Martial (Adjust- ment of Jurisdiction) Rules, 1952, under s. 549 Cr. P.C. It is not neces- sary to quote the rules in full. Su ce it to say that when a person charged is brought before a Magistrate on an accusation of o ences which are li- able to be tried by Court Martial, the Magistrate is not to proceed with the case unless he is moved to do so by the relevant military authority. He can, however, proceed with the case when he be of opinion, for reasons to be recorded, that he should so pro- ceed without being moved in that be- half by competent authority. Even in such a case he has to give notice of his opinion to the Commanding O - cer of the accused and is not to pass any order of conviction or acquittal under ss. 243, 245, 247 or 248 of the Code of Criminal Procedure, or hear him in defence under s. 244 of the said Code; is not to frame any charge against the accused under s. 254 and is not to make an order of committal to the Court of Session or the High Court under s. 213 of the Code, till a period of 7 days expires from the service of notice on the military au-

45

thorities. If the military authorities intimate to the Magistrate before his taking any of the aforesaid steps that in its opinion the accused be tried by Court Martial, the Magistrate is to stay proceedings and deliver the ac- cused to the relevant authority with the relevant statement as prescribed in s. 549 of the Code. He is to do so also when he proceeds with the case on being moved by the military au- thority and subsequently it changes its mind and intimates him that in its view the accused should be tried by Court Martial. The Magistrate, how- ever, has still a sort of control over what the military authorities do with the accused. If no e ectual proceed- ings are taken against the accused by the military authorities within a rea- sonable time, the Magistrate can re- port the circumstances to the State Government which may, in consulta- tion with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law. All this is con- tained in rr. 3 to 7. Rule 8 practi- cally corresponds to s. 126 of the Act and r. 9 provides for the military au-

thorities to deliver the accused to the ordinary courts when, in its opinion or under the orders of the Govern- ment, the proceedings against the ac- cused are to be before a Magistrate.

According to s. 549 of the Code and the rules framed thereunder, thenal choice about the forum of the trial of a person accused of a civil of- fence rests with the Central Govern- ment, whenever there be di erence of opinion between a Criminal Court and the military authorities about the forum where an accused be tried for the particular o ence committed by him. His position under ss. 125 and 126 of the Act is also the same.

It is clear therefore that the dis- cretion to be exercised by the mili- tary o cer speci ed in of the Act as to the trial of accused by Court Mar- tial or by an ordinary court, cannot be said to be unguided by any policy laid down by the Act or uncontrolled by any other authority. Section 125 of the Act therefore cannot, even on merits, be said to infringe the provi- sions of Art. 14 of the Constitution.

The writ petition therefore fails and is dismissed. Petition dismissed.

46 Ram Sarup v. The Union Of India 1963

Chapter 3

Union of India v. Maj S K Sharma 1987

PETITIONER: UNION OF IN- DIA THROUGH MAJOR GEN- ERAL H.C. PATHAK v. RESPON- DENT: MAJOR S.K. SHARMA

DATE OF JUDGMENT: 29/06/1987

BENCH: PATHAK, R.S. (CJ) BENCH:PATHAK, R.S. (CJ), KHALID, V. (J)

CITATION: 1987 AIR 1878 1987 SCR (3) 456 1987 SCC (3) 490 JT 1987 (3) 12 1987 SCALE (2)12

ACT: Criminal Procedure Code, 1973S. 475Read with ss. 200 to 204 of the Code, and the provisions of the Army Act, 1950 and the Army RulesWhen a Magistrate has taken cognizance of an o ence committed by a member of the Armed Forces and thereafter transferred the case for trial under the Army Act and the Rules, it is not open to the Com- petent Authority to hold an inquiry for determining whether there is any case for trying the accusedIt must proceed to hold the Court Martial or take such other e ectual proceedings

as is contemplated by r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978.

HEADNOTE: An o cer in the Army led a complaint before a Magis- trate alleging that another o cer has assaulted him, that the Commanding O cer to whom he had complained earlier had failed to take satisfactory action and thus both of them had committed o ences under the Indian Penal Code. The Magis- trate examined the complainant un- der s. 200 Cr. P.C., took cognizance of the o ences under s. 190(A) and, on being satis ed of the existence of a prima facie case, issued sum- mons under s. 204(A) for the appear- ance of the accused. Upon applica- tions being made by the appellants urging that the case be handed over to the Military Authorities for dis- posal, the Magistrate made an order directing that the case be transferred to the Army Authorities for disposal in accordance with the provisions of

48 Union of India v. Maj S K Sharma 1987

the Army Act, 1950 after trial by a Court Martial at any place within the jurisdic- tion of his Court and that the progress of the case be reported to him at intervals of two months. Upon the appel- lants making fur- ther applications praying for review of the said order on the ground that under the Army Act and the Army Rules, it was not mandatory that all disciplinary cases against mili- tary personnel should culminate in a trial by Court Martial and sub- mitting that the disciplinary action against the o cers concerned would be initiated after an investigation of the alleged o ences, the Magistrate, pointing out that the judicial pro- cess for ascertaining the prima fa- cie existence of a case had already been completed, held that the trial of the accused by Court Martial was mandatory under s. 475 Cr. P.C. and,therefore, it was not permissi- ble for the Army Authorities to hold a preliminary investigation. How- ever, having regard to s. 127 of the Army Act, the Magistrate directed that the progress of the case be in- timated at intervals of four months. in the Revision led by the appel- lants, the High Court interfered with the order of the Magistrate insofar only that it deleted the direction re- quiring the Army Authorities to in- form the Magistrate of the progress of the case at intervals of four months and directed instead that the result of the Court Martial proceeding be communicated to the Magistrate, as soon as may be, in accordance with r. 7 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. Dismissing the appeal

by Special Leave, HELD: The Army Authority is not entitled to ignore the proceeding taken by the Magis- trate and to invoke the provisions of r. 22 and related rules of the Army Rules. The Magistrate having held that there is a case for trying the two accused o cers and having directed their appearance, the Army Author- ity must proceed to hold a Court Martial for their trial or take other e ectual proceedings against them as contemplated by the law. [468G-H]

(i) It is open to a Magistrate un- der ss. 200-203, Cr. P.C. to inquire into a complaint of an o ence alleged to have been committed by a mili- tary person, where it falls within his jurisdiction and to take proceedings for trial of the accused. Likewise, a duly constituted Army Authority has power under the provisions of r. 22 onwards of the Army Rules to inves- tigate into a charge against a mili- tary person accused of an o ence tri- able under the Army Act, and af- ter such hearing to decide whether his trial by a Court Martial should be ordered. The provisions of the Army Rules run parallel to the pro- visions in the Cr. P.C. Inasmuch as there is always a possibility of the same o ence being triable either by a Criminal Court or by a Court Mar- tial, s. 475, Cr. P.C. empowers the Central Government to make rules as to cases in which persons shall be tried by a Court to which the Code applies or by a Court Martial, and the section provides that whenever a person is brought before a Magis- trate and charged with an o ence for which he is liable to be tried either by a Court to which the Code applies

49

or by a Court Martial, such Magis- trate must have regard to such rules and must, in proper cases, deliver the person together with a statement of the o ence of which he is accused, to the Commanding O cer of the unit to which he belongs for the pur- pose of being tried by a Court Mar- tial. The language used in s. 475 is signi cant. It refers to a person who is brought before a Magistrate and charged with an o ence. In other words, he must be a person respect- ing whom the Magistrate has taken the proceedings envisaged by ss. 200 to 204 of the Cede. He will be a per- son in respect of whom the Magis- trate has found that there is a case for trial. It is for that reason that s. 475 goes on to say that when such person is delivered to the Command- ing O cer of the unit to which he be- longs, it will be for the purpose of be- ing tried by a Court Martial. When he is so delivered, a statement of the o ence of which he is accused will also be delivered to the Commanding O cer. The relevance of delivering such statement can be easily under- stood, for it is to enable the Army Authority to appreciate the circum- stances in which a Court Martial is required by the law. [464C-D; 465E- H] (ii) It is clear from r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 framed under s. 475 of the Cr. P.C. that when the accused is made over by the Magistrate under s. 5 or 6 thereof to the competent mili- tary or other authority, it is for the purpose of trial by a Court Martial or other e ectual proceedings to be taken or ordered to be taken against

him inasmuch as the competent au- thority must, as soon as may be, inform the Magistrate, whether the accused has been tried by a Court Martial or other e ectual proceed- ings have been taken or ordered to be taken against him and the communi- cation of such information is manda- tory. When the Magistrate is in- formed that the accused has not been tried or other e ectual proceedings have not been taken or ordered to be taken against him, he is obliged to re- port the circumstances to the State Government and the State Govern- ment, in consultation with the Cen- tral Government, may take appropri- ate steps to ensure that the accused person is dealt with in accordance with law. The policy of the law is clear. Once the Criminal Court de- termines that there is a case for trial, and pursuant to the aforesaid rule, delivers the accused to the compe- tent military or other authority, the law intends that the accused must either be tried by a Court Martial or some other e ectual proceedings must be taken against him. [467B- E] (iii) The policy of our Constitu- tional Polity is that no person should be regarded as being above the law. Military, navel or air force person- nel are as much subject to the law as members of the civil population. It is signi cant that r. 8 of the Crim- inal Courts and Court Martial (Ad- justment of Jurisdiction) Rules, 1978 empowers the Magistrate, on com- ing to know that a person subject to the military, naval or air force law or any other law relating to the Armed Forces has committed an o ence and proceedings in respect of which ought

50 Union of India v. Maj S K Sharma 1987

to be instituted before him and that the presence of such person can- not be procured except through mil- itary, navel or air force authorities, to require the Commanding O cer of such person either to deliver such person to a Magistrate for being pro- ceeded against according to law or to stay the proceedings against such person before the Court Martial if since instituted, and to make a refer- ence to the Central Government for determination as to the Court before which the proceedings should be in- stituted. [467G-H; 468A-B] (iv) Sec- tion 127 of the Army Act provides that a person convicted or acquitted by a Court Martial, may, with the previous sanction of the Central Gov- ernment, be tried against by a Crim- inal Court for the same o ence or on the same facts which is an exception to the rule contained in Art. 20 of the Constitution that no person shall be prose- cuted and punished for the same o ence more than once. It is to enable the operation and applica- tion of s. 127 of the Act that r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 requires the competent military or other authority to inform the Magistrate whether the accused has been tried by a Court Martial or other e ectual proceedings have been taken against him. [468B-D] (v) Section 125 of the Army Act, which provides that when a Criminal Court and a Court Martial have each ju- risdiction in respect of an o ence, it will he in the discretion of the Com- manding O cer of the accused to de- cide before which Court the proceed- ings shall he instituted, is of no assis-

tance in deciding whether it is open to the Army Authority to take pro- ceedings for determining prima facie whether there is substance in the al- legations made against the accused and decline to try him by a Court Martial or take other e ectual pro- ceedings against him even where a Magistrate has taken cognizance of the o ence and nds that there is a case for trying the accused. [468E- F] (vi) There is nothing in the pro- visions of the Army Rules relating to Courts of Inquiry which can support the contention that notwithstanding the proceeding taken by the Magis- trate it is open to the Army Author- ity to hold a Court of Inquiry and determine whether there is any case for trying the accused by a Court Martial. If, it is not open to the Army Authority to have recourse to r. 22 of the Army Rules and investi- gate the charge directed against the ac- cused o cer in this case, for the same reason, it is not open to it to hold a Court of Inquiry and super- sede the proceeding already taken by the Magistrate. [469B-D]

JUDGMENT: CRIMINAL AP- PELLATE ORIGINAL JURISDIC- TION: Criminal Appeal No. 271 of 1987. From the Judgment and Or- der dated 3.7. 1986 of the Gauhati High Court in Crl. Revn. No. 229 of 1986. A.K. Ganguli, R.P. Srivastava, P. Purameswarn and Ashok K. Sri- vastava for the Appellant in Crl. A. No. 271 of 1987 and Respondent in W.P. (Crl.) No. 664 of 1986. R.K. Jain, Gaurav Jain, Abha Jain and R.P. Singh for the Respondent in Crl. A. No. 271 of 1987 and Petitioner in

51

W.P. (Crl.) No. 664 of 1986. The Judgment of the Court was deliv- ered by PATHAK, CJ. Special Leave is granted. The respondent Major S.K. Sharma addressed a letter dated 21 December 1985 to Brigadier S.S. Randhawa, Commander, HQ 41 Sub Area alleging that on 15 December, 1985 he was manhandled by Col. Mir Usman Ali in the HQ 41 Sub Area O cers Mess at Jorhat. It was stated that the incident took place in the presence of Major M.M. Subba- iah. Major Sharma was attached to B Camp. Signal Regiment while Col. Ali belonged to HQ 41 Sub Area. Brigadier Randhawa wrote to the Of-cer Commanding, B. Comp. Signal Regiment on 14 January 1986 seek- ing clari cation from Major Sharma on some of the allegations. It ap- pears that correspondence was ex- changed in the matter but apparently Major Sharma, having met with no satisfactory response, led a com- plaint 21 January 1986 in the Court of the Additional Chief Judicial Mag- istrate, Jorhat alleging that Col. Ali had criminally assaulted him and fur- ther that Brigadier Randhawa did not report the matter to the higher authorities and was attempt- ing to protect Col. Ali. It was alleged in the complaint that Col. Ali had com- mitted the o ences under sections 323, 352 and 355 of the Indian Pe- nal Code and Brigadier Randhawa had committed the o ence under sec- tion 2 17 of the Indian Penal Code. The Additional Chief Judicial Magis- trate exam- ined the complaint, and taking cognizance of the o ences al- leged to have been committed by Col. Ali and Brigadier Randhawa it di-

rected that summons be issued to them for their appearance before him on 7 March, 1986. On two applica- tions moved by Major Sharma before him the Chief Judicial Magistrate made an order dated 25 January. 1986 directing that the venue of a Court of Inquiry instituted in respect of certain complaints made against Major Sharma by his Commanding O cer be shifted from Mohanbari, where it was convened, to a place within the jurisdiction of his Court and it was directed further that Ma- jor Sharma should not be moved out of the jurisdiction of the Court dur- ing the pendency of the case. Ma- jor Sharma had complained that the Court of Inquiry had been ordered by Brigadier Randhawa at Mohan- bari as a measure of retaliation be- cause of the institution of the crim- inal case by Major Sharma before the Additional Chief Judicial Magis- trate. On 7 February 1986 the Union of India moved an application before the Chief Judicial Magistrate along with an application dated 3 February 1986 addressed to the Court by Ma- jor General T.S. Chaudhri inform- ing the Chief Judicial Magistrate that the General O cer Command- ing was of opinion that Col. Ali should be dealt with in accordance with the procedure laid down under the Army Act and the Army Rules and the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978, and that therefore, the case may be handed over to the Mil- itary Authorities. It was pointed out by Major Chaudhri in his let- ter that the com- plaint before the Additional Chief Judicial Magistrate

52 Union of India v. Maj S K Sharma 1987

against Col. Ali should, in his opin- ion, be disposed of under the pro- cedure laid down in Army Rule 22 of Army Rules, 1954 and that under s. 125 of the Army Act 1950 read with Army Rule 197A of the Army Rules and the Criminal Court and Court Martial (Adjustment of Juris- diction) Rules 1978, Major General Chaudhri was the competent Mili- tary authority to claim the case. He requested that the case should be handed over to the Military authori- ties for further necessary action. On 12 February 1986 the Union of In- dia moved another application before the Chief Judicial Magistrate along with an application dated 3 February 1986 addressed to the Chief Judicial Magistrate by Major General T.S. Chaudhri as Gener- al O cer Com- manding requesting that the case against Brigadier Randhawa should similarly be handed over to the Mili- tary authorities for necessary action. On 17 February 1986 the Chief Judi- cial Magistrate, Jothat made an or- der disposing of the two requisitions made by Major General Chaudhri. He noted that the cognizance of the o ences had been taken by the Addi- tional Chief Judicial Magistrate and necessary process had been issued against both accused to compel their presence, and that in the light of Rule 3 of the Criminal Court and Court Martial (Adjustment of Juris- diction) Rules 1978 the prayer for trial by a Court martial by the com- petent authority was. allowed. In this connection he made reference to Delhi Special Police Establishment v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548. He directed that the case

be transferred to the Army authori- ties pursuant to the requisitions, and for disposal in accordance with the provisions of the Army Act, 1950 af- ter trial by a court martial at any place within the jurisdiction of his Court, He directed further that the progress of the case should be re- ported to his Court at intervals of two months and ultimately intimat- ing the result thereof, for the purpose of determining whether a successive trial was necessary as provided for in the Army Act. While making the order the Chief Judicial Magistrate noted that the Army authorities had not shifted the venue of the Court of Inquiry mentioned earlier to any place within the jurisdiction of his court as required by his order dated 25 January, 1986, and this prima fa- cie amounted to contempt for which it was open to Major Sharma to ap- ply to the High Court for necessary action. He also directed that Major Sharma should be permitted to pro- ceed on leave to enable him to apply to the Gauhati High Court for ling a writ petition or taking other legal proceedings. On 21, March 1986 the Union of India through the General O cer Commanding led an applica- tion before the Chief Judicial Mag- istrate for modi cation of the order dated 17 February 1986. In that ap- plication it was contended that under the Army Act and the Army Rules it was not mandatory that all dis- ciplinary cases against military per- sonnel should culminate in a trial by the Court Martial and that the di- rections made by the Chief Judicial Magistrate with regard to the trial of Brigadier Randhawa and Col. Ali

53

by Court Martial were in contraven- tion of the Army Act and the Army Rules and the Criminal Court and Court Martial (Adjust- ment of Ju- risdiction) Rules 1978. It was as- serted that the proposed disciplinary action would be initiated by the Gen- eral Commanding O cer after an in- vestigation of the alleged o ences in accordance with Army Rule 22. It was prayed that the order dated 17 February 1986 be reviewed by delet- ing the direction for a trial by Court Martial at a place within the juris- diction of the Court of the Chief Judicial Magistrate and of the di- rection further that the progress of the case should be intimated to the Chief Judi- cial Magistrate at inter- vals of two months. On 7 April 1986 the Union of India led an- other application making more de- tailed submissions for modi cation or the other dated 17 February 1986. A third application was moved by the Union of India on 30 April 1986 to the Chief Judicial Magistrate re- questing that the records of the case be handed over to the Army author- ities. These applications were dis- posed of the Chief Judicial Magis- trate by his order dated 8 May 1986. In that order he noted that the Addi- tional Chief Judicial Magistrate had, on receipt of the complaint examined the complainant Major S.K. Sharma under s. 200 of the Cr. P.C. and had taken cognizance of the o ence under s. 190(A) of the Code and on being satis ed of the existence of a prima facie case process had been issued by him under s. 204(A) of the Code. He noted that the judicial process for ascertaining the prima facie exis-

tence of a case had thereby been com- pleted. He held that in the circum- stances the trial of the accused o - cers by a court martial appeared to be mandatory under the provisions of s. 475 of the Code. He observed that the preliminary investigations by a departmental court of inquiry did not seem permissible in the case. However, having regard to s. 124 of the Army Act which conferred ab- solute power on the Army authori- ties to choose the venue of trial and keeping in view the administrative convenience of the Army authorities he decided to accept the request of the General O cer Commanding for deleting the direction in respect of the venue of the trial. The Chief Ju- dicial Magistrate also directed that instead of intervals of two months the Army authorities should, having re- gard to the provision of s. 127 of the Army Act, inform his Court as to the progress of the case at inter- vals of four months. On 14 June 1986 the Union of India through the Gen- eral O cer Commanding led a revi- sion petition before the High Court at Gauhati, which was disposed of by the High Court by its order dated 3 July 1986. The High Court inter- fered with the order of the Chief Ju- dicial Magistrate in so far only that it deleted the direction requiring the Army authorities inform the Chief Judicial Magistrate of the progress of the case at intervals of four months, and it directed instead that the re- sult of the Court Martial proceedings should be communicated to the Chief Judicial Magistrate as soon as may be in accordance with Rule 7 of the Criminal Courts and Court Martial

54 Union of India v. Maj S K Sharma 1987

(Adjustment of Jurisdiction) Rules, 1978. It may be mentioned that according to the order of the High Court the only submission raised on behalf of the appellant in the revision petition was that the Magistrate had no jurisdiction to direct the Court Martial to submit reports relating to the progress of the case, including the result thereof, at intervals of four months. Thereafter a special Leave Petition was led by the Union of India, out of which the present ap- peal arises. Although it appears that the only point raised before the High Court on the revision petition related to the direction that the Army au- thorities should report periodically to the Chief Judicial Magistrate in regard to the progress of the case, learned counsel for the appellants has raised a more fundamental question before us. That question is whether it is open to the Army authorities to constitute a Court of Inquiry, enter upon an investigation of the charges under Rule 22 of the Army Rules and determine whether there is a case for trial by a Court Martial. Learned Counsel contends that the proceed- ings already taken by the Additional Chief Judicial Magistrate must be ig- nored for the purpose and the Army authorities are not bound to try the accused by a Court Martial. Al- though the point was not taken be- fore the High Court we have permit- ted it to be raised before us and it has been argued by learned counsel at length. It is apparent from the provisions of the Code of Criminal Procedure that it is open to a Mag- istrate to inquire into a complaint of an o ence alleged to have been com-

mitted by a military person, where it fails within its jurisdiction, and to take proceedings either for his trial or for committing the case to the Court of Sessions for trial. Likewise, there is power under the Army Act in a duly con- stituted Army authorities to investigate into a charge against a military person accused of an o ence triable under the Army Act, and af- ter such hearing to decide whether his trial by a Court Martial should be ordered. In the former case, ss. 200 to 203 of the Code of Criminal Pro- cedure provide the procedure to be followed by Magistrates taking cog- nizance of an o ence on a complaint. The Magistrate is required to exam- ine on oath the complaint and the witnesses present and reduce the sub- stance of such examination to writ- ing to be subsequently signed by the complainant and the witnesses and by the Magistrate. That is the pro- cedure except when the complaint is made in writing by a public ser- vant or the Magistrate makes over the case for trial or inquiry to an- other Magistrate. The Magistrate may either inquire into the case him- self or direct an investigation to be made by a police o cer or by such other person as he thinks t for the purpose of deciding whether or not there is su cient ground for proceed- ing. Where, however, it appears to the Magistrate that the o ence com- plained of its triable exclusively by the Court of Session no such direc- tion for investigation can be made by him. For the purpose of inquiry be may take evidence of witnesses on oath. If the Magistrate is of opin- ion that the o ence complained of is

55

triable exclusively by the Court of Session he must call upon the com- plainant to produce all his witnesses and examine them on oath. If af- ter considering the statement on oath of the complainant and of the wit- nesses and the result of the inquiry or investigation directed by him the Magistrate is of opinion that there is no su cient ground for proceed- ing he must dismiss the complaint. Where 465 the Magistrate is of opin- ion that there is su cient ground for proceeding he must adopt the pro- cedure set forth in sections 204 on- wards. He must issue process for the attendance of the accused. In certain cases he may dispense with the personal attendance of the ac- cused and permit him to appear by his pleader. Where, however, the proceeding is taken by an Army au- thority under the Army Act reference must be made to the provisions of Rule 22 onwards of the Army Rules. The Rules provide for the hearing of a charge, in which the accused has liberty to cross examine any witness against him and to call any witnesses and make any statement in his de- fence. If the Commanding O cer investigating the charge nds no of- fence has been committed he must dismiss the charge. He may also do so if, in his discretion, he is satis-ed that the charge has not to be proceeded with. If the charge is to be proceeded with he may pass any of the orders detailed in Rule 22(3). They include proceedings for trial by a Court Martial. It is clear that these provisions of the Army Rules run parallel to the provisions of the Code of Criminal Procedure

adverted to earlier. Now inasmuch as there is always a possibility of the same o ence being triable either by a Criminal Court or by a Court Mar- tial the law has attempted to resolve the competings claims of the civil au- thority and the military authority in such cases. Section 475 of the Code of Criminal Procedure empowers the Central Government to make rules as to cases in which persons shall be tried by a Court to which the Code applies or by a Court Martial, and the section provides that whenever a person is brought before a Magis- trate and charged with an o ence for which he is liable to be tried either by a Court to which the Code applies or by a Court Martial such Magis- trate must have regard to such rules and must, in proper cases, deliver the person together with a statement of the o ence of which he is accused to the Commanding O cer of the unit to which he belongs for the pur- pose of being tried by a Court Mar- tial. The language used in s. 475 is signi cant. It refers to a person who is brought before a Magistrate and charged with an o ence. In other words, he must be a person respect- ing whom the Magistrate has taken the proceedings envisaged by ss. 200 to 204 of the Code. He will be a person in respect of when the Mag- istrate has found that there is a case for trial. It is for that reason that s. 475 goes on to say that when such person is delivered to the Command- ing O cer of the unit to which he be- longs it will be for the purpose of be- ing tried by a Court Martial. When he is so delivered, a statement of the o ence of which he is accused will

56 Union of India v. Maj S K Sharma 1987

also be delivered to the Commanding O cer. The relevance of delivering such statement can be easily under- stood, for it is to enable the Army authority to appreciate the circum- stances in which a Court Martial is required by the law. We now turn to the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. These Rules have been framed under s. 475 of the Code of Criminal Procedure. When a per- son subject to military, naval or air force law or any other law relating to the Armed Forces is brought be- fore a Magistrate and charged with an o ence for which he is also liable to be tried by a Court Martial, the Magistrate will not proceed to try such person or to commit the case to the Court of Session unless (a) he is moved to that e ect by a compe- tent military, naval or air force au- thority or (b) he is of opinion for rea- sons to be recorded, that he should so proceed or to commit without be- ing moved thereto by such authority. Rule 3, in our opinion, comes into play at the point where the person has been brought before a Magistrate and charged with an o ence. That is the stage adverted to earlier where the accused is directed to appear be- fore the Magistrate and is charged with an o ence after the Magistrate has determined that there is a case for trial. Before proceeding further with the case and either proceeding to try the accused or to commit the case to the Court of Session the Mag- istrate must, under Rule 4, give writ- ten notice to the Commanding O - cer of the accused and refrain for a period of 15 days from doing any of

the acts or making any of the orders in relation to the trial of the accused speci ed in Rule 4. In the event of the Magistrate entering upon the trial of the accused or committing the case to the Court of Session at the instance of the military, naval or air force authority it is open to such authority or the Commanding O - cer of the accused to give notice sub- sequently under Rule 5 to such Mag- istrate that, in the opinion of such of-cer or authority the accused should be tried by a Court Martial. Upon such notice, the Magistrate, if he has not taken any action or made any order referred to speci cally in Rule 4 before receiving such notice, must stay the proceedings and deliver the accused together with the statement referred to in s. 475(1) of the Code to the O cer speci ed in that subsec- tion. In the other kind of case, where the Magistrate intends to proceed to try the accused or to commit the case to a Court of Session without being moved in that behalf by the military, naval or air force authority, and he has given notice under Rule 4 to the Commanding O cer or the military, naval or air force authority of his in- tention to do so, Rule 6 empowers the Commanding O cer or the com- petent authority to give notice to the Magistrate within the aforesaid pe- riod of 15 days or in any event be- fore the Magistrate takes any action or makes any order referred to in that Rule, that in the opinion of such of-cer or authority the accused should be tried by a Court Martial. Upon such notice the Magistrate must stay the proceedings and deliver the ac- cused together with the statement re-

57

ferred to in s. 475(1) of the Code to the o cer speci ed in that sub- section. It is clear that when the accused is made over by the Magis- trate to the Commanding O cer or the competent military, naval or air force authority it is for the purpose of trial by a court martial or other e ectual proceedings to be taken or ordered to be taken against him. For Rule 7(1) provides that when an ac- cused has been delivered by a Mag- istrate under Rule 5 or 6 the Com- manding O cer or the competent military, naval or air force author- ity must, as soon as may be, inform the Magistrate whether the accused has been tried by a Court Martial or other e ectual proceedings have been taken or ordered to be taken against him. The communication of such in- formation is mandatory. When the Magistrate is informed that the ac- cused has not been tried or other e ectual proceedings have not been taken or ordered to be taken against him, he is obliged to report the cir- cumstance to the State Government and the State Government, in consul- tation with the Central Government may take appropriate steps to ensure that the accused person is dealt with in accordance with law. The policy of the law is clear. Once the Crim- inal Court determines that there is a case for trial. and pursuant to the aforesaid rule, delivers the accused to the Commanding O cer or the com- petent military, naval or air force au- thority, the law intends that the ac- cused must either be tried by a Court Martial or some other e ectual pro- ceedings must be taken against him. To ensure that proceedings are taken

against the accused the Rules require the Commanding O cer or the com- petent authority to inform the Mag- istrate of what has been done. Rule 7(2) appears to envisage the possibil- ity that the Commanding O cer or the competent military, naval or air force authority may not try the ac- cused or take e ectual proceed- ings against him even where the Mag- istrate has found a case for trial. To cover that exigency it provides that the State Government in con- sultation with the Central Govern- ment, on a report from the Magis- trate to that e ect, may take appro- priate steps to ensure that the ac- cused does not escape the attention of the law. The policy of our Con- stitutional polity is that no person should be regarded as being above the law. Military. naval or air force personnel are as much subject to the law as members of the civil popu- lation. It is signi cant that Rule 8 empowers the Magistrate. on com- ing to know that a person subject to the military. naval or air force law or any other law relating to the Armed Forces has committed an o ence and proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except through military. navel or air force authorities. to re- quire the Commanding O cer of 468 such person either to deliver such person to a Magistrate for being pro- ceeded against according to law or to stay the proceedings against such person before the Court Martial if since instituted, and to make a refer- ence to the Central Government for determination as to the Court be-

58 Union of India v. Maj S K Sharma 1987

fore which the proceedings should be instituted. Reference may also be made to s. 127 of the Army Act. It is an important provision. It provides that a person convicted or acquit- ted by a Court Martial, may, with the previous sanction of the Cen- tral Government, be tried again by a Criminal Court for the same of- fence or on the same facts. This pro- vision is an exception to Article 20 of the Constitution which provides that no person shall be prosecuted and punished for the same o ence more than once. The provision has been made possible by reason of Arti- cle 33 of the Constitution which con- fers power on Parliament to modify any Fundamental Right in its appli- cation to the members of the Armed Forces. It is to enable the opera- tion and application of s. 127 of the Act that Rule 7(1) of the Crim- inal courts and Court Martial (Ad- justment of Jurisdiction) Rules, 1978 requires the Commanding O cer or the competent military, naval and air force authority to inform the Magis- trate whether the accused has been tried by a Court Martial or other ef- fectual proceedings have been taken against him. Our attention has been drawn by learned counsel for the ap- pellants to s. 125 of the Army Act. Section 125 provides that when a Criminal Court and a Court Martial have each jurisdiction in respect of an o ence it will be in the discretion of the Commanding O cer of the ac- cused to decide before which Court the proceedings shall be instituted. This provision is of no assistance in deciding whether it is open to the Army authority to take proceedings

for determining prima facie whether there is substance in the allegations made against the accused and de- cline to try him by a Court Mar- tial or take other e ectual proceed- ings against him even where a Mag- istrate has taken cognizance of the o ence and nds that there is a case for trying the accused. On the afore- said analysis we are of opinion that the Army authority is not entitled to ignore the proceeding taken by the Additional Chief Judicial Mag- istrate and to invoke the provisions of Rule 22 and related rules of the Army Rules. The Additional Chief Judicial Magistrate having hold that there is a case for trying the two accused o cers and having directed their appearance, the Army author- ity must proceed to held a court mar- tial for their trial or take other ef- fectual proceedings against them as contemplated by the law. The con- tention advanced by learned coun- sel for the appellants to the con- trary must be rejected. We have also been referred to the provisions of the Army Rules relating to Courts of In- quiry, and learned counsel for the ap- pellants urges that notwithstanding the proceeding taken by the Addi- tional Chief Judicial Magistrate it is open to the Army authority to hold a Court of Inquiry and deter- mine whether there is any case for try- ing the accused by a Court Martial. We have been taken through Rule 177 and the connected Rules which deal with the institution and con- duct of Courts of Inquiry, but we see nothing in those provisions which can support the contention now raised before us. If, on the analysis de-

59

tailed earlier, it is not open to the Army authority to have recourse to Rule 22 and investigate the charge directed against the accused o cer in this case. for the same reason it is not open to it to hold a Court of Inquiry and supersede the pro- ceedings already taken by the Addi- tional Chief Judicial Magistrate. We may mention that learned counsel for the parties placed a number of cases before us, but having carefully pe- rused the judgments in those cases we do not nd any declaration of law therein which is inconsistent with the view taken by us. Accordingly, the appeal is dismissed. In the Crimi- nal Writ Petition Major S.K. Sharma prays for a number of reliefs. The material reliefs are that a direction be issued to the Army authorities to postpone the return of the peti- tioner to the Unit to which he has been posted and direct the Army au- thorities to stay all parallel proceed- ings against the petitioner until the hearing and disposal of their Special

Leave Petition. So far as the rst submission as concerned it refers to the mental and physical stress suf- fered by the petitioner, apparently necessitating his treatment at a hos- pital with psychiatric facilities. We do not think it necessary to issue any direction because, we think, it is a matter which can be adequately and humanely dealt with by the Army authorities. If indeed the petitioner should be given a posting where the requisite medical facilities are avail- able we have no reason to doubt that the Army authorities will a ord such posting to the petitioner. In doing so it will be open to the Army au- thorities to obtain the latest medi- cal report respecting the condition of the petitioner. As regards the second relief, we have already disposed of the special leave petition today and, therefore, no order need be passed in respect of that relief. In the result the writ petition is dismissed. H.L.C. Petition dismissed.

60 Union of India v. Maj S K Sharma 1987

Chapter 4

S.K. Rao v. Union Of India 1967

S.K. Rao v. Union Of India (Uo) on 23 February, 1967 Bench: K Hegde, J Singh

JUDGMENT

K.S. Hegde and Jagjit Singh, JJ.

(1)On April 9, 1959, the Cen- tral Government directed the re- moval from service of Captain S.K.. Rao under rule 14 of the Army Rules, 1954. A petition under article 226 of the Constitution was led by Cap- tain Rao for quashing the order of his removal from services on the ground that rule 14 is ultra vires the Army Act, 1953, and therefore, ac- tion taken there under is without the authority of law.

(2)The petitioner was a com- missioned o cer in the Indian Army Ordnance Corps Training Centre, Se- cundarabad. It was alleged that on April 4,1958, the petitioner commit- ted acts of gross-misconduct. The al- legations against him were as follows :-

(I)Knowing her as the daughter

of Capt. Raghbir Singh, he (Capt S.K. Rao) assisted Kumari Prakash in going away from her perents' pro- tection and planning to run away with an Ob, by (aa) receiving her in his house in the early hours of 4th April 1958, and taking her in his sco- toer to 511 GR. Lines, (bb) arrang- ing her meeting with 9402844 Rfn Jai Prashai Lemb'J of 5/11 GX. at the unit lines and, (cc) acquiescing in the girl being met by the Ob latter at teashop nearby to receive a present of a sari and a blouse from him in his presence. The O cer thus actively abetted in the attempt of brtoher of-cer's daughter to elope with an OB. (ii) He took Kumari Prakash to a ho- tel 'Saidiya Lodge' in Hyderabad and got a room to themselves by imper- sonating and giving a false identity as \Mr. and Mrs. Prakash."

(3) An inquiry into the matter was made by Court of Inquiry. The Chief of the Army Sta , after going through the proceedings of the Court of Inquiry, Considered that the con-

62 S.K. Rao v. Union Of India 1967

duct of Captain Rao was most unbe- coming an o cer and as he was of opinion that trial of the o cer by a General Court Martial was inexpedi- ent, he ordered administrative action to be taken under rule 14.B, memo- randum ibid, 6914/88 No. 13802/15/ Tb, dated September 4, 1958, the pe- titioner was called upon to submit his explanation and defense regard- ing the allegations against him. The explanation of the petitioner, on be- ing submitted, was placed before the Central Government, who found it unsatisfactory and an order (dated April 9, 1989) was passed removing the petitioner from service.

(4)In the petition a some what di erent version was given of what had happened. According to the pe- titioner, he did not in any way assist Kumari Prakash, daughter of Cap- tain Raghbir Singh, to go away from her parents' house. It was stated by him that with the help of Major A.C. Gupta he had taken book. Kumari Prakash from a hotel to her parents' house.

(5)For purpose of this petition, it is, however, not necessary to consider as to which of the two versions is cor- rect. That was a matter Fur the com- petent authority to determine. The only point which has to be considered is the validity of rule 14 of the Army Rules, 1954 (hereinafter referred to as \the Rules"). If rule 14 is in- tern vires the Army Act, 1950 (here- inafter referred to as \the Act"), the petitioner has no case.

(6)Admittedly the petitioner was subject to the Act. The Rules, in- cluding rule 14, purported to have

been made by the Central Govern- ment under the rule-making powers given by section 191 of the Act. Rule 14 reads: -

14(1) When after considering the reports on \an oncer's misconduct, the Central Government is satis ed or the C-in-C is of the opinion, that the trial of the o cer by a Court Martial is inexpedient or impractical but considers the further retention of the said o cer in the service as un- desirable, the C-in-C shill communi- cated the view of the Central Gov- ernment or his views, as the case may be, to the o cer together with all re- ports adverse to him and he shall be called upon to submit his explana- tion and defense. (2) In the event of the explanation of the o cer be- ing considered unsatisfactory by the C-in-C, or when so directed by the Central Government, the case shall be submitted to the Central Govern- ment with the o cer's defense and the recommendation of the C-in-C as to whether the o cer should be| (a) dismissed from the service; or (b) re- moved from the service; or (e) called upon to retire; or (d) called upon to resign. (3) The Central Government, after due consideration of the reports the o cer's defense, if any, and the recommendation of the C-in-C, may dismiss or remove the o cer with or without pension or call upon him to retire or resign, on his refusing to do so the o cer may be retired from or gazetted out of the service ...gratuity if any admissible to him."

(7) Thus under rule 14 action can be taken for misconduct against an o cer, whose further retention

63

in service is considered undesirable, without the o cer being tried by a General Court Martial. But before doing so, the o cer must be called upon to submit his explanation and defense. If the explanation is found unsatisfactory, the Central Govern- ment has the power to dismiss or re- move the o cer.

(8)As stated above, the Rules were made under section 191 of the Act. Sub section (1) of section 191 give power to the Central Govern- ment to make rules for the purposes of carrying into e ect the provisions of the Act. Sub-section (2) men- tions speci c matters about which rules may be made, but this power is \without prejudice to the generality of the power conferred by sub-section (1)". Clause (a) of sub-section (2) refers to the removal, retirement, re- lease or discharge from service of per- sons subject to the Act.

(9)So far as the impugned rule (rule 14) is concerned. its validity depends upon the fact as to whether it enables to carry in to e ect any provision of the Act. In order to be valid, the rule must net be inconsis- tent with the provisions of the Act. In the State of U.P. v Babu Ram'. it was observed by their Lordships of the Supreme Court that one of the principles fundamental to the rules of construction was that the rules should be consistent with the provi- sions of the Act.

(10)Some provisions of the Act may appropriately be mentioned here. Section 18 provides that ev- ery person subject to the Act shall hold o ce during the pleasure of the

President. Section 19 is to the ef- fect that subject to the provisions of the Act and the rules and regulations made there under, the Central Gov- ernment may dismiss or remove from service any person subject to the Act. Chapter Vi, containing sections 34 to 70, deals with o ences that may be committed by persons subject to the Act. Section 45 is important for pur- poses of this case and is reproduced below:-

\45.Any o cer, junior commis- sioned o cer or warrant o cer who behave in a manner unbecoming his position and the character expected of him shall, on conviction by court martial, if he is an o cer, be liable to be cashiered or to su er such less punishment as is in this Act men- tioned; and, if he is a junior com- missioned o cer or a warrant o cer be liable to be dismissed or to su er such less punishment as is in this Act mentioned".

(11) Shri S S. Chadha, learned counsel for the petitioner, contended that as the services of the petitioner were not terminated by the Presi- dent, section 18, which provides that every person subject to the Act shall hold o ce during the pleasure of the President, has no application to the facts of the present case. Elaborating his argument, he seated that a dis- tinction has been made in Sections 18, and 19 between the power of the President and the Central Govern- ment. While the President could ter- minate the services of the petitioner at his pleasure, the Central Govern- ment under section 19, could only act \subject to the provisions of the

64 S.K. Rao v. Union Of India 1967

Act and the rules and regulations made there under". It was urged that as the Act contained speci c provisions for punishing \unbecom- ing conduct", a rule could not have been validly made in derogation of section 46 to give power to the Cen- tral Government to remove an o cer without being tried and convicted by court martial. Rule 14 was, there- fore, stated to be ultra vires.

(12)On a plain reading of section 19, there can be no doubt that the power of the Central Government to dismiss or remove from service any person subject to the Act can be ex- ercised only subject to the provisions of the Act and the rules and reg- ulations made there under. As al- ready stated, rules can be made un- der section 191 of the Act for the pur- pose of carrying into e ect the provi- sions of the Act. Regulations can be made under section 192, but we are not concerned with them, as rule 14 forms part of the Rules which were made under section 191 of the Act. In the return submitted on behalf of the respondent, the Union of India, the stand taken was that rule 14 had been made under section 191(2)(a) of the Act and that for removal from service under section 19, read with rule 14 a court martial was not nec- essary.

(13)Shri S.N. Shankar, learned counsel for the Union of India, aid not dispute the proposition that act made a, distinction between the pow- ers of \the President" and \the Cen- tral Government". He, however, con- tended that the power given to the Central Government by section 19

was not fettered by the provisions of section 45 of the. Act. According to him, section 19 was independent of section 45 and consequently rule 14 could not be regarded as incon- sistent with the provisions of section 45 of the Act. In this connection, a reference was also made by him to a recent judgment of Kapur, J. in the case of Om Parkash Bhardwaj v. The Union of India".

(14) Under Article 310 of the Constitution, every person, who is a member of the defense service, holds o ce during the pleasure of the Pres- ident. In the case of civil servants the Pleasure doctrine in subject to certain restrictions provided in Ar- ticle 311, but that has no applica- tion to members of the defense ser- vice. Section 18 embodies the rule enunciated in Article 310 of the Con- stitution so far as persons subject to the Act are concerned. The removal of the petitioner having been made by the Central Government, under section 19 of the Act, and not by the President, the pleasure doctrine can not be invoked. The Act, as al- ready stated, makes a distinction be- tween the power of the President and the Central Government. the power of the Central Government to dis- miss or remove a person subject to the Act was speci cally made sub- ject to the provisions of the Act and the rules and regulations, made there under such rules and regulations, in order to be valid, should not be in- consistent with the provisions of the Act. Under the Act, \unbecoming conduct" of an o cer can be pun- ished only under section 45.

65

(15)It follows that except where action is taken by the President, un- der section 18 of the Act, any o cer, junior commissioned o cer or war- rant o cer subject to the Act can only be punished under section 45 of the Act for behaving in a manner un- becoming the position and character expected of him.

(16)The implication of the words \subject to the provisions of this Act", occurring in section 19, is that power of the Central Government to dismiss or remove from service any person subject to the Act can not be exercised contrary to the provisions of the Act or in other words in dero- gation of the provisions of section 45. If the intention of the legislature had been to empower the Central Gov- ernment to exercise those powers be- ing restricted by the provisions of the Act, then the use of the words subject to the provisions of this Act was unnecessary. That the legisla- ture did not intend to give unfet- tered powers to the Central Govern- ment for purpose of dismissing or removing from service persons sub- ject to the Act nds further support from the use of the words \subject to the rules and regulations made there under". Rules and regulations can be made for the purpose of carrying into e ect the provisions of the Act, which means that a rule or regula- tion can not be made which is out- side the scope of any of the provisions of the Act. The contention of the learned counsel for the Union of India that section 19 of the Act is indepen- dent of section 45 or that section 19 gives independent power to the Cen-

tral Government for dismissing cr re- moving persons subject to the Act is, in our opinion, not tenable. Any such interpretation will amount to ignor- ing in section 19 the words \subject to the provisions of this Act and the rul(r).s and regulations made there under".

(17)The contention of Shri Shanker that the impugned rule was made with a view to facilitate the proper exercise of the power given to the Central Government under sec- tion 19 overlooks in that section the crucial words \subject to the provi- sions of this Act". The e ect of these words is that if a person subject to the Act is liable under any of the provisions of the Act to be dismissed or removed from service as a pun- ishment for an o ence, than with- out complying with the requirements of these provisions action can not be taken by the Central Government by purporting to act under section 19 of the Act.

(18)Rule 14 of the Rules clearly goes beyond the scope of sections 19,

45and 191 of the Act and is incon- sistent with those provisions. The power of the Central Government to dismiss or remove from service be- ing subject to the provisions of the Act has to be exercised in conformity with section 46 of the Act. The rule, as it exists, has the e ect of abrogat- ing the provisions of but sections 19 and 45. It appears that at the time of making this rule the opening words of section 19 \subject to the provisions of this Act" were lost sight of.

(19)The case of Om Parkash Bhardwaj, cited by the learned coun-

66 S.K. Rao v. Union Of India 1967

sel for the Union of India, i elated to dismissal of a Wing Commander on the ground of \moral turpitude", un- der section 19 of the Air Force Act, 1950, section 19 of the Act, 1950, corresponds to section 19 of the Act. while dealing with section 19 of the Air Force Act, 1950 in that case, the learned Judge made the following ob- servations :- \SECTION 19 of the said Act provides the tenure of ser- vice to be during the pleasure of the President. Section 19 gives an ab- solute power to the Central Govern- ment to dismiss or remove from ser- vice' any person-subject to this Act'. It is abundantly recognised that Per- sons who enter the military service and take the State's pay, and who are content to act under the Presi- dent's commission, although they do not cease to be citizens in respect of responsibility yet they do, by a com- pact which is intelligible, and which requires only the statement of it to the consideration of any one of com- mon sense become subject to mili- tary rule and military discipline. In case of civil servants certain special safeguards have been provided by Ar- ticle 311 of the constitution. Those safeguards admittedly do not extend to the army personnel. Admittedly, no rules have been framed in this be- half and there is, therefore, no ques- tion of any violation thereof. If any rules bad been framed and violated, possibly di erent considerations may have arisen. As the law however stands at present it seems to recog- nise that employment in Army is not a right but only a privilege by the sovereign at will and e cient man- agement demands that power to ap- point should necessarily include the

power to dismiss. In Army mat- ters the legislature has conferred on the Government the same propri- etary, rights as provided to employ- ers to hire and re without restric- tions............"

With great respect, we are unable to agree with this view. It appears that distinction between sections 18 and 19 of the Air Force Act,1950,was not urged before his Lordship and the e ect of the words \subject to the provisions of this Act" occurring in section 19 of that Act, was nut taken into consideration

(20)The rule of pleasure as laid down in Article 310 of tie Constitu- tion has been embodied in section 18 of the Act. When the services of a person subject to the Act are ter- minated by an authority ether then the President, then it is incumbent on that authority to proceed in ac- cordance with the provisions of the Act. No rule can be validly made un- der section 91 of the Act which may authorise the Central Government or any other authority to exercise the power of dismiss I or removal in a manner inconsistent with any provi- sion of the Act

(21)In conclusion, we hold that rule 14 of the Rules is ultra vires the provisions of sections 19, 45 and 191 of the Act. The removal of the peti- tioner under rule 14 can not be sus- tained as the order of removal su ers from lack of jurisdiction. The peti- tion is, therefore, accepted and the order, dated April 9, 1959 whereby the Petitioner was removed from ser- vice, is quashed. In the circum- stances of the case, there will be no order as to costs.

BENCH: DWIVEDI, S.N. BENCH: DWIVEDI, S.N. SHELAT, J.M. PALEKAR, D.G.
CITATION: 1972 AIR 2548 1973 SCR (1)1010 1972 SCC (2) 692 CI- TATOR INFO : R 1986 SC1655 (8) RF 1987 SC1878 (4)
ACT: Code of Criminal Proce- dure 1898, s. 549(1) and rules made thereunderArmy Act 1950, ss. 122 and 125-Army o cer charged with o ences under I.P.C. and Pre- vention of Corruption Act 1947 by Special Judge-Procedure under s. 549(1) and r. 3 not followed-Charges whether liable to be quashed-Lapse
PETITIONER: DELHI SPE- CIAL POLICE ESTABLISHMENT, NEW DELHI
v.
RESPONDENT: LT. COL. S. K. LORAIYA

Chapter 5

Delhi Police Est v. Lt Col S K Loraiya 1972

DELHI SPECIAL POLICE ES- of more than three years between TABLISHMENT, NEW DELHI v. commission of o ences and framing LT. COL. S. K. LORAIYA of chargesCourt martial whether has jurisdiction to try o ences-Word ju- risdiction in s. 549(1) Cr. P.C. and

s. 125 Army Act, meaning of.

HEADNOTE: The respondent who was an army o cer was alleged to have committed certain o ences

under the Indian Penal Code and the DATE OF JUDGMENT24/08/1972Prevention of Corruption Act 1947.

The o ences were alleged to have been committed in the year 1962. The special judge, Gauhati charged him with these o ences in the year 1967. The High Court quashed the charges on the ground inter alia that the procedure in s. 549(1) Cr. P.C. and the rules made thereunder had not been followed. The appellant in appeal by special leave to this Court contended that since more than three years had elapsed between the com- mission of the o ences and the fram- ing of the charges the court martial had in view of s. 122(1) of the Army Act ceased to have jurisdiction to

68 Delhi Police Est v. Lt Col S K Loraiya 1972

try the said o ences and therefore s. 549(1) and the rules made thereun- der were not attracted to the case. HELD, Section 549(1) Cr. P.C. is designed to avoid the con ict of ju- risdiction in respect of o ences which are triable by both the ordinary crim- inal court and the court- martial. The clause for which he is liable to be tried either by the court to which this code applies or by a court martial quali es the preceding clause when any person is charged with an of- fence in s. 549(1). Accordingly the phrase ,is liable to be tried either by a court to which this Code applies or a court martial imports. that the of- fence for which the accused is to be tried should be an o ence of which cognizance can be taken by an ordi- nary criminal court as well as court martial. The phrase is intended to refer to the initial jurisdiction of the two courts to take cognizance of the case and not to their jurisdiction to decide on merits. It was admitted that both the ordinary criminal court and the court martial had concurrent jurisdiction with respect to the of- fences for which the respondent had been charged by the special judge. So s. 549 and the rules made there- under were attracted to the case in hand. [1013H-1014C] Again, sub- section (3) of s.122 of the Army Act provides that while computing the period of three years speci ed in sub- section (1), any time spent by the ac- cused as a prisoner of war or in enemy territory, or in evading arrest after the commission of the o ence, shall be excluded. On a con- joint read- ing of sub-ss. (1) and (3) of s.122 it is evident that the court martial

and not the ordinary criminal court has got jurisdiction to decide the is- sue of limitation. If the court martialnds that it cannot try the o ence on account of the expiry of three years from the commission of the o ence the Central Government can under s.127 of the Act sanction the trial of the o ender by an ordinary criminal court. [1014D-F]

Section 125 of the Army Act pro- vides that when a criminal court and a court martial have each jurisdiction in respect of an o ence, it shall be in the discretion of the commanding o cer to decide before which court the proceedings shall be instituted. Section 125 supports the view that the court martial alone has jurisdic- tion to decide the issue as to limi- tation. [1014H] The word jurisdic- tion in s.125 really signi es the initial jurisdiction to take congnizance of a case. It refers to the stage at which proceedings are instituted in a court and not to the jurisdiction of the or- dinary criminal court and the court martial to decide the case on merits. Section 549(1) should be construed in the light of s.125 of the Army Act. Both the provisions have in mind the object of avoiding a collision be- tween the ordinary criminal court and the court martial. Both of them should receive the same construction. [1015B] It was an admitted fact that in the present case the procedure speci ed in rule 3 was not followed by the Special Judge, Gauhati before framing charges against the respon- dent. Section 549(1) Cr.P.C. and rule 3 are mandatory. Accordingly the charges framed by the Special

69

Judge against the respondent could not survive. [1013C]

JUDGMENT: CRIMINAL AP- PELLATE JURISDICTION : Crim- inal Appeal No. 79 of 1970. Ap- peal by special leave from the judg- ment and order dated May 23, 1969 of the Assam & Nagaland High Court in Cr. Re- vision No. 31 of 1967. D. Mukherjee, G. L. Sanghi and R. N. Sachthey, for the appellant. A. S. R. Chari and R. Nagaratnam, for the respondent. The Judgment of the Court was delivered by. Dwivedi, J. The respondent, Lt. Col. S. K. Loraiya, is in the army Service. In November-December, 1962, he was posted as Commander, 625, Air Field Engineers, Tejpur. He was charged under s. 120B, Indian Penal Code read with s. 5 (1) (e) :and (d) and s. 5(2) the Prevention of Corruption Act and under ss. 467 and 471 I.P.C. by the Special Judge, Gauhati, ap- pointed under the Prevention of Cor- ruption Act, in respect of the o ences alleged to have been committed by him in November-December, 1962, as Commander, 625, Air Field En- gineers, Tejpur. The trial started on June 7, 1966. but the charges were framed against him by the Special Judge on January 7, 1967. The re- spondent led a revision against the framing of the charges in the High Court of Assam and Nagaland. The High Court allowed the revision and quashed the charges. Hence this ap- peal by the Delhi Special Police Es- tablishment, New Delhi, by special leave under Art. 136 of the Con- stitution. The High Court quashed the charges for two reasons : (1) The

charges were framed by the Special Judge without following the proce- dure speci ed in the Rules made un- der s. 549 Cr.P.C.; and (2) the trial was held in the absence of a sanc- tion by the appropriate authority un- der S. 196A(2) of the Code of Crim- inal Procedure in respect of the of- fences under s. 5 of the Prevention of Corruption Act. The High Court took the view that such sanction was essential as the o ence under s. 5 of the Prevention of Corruption Act is a non-cognizable o ence. Coun- sel for the appellant has submitted that both the reasons given by the High Court are erroneous. Taking up the rst reason rst, s. 5(1)(b) of the Criminal Law Amendment Act, 1966, could not give exclusive juris- diction to the Special Judge, Gauhati lo try the respondent. It is true that the trial started against him on June 7, 1966, but the charges were framed on January 7, 1967, i.e., long after June 7, 1966. Section 5(1)(b) does not apply where charges are framed after June 7, 1966. So, prima facie both the ordinary criminal court and court martial have concurrent juris- diction to try the respondent for the aforesaid o ences. And S. 549(1) Cr.P.C. applies to such a situation. The material part of S. 549(1) reads : The Central Government may make rules consistent with this Code and the Army Act as to the cases in which persons subject to military law shall be tried by a court which this Code applies or by a court martial; and when any person is brought before a Magistrate and charged with an of- fence for which he is liable to be tried either by a court to which this Code

70 Delhi Police Est v. Lt Col S K Loraiya 1972

applies or by a Court Martial, such Magistrate shall have regard to such rules and shall in appropriate cases deliver him, together with a state- ment of the o ence of which he is ac- cused, to the commanding o cer of the regiment, corps . or detachment to which he belongs or to the com- manding o cer of the nearest mili- tary station for the purpose of be- ing tried by Court Martial. The Cen- tral Government has framed under s. 549(1) Cr. P.C. rules which are known as the Criminal Courts and Courts Martial (Adjustment of juris- diction) Rules, 1952. The relevant rule for our purpose is rule 3. It requires that when a person subject to military, naval or air force law is brought before a Magistrate on ac- cusation of an o ence for which he is liable to be tried by a court martial also, the Magistrate shall not pro- ceed with the case unless he is re- quested to do so by the appropriate military authority. He may, however, proceed with the case if he is of opin- ion that he should so proceed with the case without being requested by the said authority. Even in such a case, the Magistrate has to give no- tice to the Commanding O cer and is not to make any order of conviction or acquittal or frame charges or com- mit the accused until the expiry of 7 days from the service of notice. The Commanding O cer may inform the Magistrate that in his opinion the ac- cused should be tried by the Court Martial. Subsequent rules prescribe the procedure which is to be followed where the Commanding O cer has given or omitted to give such infor- mation to the magistrate. It is an ad-

mitted fact in this case that the pro- cedure speci ed in rule 3 was not fol- lowed by the Special Judge, Gauhati before framing charges against the respondent. Section 549 (1) Cr.P.C. and rule 3 are mandatory. Accord- ingly the charges, framed by the Spe- cial Judge against the respondent cannot survive. But counsel for the appellant has urged before us that in the particular circumstances of this case the respondent is not liable to be tried by a Court Martial. Section 122(1) of the Army Act, 1950, pro- vides that no trial by court martial of any person subject to the Army Act for any o ence shall be com- menced after the expiry of the period of three years from the date of the o ence. The o ences are alleged to have been committed by the respon- dent in November-December, 1962,. So more than three years have ex- pired from the alleged commission of the o ence. It is claimed that having regard to s. 122(1), the respondent is not liable to be tried by court mar- tial. This argument is built on the phrase is liable to be tried either by the court to which this Code applies or by a Court Martial in s. 549(1). According to counsel for the appel- lant this phrase connotes that the or- dinary criminal court as well as the Court Martial should not only have concurrent initial jurisdiction to take cognizance of the case but should also retain jurisdiction to try him up to the last stage of conviction or ac- quittal. We are unable to accept this construction of the phrase. As re- gards the trial of o ences committed by, army men, the Army Act draws a threefold scheme. Certain o ences

71

enume- rated in the Army Act are exclusively triable by a Court- mar- tial; certain other o ences are exclu- sively triable by the ordinary crim- inal courts; and certain other of- fences are triable both by the ordi- nary criminal court and the court- martial. In respect of the last cat- egory both the courts have concur- rent jurisdiction. Section 549(1) Cr. P.C. is designed to avoid the con ict of jurisdiction in respect of the last category of o ences. The clause for which he is liable to be tried either by the court to which this Code ap- plies or by a court martial in our view, quali es the preceding clause when any person is charged with an o ence in s. 549(1). Accordingly the phrase is liable to be tried either by a court to which this Code applies or a court martial imports that the of- fence for which the accused is to be tried should be an o ence of which cognizance can be taken by an ordi- nary criminal court as well as a court martial. In our opinion, the phrase is intended to refer to the initial juris- diction of. the two courts to take cog- nizance of the case and not to their jurisdiction to decide it on merits. It is admitted that both the ordinary criminal court and the Court Mar- tial have concurrent jurisdiction with respect to the o ences for which the respondent has been charged by the Special Judge. So, S. 549 and the rules made thereunder are attracted to the case at hand. Again, sub- section (3) of s. 122 of the Army Act provides that while computing the period of three years specti ed in sub-section any time spent by the accused as a prisoner of war or in

enemy territory, or in evading arrest after the commission of the o ence. shall be excluded. On a con joint reading of sub-ss. (1) and of S. 122, it is evident that the court martial and not the ordinary criminal court has got jurisdiction to decide the is- sue of limitation. There it nothing on record before us to indicate that the respondent had not been evading ar- rest after commission of the o ence. As the court martial has initial ju- risdiction to enter upon the enquiry in the case, it alone is competent to decide whether it retains jurisdiction to try the respondent inspite of subs.

(1) of s. 122. The issue of limita- tion is a part of the trial before it. If the court- martial nds that the re- spondent cannot be tried on account of the expiry of three years from the date of the commission of the o ence, he cannot be go scot free. Section 127 of the Army Act provides that when a person is convicted or acquitted by a court martial, he may, with the pre- vious sanction of the Central Govern- ment, be tried again by an ordinary criminal court for the same o ence or on the same facts. go it would be open to the Central Government to proceed against the respondent after the court martial has recorded a nd- ing that it cannot try him on account of the expiry of three years from the date of the commission of the o ence. Section 125 of the Army Act pro- vides that when a criminal court and a court martial have each jurisdiction in respect of an o ence, it shall be in the discretion of the o cer com- manding the army, army corps divi- sion or independent brigade in which the accused person is serving to de-

72 Delhi Police Est v. Lt Col S K Loraiya 1972

cide before which court the proceed- ings shall be instituted and if that o cer decides that they should be instituted before a court martial he will direct that the accused person shall be detained in military custody. Sections 12 (1) and 12 5 both nd place in Chapter X of the Army Act. Section 125 supports our view that the court- martial alone has jurisdic- tion to decide the issue of limitation under s. 122(1). The word juris- diction in s. 125 really signi es the initial jurisdiction to take cognizance of a case. To put it in other words, it refers to the stage at which pro- ceedings are instituted in a court and not to the jurisdiction of the ordinary criminal court and the court martial to decide the case on merits. It ap- pears to us that s. 549 ( 1) should

be construed in the light of s. 126 of the Army Act. Both the provisions have in mind the object of avoiding a collision between the ordinary crimi- nal court and the court martial. So both of them should receive a similar construction. In the result, we are of opinion that the High Court has rightly held that as the charges were framed without following the proce- dure speci ed in the rules framed un- der s. 549 (1) Cr. P.C., they can- not stand. As this nding of ours is su cient to dispose of this appeal, we are not expressing any opinion on the correctness or otherwise of the second reason assigned by the High Court for quashing the charges. The appeal is dismissed. G.C Appeal dis- missed.

PETITIONER:
Army Act, 1950, Sections 158 and 160-Upward revision of sentence Whether violative of natural justice principle in the circumstances of the case.
Captain Harish Uppal v. Union Of India And Others on 27 Novem- ber, 1972 Equivalent citations: 1973 AIR 258, 1973 SCR (2)1025 Bench: Alagiriswami, A.
ACT:
Chapter 6
Capt Harish Uppal v. Union Of India 1972
CAPTAIN HARISH UPPAL   Army Act, Section 160-Whether
v. opportunity to be heard necessary
when Con rming O cer decides to
RESPONDENT:
send back the matter to the Court
UNION OF INDIA AND OTH-
Martial for considering upward revi-
ERS sion of the sentence.
 
DATE OF JUDGMENT27/11/1972   Army Act, Sections 112 and 157-
   
BENCH: Whether the words 'authority' and
ALAGIRISWAMI, A. O cer denote di erent authorities.
Army Act, Section 164-Whether op-
BENCH:
portunity to be heard necessary be-
 
ALAGIRISWAMI, A. fore con rmation of upward revision
 
VAIDYIALINGAM, C.A. of sentence by the Army Chief of the
   
CITATION: Sta .
   
1973 AIR 258 1973 SCR (2)1025   HEADNOTE:
   
1973 SCC (3) 319   The petitioner was found guilty
by the Court Martial (acting under
CITATOR INFO :
the Army Act) under section 392 IPC
 
RF 1991 SC 564 (5) of committing robberies of a bank
 
RF 1991 SC1070 (6) property and the private property
   
     
74 Capt Harish Uppal v. Union Of India 1972

of the Manager and peons of the Batik during the period of the liber- ation of Bangladesh, in Bangla Desh. The Court Martial sentenced the pe- titioner 'to be cashiered'. When the matter went to the O cer Com- manding under whom the petitioner was working as an O cer, for con-rmation of the sentence u/s 153 of the Act, he returned the same to the Court Martial for re-considering whether the upward revision of sen- tence was necessary in the light of the observations made by the Con rm- ing O cer. The Con rming O cer had pointed out in his report that the robberies were committed during the liberation of Bangladesh where the Indian Forces had gone as liberators and as guardians and custodians of the life and property of the people of Bangladesh. Considering the nature aid gravity and maintenance of high standard of discipline in the Armed Forces, the sentence awarded was not commensurate. The Con rming Of-cer further directed that the delin- quent o cer should be given oppor- tunity to address the Court, if he so de-sired, if the Court decides to en- hance the sentence. In the fresh pro- ceedings before the Court Martial, the O cer did not present himself. The Court Martial revoked the ear- lier sentence and sentenced him to be cashiered and to su er rigorous im- prisonment for two years. The said sentence was duly con rmed by the Chief of the Army Sta . in the pe- tition challenging the legality of the order under Art., 32 of the Consti- tution, the petitioner contended that the impugned order was bad for the violation of the principle of natural

justice inasmuch as that the Court Martial while re-considering the sen- tence did not act as a free agent, that no opportunity of being heard was given to the O cer at the time of re- mand and at the time of the nal con-rmation by the Army Chief of the Sta and that the revision was rec- ommended by an o cer subordinate in rank to the o cer who convened the Court Martial. In dismissing the petition,

HELD : (i) Sec. 158 of the Army Act describes the procedure regard- ing the re-consideration of the sen- tence by the Court Martial. In con- sidering a petition led under Art. 32 of the Constitution, the only rele- vant Article is Art. 21, and the pro- cedure established by law has been cornpletely followed in this case. The circumstances requiring the reconsid- eration pointed out by the O cer Commanding were unexceptionable and there was no violation of the principle of natural justice. The pe- titioner failed to appear before the Court Martial in the fresh bearing. [1031 C-D]

A. K. Kraipak & Ors. Etc. v. Union of India and Ors. [1970](1) SCR 457 and Purtabpore Co. Ltd. v. Cane Commissioner- of Bihar & Ors. [1969] (2) SCR 807, distinguished.

(ii) No opportunity to be heard was necessary before the Con rming O cer formed the opinion to send the case back to the Court Mar- tial for re-consideration of sentence. [1032 C]

(ii) The words 'authority' and 'O cer' in Sec. 112 of the Army

75

Act have one and the same mean- ing. The O cer recommending the reconsideration of the sentence was also an O cer commanding the Di- vision though he was only o ciating and was a Brigadier. The actual con-rmation of the enhanced sentence was made by the Chief of Army Sta who was higher in rank than the con- vening O cer. [1033 C] (iv) In the face of the very clear indication in the Constitution, the provisions of Code of Criminal Procedure cannot be adopted in respect of Court Mar- tial. It is as open to the petitioner to make a petition to the Chief of the Army Sta under section 164 of the Army Act which he did not do. [1O33 H]

JUDGMENT:

ORIGINAL JURISDICTION : Writ Petition No. 456 of 1972. Peti- tion under Article 32 of the Constitu- tion of India for a writ in the nature of habeas corpus.

A. K. Sen and B. Datta for the petitioner. F. S. Nariman. Addl. Solicitor-General of India, B. D. Sharma and S. P. Nayar for the respondents. The Judgment of the Court was delivered by ALA- GIRISWAMI, J. The petitioner was an o cer of the Indian Army who served in Bangla Desh. On 11th De- cember, 1971 he was in a place called Hajiganj. He was tried before the Summary General Court Martial on the charge of committing robbery at Hajiganj by causing fear of instant hurt to the Custodian of the United Bank Ltd., of certain properties be- longing to the Bank and also the per- sonal property of the Manager of the

Bank as well as of a Chowkidar of the Bank. The Court sentenced the pe- titioner to be 'cashiered'. This sen- tence was subject to con rmation un- der the provisions of Chapter XII of the Army Act, Maj-Gen. Hira, Gen- eral O cer Commanding, 23 Moun- tain Division, of which the peti- tioner was an o cer, passed an or- der directing the revision of the sen- tence. Thereafter the petitioner was brought before the same Court Mar- tial, as had tried him earlier, and he was asked whether he wanted to ad- dress the Court. On receiving a reply in the negative, the Court, after con- sidering the observations of the con-rming authority, revoked the earlier sentence which they had imposed on the petitioner and sentenced him to be cashiered and to su er rigorous imprisonment for two years. Brig. D. P. Bhilla, the O ciating General Of-cer Commanding 23 Mountain Di- vision, referred the nding and sen- tence for con rmation to the Chief of the Army Sta , who in due course con rmed the nding and the sen- tence. The present petition is led under Article 32 of the Constitution for quashing the order passed by the Chief of the Army Sta , after setting aside the order passed by Maj-Gen. Hira. Shri A. K. Sen appearing on behalf of the petitioner raised four points in support of his contention that the order passed against, the pe- titioner should be quashed:

1. The authority to con rm the sentence passed by a Court Martial does not confer on the con rming au- thority the power to enhance the sen- tence. That authority cannot, there-

76 Capt Harish Uppal v. Union Of India 1972

fore, achieve that object indirectly by directing the revision of the sentence. The Court Martial's verdict should be unfettered.

2.In any case, the con rming au- thority should have given a hearing to the a ected party.

3.The con rmation can be made only by the o cer who convened the Court Martial and not by a di erent o cer as was done in this case.

4.The o cer who nally con-rmed the sentence on the petitioner should also have heard the petitioner.

(1) The o cer who convened the Summary General Court Martial, which tried the petitioner, was Maj- Gen. Hira. It was he that directed the revision of the sentence passed on the petitioner. The argument is that this order was in such terms that the Court Martial which revised the sentence was compelled to and was left with no alternative but to en- hance the sentence and that this was against all principles of natural jus- tice. Under Section 153 of the Army Act no nding of a Court Martial shall be valid except so far as it may be con rmed as provided under the Act'. Under Section 157 the nd- ings and sentences of summary gen- eral courts martial may be con rmed by the convening o cer or if he so directs, by an authority superior to him. Under Section 158, a con rm- ing authority may, when con rming the sentence of a court martial, miti- gate or remit the punishment thereby awarded, or commute that punish- ment for any punishment or punish- ments lower in the scale laid down

in section 71. Under Section 160, any nding or sentence of a court martial which requires con rmation may be once revised by order of the con rming authority and on such re- vision, the court, if so directed by the con rming authority, may take additional evidence. Even after re- vision the sentence passed by the court martial would have to be con-rmed because of provision of Sec- tion 153. The order passed by Maj- Gen. Hira directing revision of the sentence passed by the court martial is as follows :

\The Summary General Court Martial, which assembled at Field, on 9 March 1972 and subsequent days for the trial of IC-16394 Sub- stantive Lieut (Actg. Capt.) HAR- ISH UPPAL, Arty, 198 Mountain Regiment, will reassemble in open court on 15 May 1972 at Field at 1000 hrs for the purpose of recon- sidering the sentence awarded by it, whilst in no way intending the quan- tum of punishment to be awarded, the court should fully take into con- sideration the following observations of the Con rming O cer.

2. The accused was convicted by the Court, under Army Act Sec- tion 69 for committing a civil o ence, that is to say, Robbery, contrary to section 392 of the Indian Penal Code, the particulars hereby averred that he, at HAJIGANJ (BANGLA DESH) on 11 December 1971, by causing fear of instant hurt to the Custodians committed Robbery in respect of the undermentioned arti- cles, the property belonging to the persons indicated as follows (a) The

77

property of the United Bank Ltd. COMILLA Dist.

(i) Cash in Pakistan Currency. Rs. 11,222.91 (ii) 28-12 Bore guns Registered Two with s No. 027373 and 342. cartridges.

(iii)Wall clock. One

(iv)Telephone Set Auto TIP One (Sky Blue)

(v)Telephone CE without One hand set (Black)

(vi)Pens (eagle) Two

(vii)Locks with four keys TWO

(viii)Winter uniform of peons and Two pairs guard.

(b)Personal property of Shri MAKALAM, Manager, United Bank Ltd., HAJIGANJ Branch: Wrist Watch (Romer popular) One

(c)Personal property of Shri Habibullah, Chowkidar, United Bank Ltd., Hjiganj Branch: PAK- ISTAN Currency Rs. 6/-

3. It is, therefore, apparent that apart from the property of the United Bank, Ltd., the accused com- mitted robbery in respect of the per- sonal properties of its two custodi- ans at a time when the War of lib- eration of BANGLADESH was still being waged on some fronts though the hostility in the town had ceased in HAJIGANJ area and the situation was fast returning to normalcy.

4. It would be appreciated that the charge of which the accused was convicted is of a very serious na- ture. The punishment of 'Cashiering, therefore, awarded for the o ence ap- pears to be palpably lenient. The maximum punishment provided for

the o ence under IPC Sec. 392 is 10 years RI. Even though the proper amount of punishment to be in icted is the least amount by which disci- pline can be e ectively maintained, it is nevertheless equally essential that the punishment awarded should be appropriate and commensurate with the nature and gravity of the of- fence and adequate for the mainte- nance of the high standard of disci- pline in the Armed Forces. It should be clearly borne in mind that our Forces had been ordered to march into BANGLADESH as the libera- tors of the oppressed people who had been subjected to unotld torture and miseries at the hands of Pak troops. It is, therefore, clear that our Forces had gone there as guardians and cus- todians of the lives and property of the persons of that country. The con- duct of the accused by indulging in broad day light bank robbery is de- spicable and his stooping so low as to deprive Shri HABIBULLAH (PW- 2), Chowkidar of the United Bank Ltd., of paltry amount of Rs. 6 in Pak currency as also his taking away the Romer Wrist watch from Shri MAKALAM (PW-4), Manager of the said Bank, is indeed highly reprehensible. Such actions on the part of responsible o cer of the In- dian Army are calculated to bring a blot on the fair name of the Indian Army. It is, therefore, our imperative duty to ensure that such cases dealt with rmly when a verdict of guilty has been returned by the court.

5. There are certain norms and standards' of behaviour laid down in the Armed Forces for strict adher-

78 Capt Harish Uppal v. Union Of India 1972

ence by persons who have the honour to belong to the Corps of O cers of the Indian Army. A person of the rank, of an o cer, who indulges in such an o ence, should, therefore, be awarded suitable punishment. In the course of six years commissioned ser- vice he had once been convicted un- der Army Act Sect-ion 41(2) for dis- obeying a lawful command given by his superior o cer in the execution of his duties for which he was severely reprimanded on 13 June 1970.

6.The accused/or his defend- ing o cer/counsel should be given an opportunity to address the court, if so desired. The court should then carefully consider all the above and should they decide to enhance the sentence, then the fresh sentence should be announced in open court as being subject to con rmation.

7.The, attention of the court is drawn to Army Act Section 160, Army Rule 68 and the form of pro- ceedings on revision given on page

370of N1ML (1961 Reprint), which should be amended to conform to the provisions of Army Rule 67(1).

8.After revision, the proceedings shall be returned to this Headquar- ters.

Sd/-

(R. D. HIRA)

Maj-Gen.

General O cer Commanding 23

Mtn Div.

Field

03 May 1972.

It was contended that in the face of such strong observations by the

General O cer Commanding the Di- vision the o cers constituting the court martial would have felt com- pelled to enhance the sentence and the revised sentence passed on the petitioner was not the free act of the court martial but one forced on them by the O cer Commanding and that this militates against the principle of natural justice. But it should be remembered that under the provi- sions of the Army Act set out ear- lier the con rming authority could himself mitigate or remit the pun- ishment awarded by the court mar- tial or commute that punishment for any lower punishment and, therefore, when a sentence is directed to be re- vised by the con rming authority it necessarily means that the con rm- ing authority considers that the pun- ishment awarded by the court mar- tial is not commensurate with the o ence and it should, therefore, be revised upwards. To object to this is to object to the provisions of sec- tion 158 itself. A direction by the con rming authority merely showing that the punishment awarded by the court martial is not commensurate with the o ence, would be certainly unexceptionable and would be in ac- cordance with- the provisions of law. Instead of baldly stating so the con-rming authority in this case has given reasons as to why he considers that the punishment awarded to the petitioner was wholly inadequate.

We consider that the reasons, given by him cannot be taken excep- tion to. It was urged that the con-rming authority proceeded on the basis that in respect of the charges

79

against the petitioner the evidence available was as he had set out in his order directing revision and that this was not correct. We must point out that this Court cannot go into the evidence in support of the charge against the petitioner. Indeed the court martial itself could not have set out the evidence against the pe- titioner; it should have only given the nding and the sentence. Under the provisions of Article 136(2) of the Constitution this Court cannot grant special leave in respect of any judg- ment, determination or order passed or made by any court or tribunal con- stituted by or under any law relat- ing to the Armed Forces. In con- sidering a petition led under Arti- cle 32 of the Constitution this Court can only consider whether any fun- damental right of the petitioner has been violated and the only Article relevant is Article 21 of the Consti- tution. There is no doubt that the procedure estab- lished by law as re- quired under that Article has been completely followed in this case.

It is, however, urged that the de- cisions of this Court have laid down that the rules of natural- justice op- erate in areas not covered by any law validly made and that they do not supplant the law of the land but supplement it and, therefore, though the procedure established by law may have been followed as required un- der Article 21, the principles of nat- ural justice should also be followed. The cases relied on are A. K. Kraipak & Ors. etc. v. Union of India & Ors. (1) and Purtabpore Co. Ltd. v. Cane Commissioner of Bihar & Ors.

(2). This Court in the rst decision had pointed out that what particu- lar rule of natural justice should ap- ply to a given case must depend to a great extent on the facts and cir- cumstances of that case, the frame work of the law under which the en- quiry is held and the constitution of the tribunal or body of persons ap- pointed for that purpose. It was also pointed out that the Court has to de- cide whether the observance of that rule was necessary for a just deci- sion and that the rule that enquiries must be held in good faith and with- out bias and not arbitrarily or unrea- sonably is now included among the principles of natural justice. There is no analogy between the facts of that case and the present and applying the ratio of that to the facts of this case we are not satis ed that any rule of natural justice has been violated. The latter was a case where the au- thority competent to pass the order had simply passed an order adopting what the Minister had directed and had not applied his mind. The facts of this case are quite di erent. The con rming authority while pointing out the facts had left the discretion regarding the punishment to be im- posed to the court (1) [1970] 1 S.C.R. 457.(2) [1969] 2 S.C.R. 807 martial. If the court martial in spite of the direction given by the con rming au- thority had rea rmed its original or- der, the con rming authority could do nothing because it can exercise its power of directing revision only once, and that power was already exhausted. Furthermore, when the court martial reassembled to revise its earlier order under the directions

80 Capt Harish Uppal v. Union Of India 1972

of the con rming authority, the pe- titioner was given the reasons of the con rming o cer for requiring revi- sion and asked whether he wanted to address, the court, he replied in the negative. It was open to him to have pointed out to the court martial how the observations of the con rm- ing authority were wrong, how they were not borne out by the evidence on record. Having failed to avail him- self of the opportunity accorded to him, the petitioner cannot be now heard to complain that he was not given an opportunity by the con rm- ing authority before he directed re- vision. The court martial had orig- inally found the petitioner guilty of the charge of robbery, under Section 392 of the Indian Penal Code. There was, therefore, no question of the court martial, when it proceeded to reconsider the matter, of reconsider- ing the nding of guilty. Therefore, any attempt to question the order of the con rming authority on the ba- sis that he relied upon facts which were not proved for directing revi- sion, is wholly beside the point. And as far as the question of sentence is concerned, one cannot quarrel with the sentiments expressed by the con-rming authority. We nd ourselves unable, therefore, to agree to peti- tioner's contention that the order of the con rming authority directing re- vision is in any way vitiated.

(2) We have already held above that the con rming authority, when he directed a revision of the sentence passed on the petitioner, was only ex- ercising the powers conferred on him by Section 160 of the Army Act. He

also made it clear,. that the court martial was not bound by his opin- ion by stating that should the court martial decide to enhance the sen- tence the fresh sentence should be announced in open court as being subject to con rmation. Right in the beginning of his order he had also stated 'Whilst in no way intending the quantum of punishment to be awarded, the court should fully take into consideration the following ob- servations'. To hold in the circum- stances that the con rming author- ity should have, heard the appellant before he directed the revision of the sentence passed on him would not be a requirement of principle of natu- ral justice. In the circumstances and facts of a case like the present one where the petitioner had an oppor- tunity of putting forward whatever contentions he wanted to rely upon before the court martial, we do not consider that there is any- substance in this contention.

3) The contention here was that while the court martial was convened by a Maj-General the o cer who di- rected revision was a Brigadier, and that only the convening o cer can con rm or direct revision. This is perhaps the one contention with the least substance put forward on behalf of the petitioner. The contention is based on the words found in Section 157 of the Army Act that the nd- ings and sentences of summary gen- eral courts martial may be con rmed by the convening o cer or if he so directs, by an authority superior to him. The words 'convening o cer' and 'an authority superior to him are

81

sought to be contrasted and it is ar- gued that while a con rmation can only be by a convening o cer and by no other, the authority superior to hi-in may also con rm showing that in the latter case neither the rank of authority nor the person holding the post is relevant. Section 112 of the Act which deals with the power to convene a summary general court martial shows that this attempted distinction between \authority" and \o cer" is without substance. The o cer is the authority and the au- thority is the o cer. Both the words refer only to one person. To accept this argument would mean that if the o cer who convened the court mar- tial is transferred to a distant place or retires or is dead, the whole proce- dure would have to be gone through again. A useful comparison will be of decisions under Article 311 of the Constitution where it has been held that the power to dial with an of-cer under that Article can be ex- ercised even by an authority lower in rank to the authority which origi- nally appointed the o cer, if at the, relevant period of time that author- ity was competent to appoint the of-cer sought to be dealt with. It may be noted that in this case the o cer who convened the court martial was a Maj-General O cer Commanding the 23rd Mountain Division, and the o cer who directed that the ndings and sentence should be con rmed by the Chief of Sta was also the o - cer Commanding the same Division, though he was only o ciating and was a Brigadier. The con rmation itself was by the Chief of Army Sta , higher in rank than the convening of-

cer.

(4) The contention that Bring Bhilla should either have given a hearing to the petitioner or the Chief of Army Sta should have given a hearing to the petitioner before con-rming the subsequent sentence by the court martial is not a require- ment under the Act. While it can be at least said that there is some sem- blance of reasonableness in the con- tention that before he ordered what in e ect was an upward revision of the sentence passed on the petitioner, he should have been given a hearing, to insist that the con rming author- ity should give a hearing to the pe- titioner before it con rmed the sen- tence passed by the court martial, is a contention which cannot be ac- cepted. To accept this contention would mean that all the procedure laid down by the Code of Criminal Procedure should be adopted in re- spect of the court martial, a con- tention which cannot be accepted in the face of the very clear indications in the Constitution that the provi- sions which are 1034

applicable to all the civil cases are not applicable to cases; of Armed Personnel. It is not a requirement of the principles of natural justice. In- deed when he was informed that the subsequent sentence passed on him had been sent to the Chief of the Army Sta for con rmation it was open to the petitioner to have availed himself of the remedy provided tin- der Section 164 of presenting a peti- tion to the con rming o cer, i.e. the Chief of the Army Sta in this case. He does not appear to have done so.

82 Capt Harish Uppal v. Union Of India 1972
  and dismiss it.
We are, therefore, of the opinion that
there are no merits in this petition S.B.W. Petition dismissed.
   

Chapter 7

O K Achudan Nair v. Union of India 1975

Ous Kutilingal Achudan Nair & Ors v. Union of India & Ors [1975] INSC 284 (20 November 1975)

SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH RAY, A.N. (CJ) BEG, M. HAMEEDUL- LAH SHINGAL, P.N.

CITATION: 1976 AIR 1179 1976 SCR (2) 769 1976 SCC (2) 780

CITATOR INFO:

F 1983 SC 658 (10) E&R 1987 SC 379 (10) F 1987 SC 413 (2)

ACT:

Constitution of India, 1950-Art. 33-Scope of.

Army Act, 1950, S.. 2(1)-Civilian employees of defence establishments- If could form trade unions.

HEADNOTE:

On the question whether civilian employees of Defence Establishments have the right to form trade unions under Art, 19(1) (c) of the Constitu- tion,

HELD: Article 33 of the Consti-

tution provides an exception to the Preceding Articles in Part III includ- ing Act. 19(1)(c). By Art. 33, Par- liament is empowered to enact law determining to what extent any of the rights conferred by Part III shall. in their application to the members of the armed forces or forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of disci- pline among them. [770GH, 771A] By virtue of s. 2(l) of the Army Act, the Central Government was com- petent to make rules restricting or curtailing the Fundamental Rights of civilian employees of Defence Estab- lishments to form trade unions under Art.

19(1)(c) of the Constitution. Al- though they are non- combatants and are in some matters governed by the civil service regulations, yet they are? integral to the armed forces. They answer the description of the members of the armed forces within

84 O K Achudan Nair v. Union of India 1975

the contemplation of Art. 33. [771- B-D]

CIVIL APPELLATE JURIS- DICTION: Civil Appeal No. 18 '1 of 1974.

Appeal by special leave from the judgment and order dated the 18th June 1974 of the Andhra Pradesh High Court at Hyderabad in Writ Appeal No. 460 of 1974.

K.R. Nambiar for the appellant.

L.N. Sinha, Sol. General of India and Girish Chandra for respondents.

The Judgment of the Court was delivered by SARKARIA, J. This is an appeal by special leave against a judgment of the High Court of Andhra Pradesh. The appellants are o ce-bearers of the Civil Employees Unions in the various Centers of the Defence Establishments of Secunder- abad and Hyderabad. They led a writ petition in the High Court to im- pugn the authority of the Comman- dants (Respondents 2 and 3 herein) in declaring the Unions, represented by the appellants as unlawful associ- ations.

The Registrar of Trade-Unions had issued Certi cates of Registra- tion to the four Unions represented by the appellants between 1954 and 1970. The General Secretary of Class IV, Civil Employees Union, Bolaram, Secunderabad was informed, per let- ter dated 770 12-5-1971, by the Un- der Secretary of the Government of India, Ministry of Defence that their Unions could not be granted recogni- tion as these employees being in the Training Establishments, were not entitled to form Unions. The Com-

mandant also issued a notice to the appellants to show cause why disci- plinary action be not taken against them for forming this unlawful asso- ciation.

The main ground taken in the pe- tition was that the impugned action was violative of their fundamental right to form associations or Unions conferred by Art. 19(1)(c) of the Constitution.

In their reply-a davit, the re- spondents averred that the Civilian Non-Combatants in the Defence Es- tablishments were governed by the Army Act and were duly prohibited by Rules framed thereunder from joining or forming a Trade Union; that the associations in question were formed in breach of that prohibition, and were therefore, validly declared illegal.

The learned Judge of the High Court, who tried the petition, held that the right of the appellants to form associations given by Art. 19(1)

(c) of the Constitution, had been lawfully taken away. He accordingly dismissed the petition.

The appellants carried an appeal to the appellate Bench of the High Court. The Bench dismissed the ap- peal holding that the impugnea ac- tion was not without jurisdiction.

The main contention of Mr. K. R. Nambiyar, appearing for the ap- pellants is that the members of the Unions represented by the appel- lants, though attached to the De- fence Establishments, are civilians', designated as \Non- Combatants Un- Enrolled". They include cooks,

85

chowkidars, laskars, barbers, carpen- ters, mechanics, boot makers, tai- lors etc. They are governed by the Civil Service Regulations for pur- poses of discipline, leave, pay etc. and are also eligible to serve up to the age of 60 years unlike that of the members of the Armed Forces. In view of these admitted facts, pro- ceeds the argument, these categories of civilian employees, attached to the Defence Establishments, could not be validly called \members of the Armed Forces" covered by Art. 33 of the Constitution. The points sought to be made out are: that the mem- bers of the appellants' Unions are not subject to the Army Act as they do not fall under any of the categories enumerated in sub-clauses (a) to (i) of s. 2 of the Army Act, 1950, and that the impugned noti cations are ultra vires the Army Act and are struck by Arts. 19(1)(c) and 33 of the Constitution.

For reasons that follow, the con- tentions must be repelled.

Article 33 of the Constitution provides an exception to the pre ced- ing Articles in Part III including Art. 19(1) (c). By Article 33, Parliament is empowered to enact law determin- ing to what extent any of the rights conferred by Part III shall, in their application, to the members of the Armed Forces or Forces charged with the main tenance of public order, be restricted or abrogated so as to en- sure 771 the proper discharge of their duties and the maintenance of disci- pline among them.

In enacting the Army Act, 1950, in so far as it restricts or abrogates

any of the fundamental rights of the members of the Armed Forces, Par- liament derives its competence from Art.33 of the Constitution. Section 2(1) of the Act enumerates the per- sons who are subject to the operation of this Act. According to sub-clause

(i) of this section, persons governed by the Act, include \persons not oth- erwise subject to military law who, on active service, in camp, on the march or at any frontier post spec- i ed by the Central Government by noti cation in this behalf, are em- ployed by, or are in the service of, or are followers of, or accompany any portion of the regular army." The members of the Unions represented by the appellants fall within this cat- egory. It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march. Although they are non- combatants and are in some mat- ters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the \members of the Armed Forces" within the contem- plation of Art. 33. Consequently, by virtue of s. 21 of the Army Act, the Central Government was competent by noti cation to make rules restrict- ing or curtailing their fundamental rights under Art. 19(1) (c).

Rule 19(ii) of the Army Rules, 1954, imposes a restriction on the fundamental rights in these terms.

\No persons subject to the Act shall without the express sanction of the Central Government:

(i) xx xx xx (ii) be a member of, or be associated in any way with, any

86 O K Achudan Nair v. Union of India 1975

trade union or labour union, or any class of trade or labour unions " In exercise of its powers under s.4 of the Defence of India Act, the Gov- ernment of India has by noti cation dated 11-2-1972, provided that all persons not being members of the Armed Forces of the Union, who are attached to or employed with or fol- lowing the regular Army shall be sub- ject to the military law. The Army Act, 1950, has also been made ap- plicable to them. By another noti-cation dated 23-2-1972, issued un- der r.79, of the Army Rules, civilian employees of the training establish-

ments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act.

Section 9 of the Army Act fur- ther empowers the Central Govern- ment to declare by noti cation, per- sons not covered by s. (i) of s. 3 also as persons on active service.

772 In view of these noti cations issued under s.4 of the Defence of In- dia Act and the Army Rules, the ap- pellants can no longer claim any fun- damental right under Art. 19 (1) (c) of the Constitution.

The appeal fails and is dismissed. There will be no order as to costs.

Chapter 8

Maj Gen D.S. Nakara v. Union Of India 1982

D.S. Nakara Others v. Union Of India on 17 December, 1982 Equiv- alent citations: 1983 AIR 130, 1983 SCR (2) 165 Bench: Desai, D.A.

PETITIONER:

D.S. NAKARA OTHERS

v.

RESPONDENT:

UNION OF INDIA

DATE OF JUDGMENT17/12/1982

BENCH:

DESAI, D.A.

BENCH:

DESAI, D.A.

CHANDRACHUD, Y.V. ((CJ)

TULZAPURKAR, V.D.

REDDY, O. CHINNAPPA (J)

ISLAM, BAHARUL (J)

CITATION:

1983 AIR 130 1983 SCR (2) 165

1983 SCC (1) 305 1982 SCALE (2)1213

CITATOR INFO :

R 1983 SC 937 (34)

R 1984 SC 121 (28)

R 1984 SC1064 (18)

R 1984 SC1247 (1) RF 1984 SC1361 (19) RF 1984 SC1560 (2) F 1985 SC1196 (2,7) D 1985 SC1367 (39,43)

RF 1986 SC 210 (19,20,22,26) R 1986 SC 584 (1)

R 1986 SC1907 (1,2)

R 1987 SC 943 (8)

RF 1987 SC2359 (17)

D 1988 SC 501 (3,4,6,7) RF 1988 SC 740 (13) D 1988 SC1291 (9)

R 1988 SC1645 (8)

D 1989 SC 665 (7)

F 1989 SC2088 (7)

R 1990 SC 334 (104)

RF 1990 SC 883 (6)

E 1990 SC1760 (9)

88 Maj Gen D.S. Nakara v. Union Of India 1982

RF 1990 SC1923 (3)

D 1990 SC2043 (2,7)

E 1991 SC1182 (6 TO 16,18,19,23)

RF 1991 SC1743 (1,2,4)

R 1992 SC 96 (11)

R 1992 SC 767 (2,4,TO 8,10)

ACT:

Constitution of India, Art. 14- Central Civil Services (Pension) Rules, 1972 and Regulations gov- erning pension for Armed Forces Personnel-Liberalisation in computa- tion of pension e ective from speci-ed date-Divides pensioners so as to confer bene t on some while denying it to others- Classi cation arbitrary, devoid of rational nexus to object of liberalisation and violative of Art. 14

Constitution of India, Art. 14- Doctrine of severability-Severance may have e ect of enlarging scope of legislation.

Rules and Regulations governing grant of pension- Pension is a right- Deferred portion of compensation for service rendered-Also a social-welfare measure.

HEADNOTE:

By a Memorandum dated May 25, 1979 (Exhibit P-1) the Govern- ment of India liberalised the formula for computation of pension in respect of employees governed by the Cen- tral Civil Services (Pension) Rules, 1972 and made it applicable to em- ployees retiring on or after March 31, 1979. By another Memorandum is- sued on September 23, 1979 (Exhibit P-2) it extended the same, subject to certain limitations, to the Armed

Forces' personnel retiring on or af- ter April 1, 1979. Petitioners 1 and 2 who had retired in the year 1972 from the Central Civil Service and the Armed Forces' service respectively, and petitioner No. 3, a registered so- ciety espousing the cause of pension- ers all over the country, challenged the validity of the above two memo- randa in so far as the liberalisation in computation of pension had been made applicable only to those retir- ing on or after the date speci ed and the bene t of liberalisation had been denied to all those who had retired earlier.

Counsel for petitioners contended that all pensioners entitled to receive pension under the relevant rules form a class irrespective of the dates of their retirement and there cannot be a mini-classi cation within this class; that the di erential treatment ac- corded to those who had retired prior to the speci ed date is violative of Art. 14 as the choice of speci ed date is wholly arbitrary and the classi ca- tion based on the fortuitous circum- stance of retirement before or subse- quent to the speci ed date is invalid; and that the scheme of liberalisation in computation of pension must be uniformly enforced with regard to all pensioners.

Counsel for respondents con- tended that a classi cation based on the date of retirement is valid for the purpose of granting pensionary ben- e ts; that the speci ed date is an integral part of the scheme of liber- alisation and the Government would never have enforced the scheme de- void of the date; that the doctrine

89

of severability cannot be invoked to sever the speci ed date from the scheme as it would have the e ect of enlarging the class of pensioners covered by the scheme and when the legislature has expressly de ned the class to which the legislation applies it would be outside the judicial func- tion to enlarge the class; that there is not a single case where the court has included some category within the scope of provisions of a law to maintain its constitutionality; that since the scheme of liberalisation hasnancial implications, the Court can- not make it retroactive; that if more persons divided the available cake the residue falling to the share of each, especially to the share of those who are not before the court would become far less and therefore no re- lief could be given to the petitioners that pension is always correlated to the date of retirement and the court cannot change the date of retirement and impose fresh commutation ben- e t which may burden the exchequer to the tune of Rs. 233 crores; and that the third petitioner has no lo- cus standi in the case.

Allowing the petitions,

HELD: Article 14 strikes at ar- bitrariness in State action and en- sures fairness and equality of treat- ment. It is attracted where equals are treated di erently without any reasonable basis. The principle un- derlying the guarantee is that all per- sons similarly circumstanced shall be treated alike both in privileges con- ferred and liabilities imposed. Equal laws would have to be applied to all in the same situation and there

should be no discrimination between one person and another if as re- gards the subject-matter of the leg- islation their position is substantially the same. Article 14 forbids class leg- islation but permits reasonable clas- si cation for the purpose of legis- lation. The classi cation must be founded on an intelligible di erentia which distinguishes persons or things that are grouped together from those that are left out of the group and that di erentia must have a ratio- nal nexus to the object sought to be achieved by the statute in ques- tion. In other words, there ought to be causal connection between the ba- sis of classi cation and the object of the statute. The doctrine of classi - cation was evolved by the Court for the purpose of sustaining a legisla- tion or State action designed to help weaker sections of the society. Leg- islative and executive action may ac- cordingly be sustained by the court if the State satis es the twin tests of reasonable classi cation and the rational principle correlated to the object sought to be achieved. A discriminatory action is liable to be struck down unless it can be shown by the Government that the depar- ture was not arbitrary but was based on some valid principle which in it- self was not irrational, unreasonable or discriminatory.

[176 B, 178 D-E, 179 B-C, 177 C- D, 179 C-D, 176 E-F, 179 H, 180 A-C]

Maneka Gandhi v. Union of In- dia, [1978] 2 S.C.R. 621; Ram Kr- ishna Dalmia v. Shri Justice S.R. Tendolkar Ors., [1959] S.C.R. 279; In re Special Courts Bill, [1979] 2 S.C.R,

90 Maj Gen D.S. Nakara v. Union Of India 1982

476; E.P Royappa v. State of Tamil Nadu, [1974] 2 S.C.R. 348; Ajay Ha- sia etc. v. Khalid Mujib Sehravardi Ors., [1981] 2 S.C.R. 79; Air India etc. v. Nargesh Meerza Ors., [1982] 1 S.C.R. 438 and Ramana Dayaram Shetty v. International Airport Au- thority of India Ors., [1979] 3 S.C.R. 1014, referred to.

In the instant case, looking to the goals for the attainment of which pension is paid and the welfare State proposed to be set up in the light of the Directive Principles of State Pol- icy and Preamble to the Constitu- tion it indisputable that pensioners for payment of pension from a class. When the State considered it neces- sary to liberalise the pension scheme in order to augment social security in old age to government servants it could not grant the bene ts of lib- eralisation only to those who retired subsequent to the speci ed date and deny the same to those who had re- tired prior to that date. The division which classi ed the pensioners into two classes on the basis of the spec- i ed date was devoid of any rational principle and was both arbitrary and unprincipled being unrelated to the object sought to be achieved by grant of liberalised pension and the guar- antee of equal treatment contained in Art. 14 was violated inasmuch as the pension rules which were statu- tory in character meted out di eren- tial and discriminatory treatment to equals in the matter of computation of pension from the dates speci ed in the impugned memoranda. [190 F-H, 194 A-C, 194 F-H] (ii) Prior to the liberalisation of the formula for com-

putation of pension average emolu- ments of the last 36 months' service of the employee provided the mea- sure of pension. By the liberalised scheme, it is now reduced to average emoluments of the last 10 months' service. Pension would now be on the higher side on account of two for- tuitous circumstances, namely, that the pay scales permit annual incre- ments and usually there are promo- tions in the last one or two years of the employee's service. Coupled with it a slab system for computation has been introduced and the ceiling of pension has been raised. Pension- ers who retired prior to the speci-ed date would su er triple jeopardy, viz., lower average emoluments, ab- sence of slab system and lower ceil- ing.

[191 A-D]

(iii) Both the impugned memo- randa do not spell out the raison d'etre for liberalising the pension for- mula. In the a davit in opposition it is stated that the liberalisation was decided by the government in view of the persistent demand of the employ- ees represented in the scheme of Joint Consultative Machinery. This would clearly imply that the pre-liberalised scheme did not provide adequate pro- tection in old age, and that a fur- ther liberalisation was necessary as a measure of economic security. The government also took note of the fact that continuous upward movement of the cost of living index and diminish- ing purchasing power of rupee neces- sitated upward revision of pension. When the government favourably re- sponded to the demand it thereby

91

ipso facto conceded that there was a larger available national cake, part of which could be utilised for providing higher security to retiring employees. With this underlying intendment of liberalisation, it cannot be asserted that it was good enough only for those who would retire subsequent to the speci ed date but not for those who had already retired. [191 F-G, 192 A, 191 H, 192 B]

2. If removal of arbitrariness can be brought about by severing the mischievous portion, the discrimina- tory part ought to be removed retain- ing the bene cial portion. [198 F]

In the instant case, the peti- tioners do not challenge, but seek the bene t of the liberalised pension scheme. Their grievance is of the de- nial to them of the same by arbitrary introduction of words of limitation. There is nothing immutable about the choosing of an event as an eli- gibility criteria subsequent to a spec- i ed date. If the event is certain but its occurrence at a point of time is considered wholly irrelevant and ar- bitrarily selected having an undesir- able e ect of dividing a homogeneous class and of introducing discrimina- tion the same can be easily severed and set aside. It is therefore just and proper that the words introduc- ing the arbitrary fortuitous circum- stance which are vulnerable as deny- ing equality be severed and struck down. In Exhibit P-1 the words:

\That in respect of the Govern- ment servants who were in service on the 31st March, 1979 and retir- ing from service on or after that date, and in Exhibit P-2, the words:

the new rates of pension are ef- fective from Ist April 1979 and will be applicable to all service o cers who became/become none ective on or after that date"

are unconstitutional and are struck down with the speci cation that the date mentioned therein will be relevant as being one from which the liberalised pension scheme be- comes operative. Omitting the un- constitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as com- puted under the liberalised pension scheme from the speci ed date, ir- respective of the date of retirement. Arrears of pension prior to the speci-ed date as per fresh computation is not admissible. [190A-C, 198 G, 198 E-F, 205 F-H, 209 F-H, 210 A-D]

D.R. Nim v. UNion of India, [1967] 2 S.C.R. 325; and Jaila Singh Anr. v. State of Rajasthan Ors., [1975] Supp. S.C.R. 428, relied on.

Union of India Anr. v. M/s. Parameswaran Match Works etc., [1975] 2 S.C.R. 573; and D.C. Gouse Co. etc. v. State of Kerala Anr. etc., [1980] 1 S.C.R. 804, explained and distinguished.

Louisville Gas Co. v. Alabama Power Co., 240 U.S. 30 [1927], re- ferred to.

(ii) The reading down of the im- pugned memoranda by severing the objectionable portion would not ren- der the liberalised pension scheme vague, unenforceable or unworkable. The Court is not legislating in read- ing down the memoranda; when the

92 Maj Gen D.S. Nakara v. Union Of India 1982

Court strikes down the basis of clas- si cation as violative of Art. 14 it merely sets at naught the unconsti- tutional portion retaining the consti- tutional portion. There is no dif-culty in implementing the scheme omitting the event happening after the speci ed date, retaining the more human formula for computation of pension. The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the Third Pay Commission but becoming operative from the speci ed date. The Court is satis ed that the additional nan- cial liability that may be imposed by bringing 169

in pensioners who retired prior to April 1, 1979 within the fold of the liberalised pension scheme is not too high to be unbearable or such as would have detracted the Govern- ment from covering the old pension- ers under the scheme. The severance of the nefarious unconstitutional part does not adversely a ect future pen- sioners and their presence in these petitions is irrelevant.

[204 G-H, 197 E-F, 206 B, 196 G, 208 G, 199 B] (iii) To say that by its approach the Court is restructur- ing the liberalised pension scheme is to ignore the constitutional mandate. The Court is not conferring bene ts by its approach; it is only removing the illegitimate classi cation and af- ter its removal the law takes its own course. [206 D-E]

(iv) It is not correct to say that if the unconstitutional part is struck

down the Parliament would not have enacted the measure. The executive, with parliamentary mandate, liber- alised the pension scheme. It is im- plicit in the scheme that the need to grant a little higher rate of pen- sion to the pensioners was considered eminently just. One could have un- derstood persons in the higher pay bracket being excluded from the ben- e t of the scheme because it would have meant that those in the higher pay bracket could fend for them- selves. Such is not the exclusion. The exclusion is of a whole class of people who retired before a certain date. Parliament would not have hesitated to extend the bene t oth- erwise considered eminently just and this becomes clearly discernible from p.35 of the 9th Report of the Com- mittee on Petitions (6th Lok Sabha), April 1979. [206 H, 207 A-E]

(v)Whenever classi cation is held to be impermissible and the measure can be retained by remov- ing the unconstitutional portion of the classi cation, the resultant e ect may be of enlarging the class. In such

asituation the court can strike down the words of limitation in an enact- ment. That is what is called reading down the measure. There is no prin- ciple that severance limits the scope of legislation but can never enlarge it. [205 B-C] Jaila Singh Ors. v State of Rajasthan Ors., [1975] Supp. S.C.R. 428 and Randhir Singh v. Union of India Ors. [1982] 1 S.C.C. 618, relied on.

(vi)The absence of precedent does not deter the court. Every new norm of socio-economic justice, every

93

new measure of social justice com- menced for the rst time at some point of time in history. If at that time it was rejected as being with- out a precedent, law as an instrument of social engineering would have long since been dead. [193 G, 193 C- D]

(vii) The court is not making the scheme of liberalisation retroac- tive by its approach. Retroactiveness is implicit in the theory of wages. When revised pay-scales are intro- duced from a certain date, all exist- ing employees are brought on to the revised scales adopting a theory oftments and increments for past ser- vice. The bene t of revised scales is not limited to those who enter ser- vice subsequent to the date xed for introducing revised scales but is ex- tended to all those in service prior to that date. Even in the case of the new retiral bene t of gratuity under the Payment of Gratuity Act, 1972, past service was taken into consider- ation. The scheme of liberalisation is not a new retiral bene t; it is an up- ward revision of an existing bene t. Pension has correlation to average emoluments and the length of qual- ifying service and any liberalisation would pro tanot ber etroactive in the narrow sense of the term. Assuming the government had not prescribed the speci ed date and thereby pro- vided that those retiring, pre and past the speci ed date, would all be governed by the liberalised pension scheme it would be both prospective and retroactive. Only the pension will have to be recomputed in the light of the formula enacted in the liberalised pension scheme and e ec-

tive from the date the revised scheme comes into force. A statute is not properly called retroactive because a part of the requisites for its action is drawn from a time antecedent to its passing.

(viii) There is no question of pen- sioners dividing the pension fund which, if more persons are admitted to the scheme, would pro rata af- fect the share. The pension scheme, including the liberalised scheme, is non-contributory in character. The payment of pension is a statutory liability undertaken by the Govern- ment. Whatever becomes due and payable on account of pension is recognised as an item of expendi- ture and is budgeted for every year. At any given point of time there is no xed or pre-determined pension fund which is divided amongst eligi- ble pensioners. [195 C-G] (ix) The date of retirement of each employee remaining as it is, there is no ques- tion of fresh commutation of pension of the pensioners who retired prior to 31st March 1979 and have already availed of the bene t of commuta- tion. It is not open to them to get that bene t at this late date because commutation has to be availed of within the speci ed time limit from the date of actual retirement. [206 C-D]

3. The discernible purpose un- derlying the pension scheme must in- form the interpretative process and it should receive a liberal construction. [185 G-H]

(i) Pension is a right; not a bounty or gratuitous payment. The payment of pension does not depend

94 Maj Gen D.S. Nakara v. Union Of India 1982

upon the discretion of the Govern- ment but is governed by the rules and a government servant coming within those rules is entitled to claim pen- sion. [186 A-B]

Deoki Nandan Prasad v.State of Bihar Ors.,[1971] Supp. S.C.R. 634 and State of Punjab Anr.v Iqbal Singh, [1976] 3 S.C.R. 360, referred to.

(ii)The pension payable to a gov- ernment employee is earned by ren- dering long and e cient service and therefore can be said to be a deferred portion of the compensation for ser- vice rendered. [185 F]

(iii)Pension also has a broader signi cance in that it is a social- welfare measure rendering socio- economic justice by providing eco- nomic security in old age to those who toiled ceaselessly in the hey-day of their life. [185 D- E, 186 B-C]

(iv)Pension as a retirement ben- e t is in consonance with and in fur- therance of the goals of the Consti- tution. The goals for which pension is paid themselves give a llip and push to the policy of setting up a welfare state. The preamble to the Constitution envisages the establish- ment of a socialist republic. The ba- sic framework of socialism is to pro- vide a decent standard of life to the working people and especially pro- vide security from cradle to grave. Article 41 enjoins the State to secure public assistance in old age, sickness and disablement. Every state action whenever taken must be directed and must be so interpreted as to take so- ciety one step towards the goal of es-

tablishing a socialist welfare society. While examining the constitutional validity of legislative/administrative action, the touchstone of Directive Principles of State Policy in the light of the Preamble provides a reliable yardstick to hold one way or the other. [190 E,187 F,189 A-B,189 H]

Randhir Singh v. Union of India Ors., [1982] I S.C.C. 618 and Minerva Mills Ltd. Ors. v. Union of India Ors., [1981] I S.C.R. 206, referred to.

4. Any member of the public having su cient interest can main- tain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. The locus standi of petitioner No. 3 which seeks to enforce rights that may be available to a large number of old, in rm retirees is unquestionable as it is a non-political, non-pro t, voluntary organisation registered un- der the Societies Registration Act, 1860 and its members consist of pub- lic spirited citizens who have taken up the cause of ventilating legitimate public problems. [208 H, 209 A-C] S.P.Gupta v. Union of India, [1981] Supp. S.C.C.87, referred to.

JUDGMENT:

ORIGINAL JURISDICTION :

Writ Petition Nos. 5939-41 of 1980.

Anil B. Divan, Mrs. Vineeta Sen Gupta and P.H.Parekh for the Peti- tioners

L.N.Sinha,Attorney General,

M.M. Abdul Khader, N. Nettar and

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Miss A. Subhashini for Union of In- dia. G.L. Sanghi and Randhir Jain for the interveners. S.R.Srivastava for the Intervener.

K.K. Gupta for the Intervener.

The Judgment of the Court was delivered by

DESAI,J.With a slight variation to suit the context Woolesey's prayer : \had I served my God as reverently as I did my king, I would not have fallen on these days of penury" is chanted by petitioners in this group of petitions in the Shellian tune : 'I fall on the thorns of life I bleed.' Old age, ebbing mental and physical prowess, atrophy of both muscle and brain powers permeating these peti- tions, the petitioners in the fall of life yearn for equality of treatment which is being meted out to those who are soon going to join and swell their own ranks,

Do pensioners entitled to receive superannuation or retiring pension under Central Civil Services (Pen- sion) Rules, 1972 ('1972 Rules' for short) form a class as a whole ? Is the date of retirement a relevant consid- eration for eligibility when a revised formula for computation of pension is ushered in and made e ective from a speci ed date ? Would di eren- tial treatment to pensioners related to the date of retirement qua the revised formula for computation of pension attract Article 14 of the Con- stitution and the element of discrimi- nation liable to be declared unconsti- tutional as being violative of Art. 14 ? These and the related questions de- bated in this group of petitions call

for an answer in the backdrop of a welfare State and bearing in mind that pension is a socio-economic jus- tice measure providing relief when advancing age gradually but irrevo- cably impairs capacity to stand on one's own feet.

Factual matrix has little rele- vance to the issues raised and can- vassed at the hearing. Petitioners 1 and 2 are retired pensioners of the Central Government, the rst being a civil servant and the second being a member of the service personnel of the Armed Forces. The third peti- tioner is a society registered under the Societies Registration Act, 1860, formed to ventilate the legitimate public problems and consistent with its objective it is espousing the cause of the pensioners all over the coun- try. Its locus standi is in question but that is a di erent matter. Therst petitioner retired in 1972 and on computation, his pension worked out at Rs. 675/- p.m. and along with the dearness relief granted from time to time, at the relevant time he was in receipt of monthly pension of Rs. 935/-. The second petitioner retired at or about that time and at the rel- evant time was in receipt of a pen- sion plus dearness relief of Rs. 981/- p.m. Union of India has been revis- ing and liberalising the pension rules from time to time. Some landmark changes may be noticed.

The First Central Pay Commis- sion (1946-47) recommended that the age of retirement in future should be uniformly 58 years for all services and the scale of pension should be 1/80 of the emoluments for each year of ser-

96 Maj Gen D.S. Nakara v. Union Of India 1982

vice, subject to a limit of 35/80 with a ceiling of Rs. 8,000 per year for 35 years of service, which the Gov- ernment of India while accepting the recommendation raised to Rs. 8,100 per year which would earn a monthly pension of Rs. 675 at the maximum. The Second Central Pay Commis- sion (1957-58) re-a rmed that the age of superannuation should be 58 years for all classes of public ser- vants but did not recommend any in- crease in the non- contributory re- tirement bene ts and recommended that if in future any improvement is to be made, it was the consid- ered view of the Commission that these bene ts should be on a contrib- utory basis. The Administrative Re- forms Commission ('ARC' for short) set up by the Government of India in 1956 took note of the fact that the cost of living has shot up and corre- spondingly the possibility of savings has gone down and consequently the drop in wages on retirement is in real- ity much steeper than what the quan- tum of pension would indicate, and accordingly the ARC recommended that the quantum of pension admissi- ble may be raised to 3/6 of the emol- uments of the last three years of ser- vice as against the existing 3/8 and the ceiling should be raised from Rs. 675 p.m. to Rs. 1000 p.m. Before the Government could take its decision on the recommendations of the ARC, the Third Central Pay Commission was set up. One of the terms of reference of the Third Pay Commis- sion was 'death-cum- retirement ben- e ts of Central Government employ- ees'. The Third Pay Commission did not examine the question of relief to

pensioners because in its view unless the terms of reference were suitably amended it would not be within their jurisdiction to examine this question and on a reference by them, the Government of India decided not to amend the terms of reference. With regard to the future pensioners the Third Pay Commission while reiter- ating that the age of superannuation should continue to be 58 years fur- ther recommended that no change in the existing formula for comput- ing pension is considered necessary. The only important recommendation worth noticing is that the Commis- sion recommended that the existing ceiling of maximum pension should be raised from Rs. 675 to Rs. 1,000 p.m. and the maximum of the gratu- ity should be raised from Rs. 24,000 to Rs. 30,000.

On May 25, 1979, Government of India, Ministry of Finance, is- sued O ce Memorandum No. F- 19(3)-EV-79 whereby the formula for computation of pension was liber- alised but made it applicable to Gov- ernment servants who were in ser- vice on March 31, 1979 and re- tire from service on or after that date (speci ed date for short). The formula introduced a slab system for computation of pension. This liberalised pension formula was ap- plicable to employees governed by the 1972 Rules retiring on or af- ter the speci ed date. The pen- sion for the service personnel which will include Army, Navy and Air Force sta is governed by the relevant regulations. By the Memorandum of the Ministry of Defence bearing

97

No. B/40725/AG/PS4-C/1816/AD (Pension)/Services dated September 28, 1979, the liberalised pension for- mula introduced for the government servants governed by the 1972 rules was extended to the Armed Forces personnel subject to limitations set out in the memorandum with a con- dition that the new rules of pen- sion would be e ective from April 1, 1979, and may be applicable to all service o cers who become/became non-e ective on or after that date. (for short speci ed date).

The chronology of events herein narrated would bring to surface the contentions raised in these petitions. The liberalised pension formula shall be applicable prospectively to those who retired on or after March 31, 1979 in case of government servants covered by 1972 Rules and in re- spect of defence personnel those who became/become non-e ective on or after April 1, 1979. Consequently those who retired prior to the spec- i ed date would not be entitled to the bene ts of the liberalised pen- sion formula. Petitioners accord- ingly contend that this Court may consider the raison d'etre for pay- ment of pension. If the Pension is paid for past satisfactory service rendered, and to avoid destitution in old age as well as a social wel- fare or socio-economic justice mea- sure, the di erential treatment for those retiring prior to a certain date and those retiring subsequently, the choice of the date being wholly arbi- trary, would be according di erential treatment to pensioners who form a class irrespective of the date of re-

tirement and, therefore, would be vi- olative of Art. 14. It was also con- tended that classi cation based on fortuitous circumstance of retirement before or subsequent to a date, x- ing of which is not shown to be re- lated to any rational principle, would be equally violative of Art. 14. Pri- mary contention is that the pension- ers of the Central Government form a class for purpose of pensionary ben- e ts and there could not be mini- classi cation within the class desig- nated as pensioners. The expression 'pensioner' is generally understood in contra-distinction to the one in ser- vice. Government servants in service, in other words, those who have not retired, are entitled to 175

salary and other allowances. Those who retire and are designated as 'pensioners' are entitled to receive pension under the relevant rules. Therefore, this would clearly indicate that those who render service and re- tire on superannuation or any other mode of retirement and are in receipt of pension are comprehended in the expression 'pensioners'.

Is this class of pensioners further divisible for the purpose of 'entitle- ment' and 'payment' of pension into those who retired by certain date and those who retired after that date ? If date of retirement can be accepted as a valid criterion for classi cation, on retirement each individual govern- ment servant would form a class by himself because the date of retire- ment of each is correlated to his birth date and on attaining a certain age he had to retire. It is only after the recommendations of the Third Cen-

98 Maj Gen D.S. Nakara v. Union Of India 1982

tral Pay Commission were accepted by the Government of India that the retirement dates have been speci ed to be 12 in number being last day of each month in which the birth date of the individual government servant happens to fall. In other words, all government servants who retire cor- related to birth date on attaining the age of superannuation in a given month shall not retire on that date but shall retire on the last day of the month. Now, if date of retirement is a valid criterion for classi cation, those who retire at the end of every month shall form a class by them- selves. This is too microscopic a clas- si cation to be upheld for any valid purpose. Is it permissible or is it vi- olative of Art. 14 ? The scope, con- tent and meaning of Article 14 of the Constitution has been the subject- matter of intensive examination by this Court in a catena of decisions. It would, therefore, be merely adding to the length of this judgment to re- capitulate all those decisions and it is better to avoid that exercise save and except referring to the latest decision on the subject in Maneka Gandhi v. Union of India(1) from which the fol- lowing observation may be extracted:

\...... what is the content and reach of the great equalising princi- ple enunciated in this article ? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic repub- lic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-

embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and di- mensions and it cannot be impris- oned within traditional and doctri- naire limits..... Article 14 strikes at arbitrariness in State action and en- sures fairness and equality of treat- ment. The principle of reasonable- ness, which legally as well as philo- sophically, is an essential element of equality or non-arbitrariness per- vades Article 14 like a brooding om- nipresence."

The decisions clearly lay down that though Art. 14 forbids class legislation, it does not forbid rea- sonable classi cation for the purpose of legislation. In order, however, to pass the test of permissible classi - cation, two conditions must be ful-lled, viz., (i) that the classi cation must be founded on an intelligible di erentia which distinguishes per- sons or things that are grouped to- gether from those that are left out of the group; and (ii) that di erentia must have a rational relation to the objects sought to be achieved by the statute in question. (see Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar Others.(1) The classi ca- tion may be founded on di erential basis according to objects sought to be achieved but what is implicit in it is that there ought to be a nexus i.e., causal connection between the basis of classi cation and object of the statute under consideration. It is equally well settled by the deci- sions of this Court that Art. 14 con- demns discrimination not only by a

99

substantive law but also by a law of procedure. After an exhaustive re- view of almost all decisions bearing on the question of Art. 14, this Court speaking through Chandrachud, C.J. in Re. Special Courts Bill (2) re- stated the settled propositions which emerged from the judgments of this Court undoubtedly insofar as they were relevant to the decision on the points arising for consideration in that matter. Four of them are apt and relevant for the present purpose and may be extracted. They are:

\3. The constitutional command to the State to a ord equal protec- tion of its laws sets a goal not attain- able by the invention and applica- tion of a precise formula. Therefore, classi cation need not be constituted by an exact or scienti c exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classi-cation in any given case. Classi ca- tion is justi ed if it is not palpably arbitrary.

4. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applica- ble to all persons within the Indian territory or that the same remedies should be made available to them ir- respective of di erences of circum- stances. It only means that all per- sons similarly circumstanced shall be treated alike both in privileges con- ferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as re-

gards the subject matter of the legis- lation their position is substantially the same.

6.The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classi cation should never be ar- bitrary, arti cial or evasive.

7.The classi cation must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or charac- teristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have

areasonable relation to the object of the legislation. In order to pass the test, two conditions must be ful-lled, namely, (1) that the classi - cation must be founded on an intel- ligible di erentia which distinguishes those that are grouped together from others and (2) that di erentia must have a rational relation to the object sought to be achieved by the Act."

The other facet of Art. 14 which must be remembered is that it es- chews arbitrariness in any form. Ar- ticle 14 has, therefore, not to be held identical with the doctrine of classi-cation. As was noticed in Maneka Gandhi's case in the earliest stages of evolution of the Constitutional law, Art. 14 came to be identi ed with the doctrine of classi cation because the view taken was that Art. 14 for- bids discrimination and there will be no discrimination where the classi - cation making the di erentia ful ls the aforementioned two conditions.

100 Maj Gen D.S. Nakara v. Union Of India 1982

However, in EP. Royappa v. State of Tamil Nadu(1), it was held that the basic principle which informs both Arts. 14 and 16 is equality and in- hibition against discrimination. This Court further observed as under:

\From a positivistic point of view, equality is antithetic to arbi- trariness. In fact, equality and ar- bitrariness are sworn enemies; one belongs to the rule of law in a re- public while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is im- plicit in it that it is unequal both according to political logic and con- stitutional law and is, therefore, vi- olative of Art. 14, and if it a ects any matter relating to public employ- ment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrari- ness in State action and ensure fair- ness and equality of treatment."

Justice Iyer has in his inimitable style dissected Art. 14 as under:

\The article has a pervasive pro- cessual potency and versatile qual- ity, equalitarian in its soul and aller- gic to discriminatory diktats. Equal- ity is the antithesis of arbitrari- ness and ex cathedra ipse dixit is the ally of demagogic authoritarian- ism. Only knight- errants of 'execu- tive excesses'-if we may use current cliche-can fall in love with the Dame of despotism, legislative or adminis- trative. If this Court gives in here it gives up the ghost. And so it that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law; be you ever so high, the law is above you."(2)

A rming and explaining this view, the Constitution Bench in Ajay Hasia etc. v. Khalid Mujib Sehravardi others etc. (3) held that it must, therefore, now be taken to be well settled that what Art.14 strikes at is arbitrariness because any ac- tion that is arbitrary must necessar- ily involve negation of equality. The Court made it explicit that where an act is arbitrary it is implicit in it that it is unequal both according to polit- ical logic and constitutional law and is, therefore, violative of Art. 14. Af- ter a review of large number of deci- sions bearing on the subject, in Air India etc. etc. v. Nargesh Meerza Ors. etc etc. (1) the Court for- mulated propositions emerging from analysis and examination of earlier decisions. One such proposition held well established is that Art. 14 is certainly attracted where equals are treated di erently without any rea- sonable basis.

Thus the fundamental principle is that Art. 14 forbids class legislation but permits reasonable classi cation for the purpose of legislation which classi cation must satisfy the twin tests of classi cation being founded on an intelligible di erntia which dis- tinguishes persons or things that are grouped together from those that are left out of the group and that di er- entia must have a rational nexus to the object sought to be achieved by the statute in question.

As a corrolary to this well es- tablished proposition, the next ques- tion is, on whom the burden lies to a rmatively establish the ratio- nal principle on which the classi ca-

101

tion is founded correlated to the ob- ject sought to be achieved ? The thrust of Art. 14 is that the citi- zen is entitled to equality before law and equal protection of laws. In the very nature of things the society be- ing composed of unequals a welfare state will have to strive by both ex- ecutive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of state a rmative action. In the absence of doctrine of classi ca- tion such legislation is likely to oun- der on the bed rock of equality en- shrined in Art. 14. The court realis- tically appraising the social strati - cation and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in part IV of the Constitution, evolved the doctrine of classi cation. The doc- trine was evolved to sustain a legisla- tion or State action designed to help weaker sections of the society or some such segments of the society in need of succor. Legislative and executive action may accordingly be sustained if it satis es the twin tests of rea- sonable classi cation and the ratio- nal principle correlated to the object sought to be achieved. The State, therefore, would have to a rmatively satisfy the Court that the twin tests have been satis ed. It can only be satis ed if the State establishes not only the rational principle on which classi cation is founded but corre-

late it to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shetty v. The In- ternational Airport Authority of In- dia Ors.(1) when at page 1034, the Court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unrea- sonable or discriminatory. The basic contention as hereinbefore noticed is that the pensioners for the purpose of receiving pension form a class and there is no criterion on which clas- si cation of pensioners retiring prior to speci ed date and retiring subse- quent to that date can provide a ra- tional principle correlated to object, viz., object underlying payment of pensions. In reply to this contention set out in para 19 of the petition, Mr. S.N. Mathur, Director, Ministry of Finance in part 17 of his a davit-in- opposition on behalf of the respon- dents has averred as under:

\The contentions in part 18 and 19 that all pensioners form one class is not correct and the petitioners have not shown how they form one class. Classi cation of pensioners on the basis of their date of retirement is a valid classi cation for the purpose of pensionary bene ts."

These averments would show at a glance that the State action is sought to be sustained on the doctrine of classi cation and the criterion on which the classi cation is sought to be sustained is the date of retirement of the Government servant which en-

102 Maj Gen D.S. Nakara v. Union Of India 1982

titled him to pension. Thus accord- ing to the respondents, pensioners who retire from Central Government service and are governed by the rele- vant pension rules all do not form a class but pensioners who retire prior to a certain date and those who re- tire subsequent to a certain date form distinct and separate classes. It may be made clear that the date of retire- ment of each individual 181

pensioner is not suggested as a criterion for classi cation as that would lead to an absurd result, be- cause in that event every pensioner relevant to his date of retirement will form a class unot himself. What is suggested is that when a pension scheme undergoes a revision and is enforced e ective form a certain date, the date so speci ed becomes a sort of a Rubicon and those who retire prior to that date form one class and those who retire on a subsequent date form a distinct and separate class and no one can cross the Rubicon. And the learned Attorney General contended that this di erentiation is grounded on a rational principle and it has a direct correlation to the ob- ject sought to be achieved by liber- alised pension formula.

The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised ? Is the employer, which expression will include even the State, bound to pay pension ? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employ- ment has come to an end and the em-

ployee has ceased to render service ?

What is a pension ? What are the goals of pension ? What public inter- est or purpose, if any, it seeks to serve ? If it does seek to serve some public purpose, is it thwarted by such arti-cial division of retirement pre and post a certain date ? We need seek answer to these and incidental ques- tions so as to render just justice be- tween parties to this petition.

The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the car- pet by the decision of the Constitu- tion Bench in Deoki Nandan Prasad v. State of Bihar Ors. (1) wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the dis- cretion of the Government but is gov- erned by the rules and a Government servant coming within those rules is entitled to claim pension. It was fur- ther held that the grant of pension does not depend upon any one's dis- cretion. It is only for the purpose of quantifying the amount having re- gard to service and other allied mat- ters that it may be necessary for the authority to pass an order to that ef- fect but the right to receive pensionows to the o cer not because of any such order but by virtue of the rules. This view was rea rmed in State of Punjab Anr. v. Iqbal Singh (1).

There are various kinds of pen- sions and there are equally vari- ous methods of funding pension pro-

103

grammes. The present enquiry is limited to non-contributory superan- nuation or retirement pension paid by Government to its erstwhile em- ployee and the purpose and object underlying it. Initially this class of pension appears to have been intro- duced as a reward for loyal service. Probably the alien rulers who re- cruited employees in lower echelons of service from the colony and ex- ported higher level employees from the seat of Empire, wanted to en- sure in the case of former contin- ued loyalty till death to the alien rulers and in the case of latter, an assured decent living standard in old age ensuring economic security at the cost of the colony. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability, State obliga- tion to provide security in old age, an escape from undeserved want was recognised and as a rst step pen- sion was treated not only as a reward for past service but with a view to helping the employee to avoid des- titution in old age. The quid pro quo, was that when the employee was physically and mentally alert he ren- dered unot master the best, expect- ing him to look after him in the fall of life. A retirement system there- fore exists solely for the purpose of providing bene ts. In most of the plans of retirement bene ts, every- one who quali es for normal retire- ment receives the same amount. (see Retirement Systems for Public Em- ployees by Bleakney, page 33.)

As the present case is concerned with superannuation pension, a brief

history of its initial introduction in early stages and continued existence till today may be illuminating. Su- perannuation is the most descriptive word of all but has become obsoles- cent because it seems ponderous. Its genesis can be traced to the rst Act of Parliament (in U.K.) to be con- cerned with the provision of pensions generally in public o ces. It was passed in 1810. The Act which sub- stantively devoted itself exclusively to the problem of superannuation pension was superannuation Act of 1834. These are landmarks in pen- sion history because they attempted for the rst time to establish a com- prehensive and uniform scheme for all whom we may now call civil ser- vants. Even before the 19th century, the problem of providing for public servants who are unable, through old age or incapacity, to continue work- ing, has been recognised, but meth- ods of dealing with the problem var- ied from society to society and even occasionally from department to de- partment.

A political society which has a goal of setting up of a welfare State, would introduce and has in fact introduced as a welfare mea- sure wherein the retiral bene t is grounded on 'considerations of State obligation to its citizens who hav- ing rendered service during the useful span of life must not be left to penury in their old age, but the evolving con- cept of social security is a later day development'. And this journey was over a rough terrain. To note only one stage in 1856 a Royal Commis- sion was set up to consider whether

104 Maj Gen D.S. Nakara v. Union Of India 1982

any changes were necessary in the system established by the 1834 Act. The Report of the Commission is known as \Northcote-Trevelyan Re- port". The Report was pungent in its criticism when it says that: \in civil services comparable to lightness of work and the certainty of provi- sion in case of retirement owing to bodily incapacity, furnish strong in- ducements to the parents and friends of sickly youths to endeavour to ob- tain for them employment in the ser- vice of the Government, and the ex- tent to which the public are con- sequently burdened; rst with the salaries of o cers who are obliged to absent themselves from their duties on account of ill health, and after- wards with their pensions when they retire on the same plea, would hardly be credited by those who have not had opportunities of observing the operation of the system" (see Gerald Rhodes, Public Sector Pensions, pp. 18-19).

This approach is utterly unfair because in modern times public ser- vices are manned by those who enter at a comparatively very young age, with selection through national com- petitive examination and ordinarily the best talent gets the opportunity.

Let us therefore examine what are the goals that pension scheme seeks to subserve ? A pension scheme consistent with available re- sources must provide that the pen- sioner would be able to live: (i) free from want, with decency, inde- pendence and self-respect, and (ii) at a standard equivalent at the pre- retirement level. This approach may

merit the criticism that if a develop- ing country like India cannot provide an employee while rendering service a living wage, how can one be as- sured of it in retirement ? This can be aptly illustrated by a small illus- tration. A man with a broken arm asked his doctor whether he will be able to play the piano after the cast is removed. When assured that he will, the patient replied, 'that is funny, I could not before'. It appears that de- termining the minimum amount re- quired for living decently is di cult, selecting the percentage represent- ing the proper ratio between earn- ings and the retirement income is harder. But it is imperative to note that as self- su ciency declines the need for his attendance or institu- tional care grows. Many are liter- ally surviving now than in the past. We owe it to them and ourselves that they live, not merely exist. The phi- losophy prevailing in a given soci- ety at various stages of its develop- ment profoundly in uences its social objectives. These objectives are in turn a determinant of a social pol- icy. The law is one of the chief in- struments whereby the social poli- cies are implemented and 'pension is paid according to rules which can be said to provide social security law by which it is meant those legal mecha- nisms primarily concerned to ensure the provision for the individual of a cash income adequate, when taken along with the bene ts in kind pro- vided by other social services (such as free medical aid) to ensure for him a culturally acceptable minimum standard of living when the normal means of doing so failed'. (see Social

105

Security law by Prof. Harry Calvert, p. 1).

Viewed in the light of the present day notions pension is a term applied to periodic money payments to a per- son who retires at a certain age con- sidered age of disability; payments usually continue for the rest of the natural life of the recipient. The reasons underlying the grant of pen- sion vary from country to country and from scheme to scheme. But broadly stated they are (i) as com- pensation to former members of the armed forces or their dependents for old age, disability, or death (usually from service causes), (ii) as old age retirement or disability bene ts for civilian employees, and (iii) as so- cial security payments for the aged, disabled, or deceased citizens made in accordance with the rules govern- ing social service programmes of the country. Pensions under the rst head are of great antiquity. Under the second head they have been in force in one form or another in some countries for over a century but those coming under the third head are rel- atively of recent origin, though they are of the greatest magnitude. There are other views about pensions such as charity, paternalism, deferred pay, rewards for service rendered, or as a means or promoting general welfare (see Encyclopaedia Britannica, Vol. 17 p.575.) But these views have be- come otiose.

Pension to civil employees of the Government and the defence person- nel as administered in India appear to be a compensation for service ren- dered in the past. However, as held

in Douge v. Board of Education(1) a pension is closely akin to wages in that it consists of payment pro- vided by an employer, is paid in con- sideration of past service and serves the purpose of helping the recipient meet the expenses of living. This ap- pears to be the nearest to our ap- proach to pension with the added quali cation that it should ordinar- ily ensure freedom from undeserved want. Summing-up it can be said with con dence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader signi cance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and men- tal prowess is ebbing corresponding to aging process and therefore, one is required to fall back on savings. One such saving in kind is when you gave your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodi- cal payment is assured. The term has been judicially de ned as a stated al- lowance or stipend made in consider- ation of past service or a surrender of rights or emoluments to one re- tired from service. Thus the pension payable to a Government employee is earned by rendering long and e cient service and therefore can be said to be a deferred portion of the compen- sation or for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.

106 Maj Gen D.S. Nakara v. Union Of India 1982

The discernible purpose thus un- derlying pension scheme or a statute introducing the pension scheme must inform interpretative process and ac- cordingly it should receive a liberal construction and the courts may not so interpret such statute as to render them inane (see American Jurispru- dence 2d. 881).

From the discussion three things emerge : (i) that pension is neither a bounty nor a matter of grace de- pending upon the sweet will of the employer and that it creates a vested right subject to 1972 rules which are statutory in character because they are enacted in exercise of powers con- ferred by the proviso to Art. 309 and clause (5) of Art. 148 of the Consti- tution ; (ii) that the pension is not an ex-gratia payment but it is a pay- ment for the past service rendered ; and (iii) it is a social welfare mea- sure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quan- tum of pension is a certain percent- age correlated to the average emolu- ments drawn during last three years of service reduced to ten months un- der liberalised pension scheme. Its payment is dependent upon an ad- ditional condition of impeccable be- haviour even subsequent to require- ment, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disci- plinary measure. Having succinctly focussed our attention on the con- spectus of elements and incidents of

pension the main question may now be tackled. But, the approach of court while considering such measure is of paramount importance. Since the advent of the Constitution, the state action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State. Article 38 (1) enjoins the State to strive to promote welfare of the peo- ple by securing and protecting as ef- fective as it may a social order in which justice social, economic and political shall inform all institutions of the national life. In particular the State shall strive to minimise the inequalities in income and endeav- our to eliminate inequalities in sta- tus, facilities and opportunities. Art. 39 (d) enjoins a duty to see that there is equal pay for equal work for both men and women and this di- rective should be understood and in- terpreted in the light of the judg- ment of this Court in Randhir Singh v. Union of India Ors.(1) Revealing the scope and content of this facet of equality, Chinnappa Reddy, J. speak- ing for the Court observed as under : \Now, thanks to the rising social and political consciousness and the ex- pectations aroused as a consequence and the forward looking posture of this Court, the under-privileged also are clamouring for the rights and are seeking the intervention of the Court with touching faith and con dence in the Court. The Judges of the Court have a duty to redeem their Consti- tutional oath and do justice no less to the pavement dweller than to the guest of the Five Star Hotel."

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Proceeding further, this Court observed that where all relevant con- siderations are the same, persons holding identical posts may not be treated di erently in the matter of their pay merely because they be- long to di erent departments. If that can't be done when they are in ser- vice, can that be done during their retirement? Expanding this princi- ple, one can con dently say that if pensioners form a class, their compu- tation cannot be by di erent formula a ording unequal treatment solely on the ground that some retired earlier and some retired later. Art. 39 (e) requires the State to secure that the health and strength of workers, men and women, and children of tender age are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Art. 41 obligates the State within the limits of its eco- nomic capacity and development, to make e ective provision for securing the right to work, to education and to provide assistance in cases of unem- ployment, old age, sickness and dis- ablement, and in other cases of unde- served want. Art. 43 (3) requires the State to endeavour to secure amongst other things full enjoyment of leisure and social and cultural opportuni- ties.

Recall at this stage the Pream- ble, the ood light illuminating the path to be pursued by the State to set up a Sovereign Socialist Secu- lar Democratic Republic. Expres- sion 'socialist' was intentionally in- troduced in the Preamble by the Constitution (Forty-Second Amend-

ment) Act, 1976. In the objects and reasons for amendment amongst other things, ushering in of socio- economic revolution was promised. The clarion call may be extracted :

\The question of amending the Constitution for removing the di - culties which have arisen in achieving the objective of socio-economic revo- lution, which would end poverty and ignorance and disease and inequal- ity of opportunity, has been engaging the active attention of Government and the public for some time......... It is, therefore, proposed to amend the Constitution to spell out expressly the high ideals of socialism........to make the directive principles more comprehensive......"

What does a Socialist Repub- lic imply? Socialism is a much misunderstood word. Values deter- mine contemporary socialism pure and simple. But it is not necessary at this stage to go into all its rami-cations. The principal aim of a so- cialist State is to eliminate inequal- ity in income and status and stan- dards of life. The basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave. This amongst oth- ers on economic side envisaged eco- nomic equality and equitable distri- bution of income. This is a blend of Marxism and Gandhism leaning heavily towards Gandhian socialism. During the formative years, social- ism aims at providing all opportu- nities for pursuing the educational activity. For want of wherewithal or nancial equipment the opportu-

108 Maj Gen D.S. Nakara v. Union Of India 1982

nity to be fully educated shall not be denied. Ordinarily, therefore, a socialist State provides for free ed- ucation from primary to Ph. D. but the pursuit must be by those who have the necessary intelligence quotient and not as in our society where a brainy young man coming from a poor family will not be able to prosecute the education for want of wherewithal while the ill-equipped son or daughter of a well-to-do fa- ther will enter the portals of higher education and contribute to national wastage. After the education is com- pleted, socialism aims at equality in pursuit of excellence in the chosen avocation without let or hindrance of caste, colour, sex or religion and with full opportunity to reach the top not thwarted by any considerations of status, social or otherwise. But even here the less equipped person shall be assured a decent minimum standard of life and exploitation in any form shall be eschewed. There will be equitable distribution of na- tional cake and the worst o shall be treated in such a manner as to push them up the ladder. Then comes the old age in the life of everyone, be he a monarch or a Mahatma, a worker or a pariah. The old age over- takes each one, death being the ful l- ment of life providing freedom from bondage. But there socialism aims at providing an economic security to those who have rendered unot soci- ety what they were capable of doing when they were fully equipped with their mental and physical prowess. In the fall of life the State shall en- sure to the citizens a reasonably de- cent standard of life, medical aid,

freedom from want, freedom from fear and the enjoyable leisure, reliev- ing the boredom and the humility of dependence in old age. This is what Art. 41 aims when it enjoins the State to secure public assistance in old age, sickness and disablement. It was such a socialist State which the Preamble directs the centres of power Legislative Executive and Judiciary- to strive to set up. From a wholly feudal exploited slave society to a vi- brant, throbbing socialist welfare so- ciety is a long march but during this journey to the ful lment of goal every State action whenever taken must be directed, and must be so interpreted, as to take the society one step to- wards the goal.

To some extent this approach willnd support in the judgment in Min- erva Mills Ltd. Ors. v. Union of In- dia Ors.(1). Speaking for the major- ity, Chandrachud, C.J. observed as under :

\This is not mere semantics. The edi ce of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to consti- tute ourselves into a Socialist State which carried with it the obligation to secure to our people justice-social, economic and political. We, there- fore, put Part IV into our Constitu- tion containing directive principles of State policy which specify the social- istic goal to be achieved."

At a later stage it was observed that the fundamental rights are not an end in themselves but are the means to an end, the end is speci-ed in part IV. Bhagwati, J. in his minority judgment after extracting

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a portion of the speech of the then Prime Minister Jawahar Lal Nehru, while participating in a discussion on the Constitution (First Amend- ment) Bill, observed that the Direc- tive Principles are intended to bring about a socio-economic revolution and to create a new socio-economic order where there will be social and economic justice for all and every- one, not only a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and ex- ercise the fundamental rights. It, therefore, appears to be well estab- lished that while interpreting or ex- amining the constitutional validity of legislative/administrative action, the touchstone of Directive Princi- ples of State Policy in the light of the Preamble will provide a reliable yard- stick to hold one way or the other.

With this background let us now turn to the challenge posed in these petitions. The challenge is not to the validity of the pension liberalisation scheme. The scheme is wholly ac- ceptable to the petitioners, nay they are ardent supporters of it, nay fur- ther they seek the bene t of it. The petitioners challenge only that part of the scheme by which its bene ts are admissible to those who retired from service after a certain date. In other words, they challenge that the scheme must be uniformly enforced with regard to all pensioners for the purpose of computation of pension ir- respective of the date when the Gov- ernment servant retired subject to the only condition that he was gov- erned by the 1972 Rules. No doubt,

the bene t of the scheme will be available from the speci ed date, ir- respective of the fact when the con- cerned Government servant actually retired from service.

Having set out clearly the soci- ety which we propose to set up, the direction in which the State action must move, the welfare State which we propose to build up, the consti- tutional goal of setting up a social- ist State and the assurance in the Directive Principles of State Policy especially of security in old age at least to those who have rendered use- ful service during their active years, it is indisputable, nor was it ques- tioned, that pension as a retirement bene t is in consonance with and fur- therance of the goals of the Constitu- tion. The goals for which pension is paid themselves give a llip and push to the policy of setting up a welfare State because by pension the social- ist goal of security of cradle to grave is assured at least when it is mostly needed and least available, namely, in the fall of life.

If such be the goals of pension, if such be the welfare State which we propose to set up, if such be the goals of socialism and conceding that any welfare measure may consistent with economic capacity of the State be progressively augmented with wider width and a longer canvass yet when the economic means permit the aug- mentation, should some be left out for the sole reason that while in the formative years of the nascent State they contributed their mite but when the fruits of their labour led to theowering of economic development

110 Maj Gen D.S. Nakara v. Union Of India 1982

and higher gross national produce bringing in larger revenue and there- fore larger cake is available, they would be denied any share of it ? Indisputably, viewed from any an- gle pensioners for payment of pen- sion form a class. Unquestionably pension is linked to length of ser- vice and the last pay drawn but the last pay does not imply the pay on the last day of retirement but av- erage emoluments as de ned in the scheme. Earlier average emoluments of 36 months' service provided the measure of pension because the pen- sion was related to the average emol- uments during 36 months just pre- ceding retirement. By the liberalised scheme it is now reduced to average emoluments of 10 months preceding the date. Any one in government service would appreciate at a glance that with an average of 10 months it would be on the higher side on ac- count of the two fortuitous circum- stances that the pay- scales, if one has not reached the maximum, per- mit annual increments and there are promotions in the last one or two years. With a view to giving a higher average the scheme was liberalised to provide for average emoluments with reference to last 10 months' service. Coupled with it, a slab system for computation is introduced and the ceiling is raised. This is liberalisa- tion. Now, if the pensioners who re- tired prior to the speci ed date and had to earn pension on the average emoluments of 36 months' salary just preceding the date of retirement, nat- urally the average would be lower and they will be doubly hit because the slab system as now introduced

was not available and the ceiling was at a lower level. Thus they suf- fer triple jeopardy, viz., lower aver- age emoluments, absence of slab sys- tem and lower ceiling. What then is the purpose in prescribing the speci-ed date vertically dividing the pen- sioners between those who retired prior to the speci ed date and those who retire subsequent to that date? That poses the further question, why was the pension scheme liberalised ? What necessitated liberalisation of the pension scheme ?

Both the impugned memoranda do not spell out the raison d'etre for liberalising the pension formula. In the a davit in opposition by Shri S.N. Mathur, it has been stated that the liberalisation of pension of re- tiring Government servants was de- cided by the Government in view of the persistent demand of the Central Government employees represented in the scheme of Joint Consultative Machinery. This would clearly im- ply that the preliberalised pension scheme did not provide adequate pro- tection in old age and that a fur- ther liberalisation was necessary as a measure of economic security. When Government favourably responded to the demand it thereby ipso facto conceded that there was a larger available national cake part of which could be utilised for providing higher security to erstwhile government ser- vants who would retire. The Gov- ernment also took note of the fact that continuous upward movement of the cost of living index as a sequel of in ationary inputs and diminish- ing purchasing power of rupee neces-

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sitated upward revision of pension. If this be the underlying intendment of liberalisation of pension scheme, can any one be bold enough to assert that it was good enough only for those who would retire subsequent to the speci ed date but those who had al- ready retired did not su er the pangs of rising prices and falling purchasing power of the rupee ? What is the sum total of picture ? Earlier the scheme was not that liberal keeping in view the de nition of average emoluments and the absence of slab system and a lower ceiling. Those who rendered the same service earned less pension and are exposed to the vagary of ris- ing prices consequent upon the in-ationary inputs. If therefore, those who are to retire subsequent to the speci ed date would feel the pangs in their old age, of lack of adequate security, by what stretch of imagi- nation the same can be denied to those who retired earlier with lower emoluments and yet are exposed to the vagaries of the rising prices and the falling purchasing power of the rupee. And the greater misfortune is that they are becoming older and older compared to those who would be retiring subsequent to the speci-ed date. The Government was per- fectly justi ed in liberalising the pen- sion scheme. In fact it was overdue. But we nd no justi cation for arbi- trarily selecting the criteria for eligi- bility for the bene ts of the scheme dividing the pensioners all of whom would be retirees but falling on one or the other side of the speci ed date.

Therefore, let us proceed to ex- amine whether there was any ratio-

nale behind the eligibility quali ca- tion. The learned Attorney-General contended that the scheme is one whole and that the date is an inte- gral part of the scheme and the Gov- ernment would have never enforced the scheme devoid of the date and the date is not severable from the scheme as a whole. Contended the learned Attorney-General that the Court does not take upon itself the function of legislation for persons, things or situations omitted by the legislature. It was said that when the legislature has expressly de ned the class with clarity and precision to which the legislation applies, it would be outside the judicial function to en- large the class and to do so is not to interpret but to legislate which is the forbidden eld. Alternatively it was also contended that where a larger class comprising two smaller classes is covered by a legislation of which one part is constitutional, the Court examines whether the legisla- tion must be invalidated as a whole or only in respect of the unconstitu- tional part. It was also said that sev- erance always cuts down the scope of legislation but can never enlarge it and in the present case the scheme as it stands would not cover pensioners such as the petitioners and if by sev- erance an attempt is made to include them in the scheme it is not cutting down the class or the scope but en- large the ambit of the scheme which is impermissible even under the doc- trine of severability. In this context it was lastly submitted that there is not a single case in India or elsewhere where the Court has included some category within the scope of provi-

112 Maj Gen D.S. Nakara v. Union Of India 1982

sions of a law to maintain its consti- tutionality.

The last submission, the absence of precedent need not deter us for a moment. Every new norm of so- cio economic justice, every new mea- sure of social justice commenced for the rst time at some point of his- tory. If at that time it is rejected as being without a precedent, the law as an instrument of social engineer- ing would have long since been dead and no tears would have been shed. To be pragmatic is not to be un- constitutional. In its onward march law as an institution ushers in socio- economic justice. In fact, social se- curity in old age commended itself in earlier stages as a moral concept but in course of time it acquired le- gal contention. The rules of natu- ral justice owed their origin to eth- ical and moral code. Is there any doubt that they have become the in- tegral and inseparable parts of rule of law of which any civilised society is proud ? Can anyone be bold enough to assert that ethics and morality are outside the eld of legal formulations ? Socio-economic justice stems from the concept of social morality cou- pled with abhorrence for economic exploitation. And the advancing so- ciety converts in course of time moral or ethical code into enforceable le- gal formulations. Over-emphasis on precedent furnishes an insurmount- able road-block to the onward march towards promised millennium. An overdose of precedents is the bane of our system which is slowly getting stagnant, strati ed and atrophied. Therefore absence of a precedent on

this point need not deter us at all. We are all the more happy for the chance of scribbling on a clean slate.

If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension bene ts form a class, would its upward revi- sion permit a homogeneous class to be divided by arbitrarily xing an eligibility criteria unrelated to pur- pose of revision, and would such clas- si cation be founded on some ratio- nal principle ? The classi cation has to be based, as is well settled, on some rational principle and the ratio- nal principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we nd no ra- tional principle behind it for granting these bene ts only to those who re- tired subsequent to that date simul- taneously denying the same to those who retired prior to that date. If the liberalisation was considered neces- sary for augmenting social security in old age to government servants then those who retired earlier cannot be worst o than those who retire later. Therefore, this division which classi-ed pensioners into two classes is not based on any rational principle and if the rational principle is the one of di- viding pensioners with a view to giv- ing something more to persons other- wise equally placed, it would be dis- criminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the speci ed date. Both were in the same pay bracket, the average emolu-

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ment was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension ? One retir- ing a day earlier will have to be sub- ject to ceiling of Rs. 8,100 p a. and average emolument to be worked out on 36 months' salary while the other will have a ceiling of Rs. 12,000 p.a. and average emolument will be com- puted on the basis of last ten months average. The arti cial division stares into face and is unrelated to any prin- ciple and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pen- sion scheme but it is counter produc- tive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Art. 14 is wholly violated inasmuch as the pen- sion rules being statutory in char- acter, since the speci ed date, the rules accord di erential and discrim- inatory treatment to equals in the matter of commutation of pension. A 48 hours di erence in matter of re- tirement would have a traumatic ef- fect. Division is thus both arbitrary and unprincipled. Therefore the clas- si cation does not stand the test of Art.14.

Further the classi cation is wholly arbitrary because we do notnd a single acceptable or persuasive reason for this division. This arbi- trary action violated the guarantee of Art. 14. The next question is

what is the way you ?

The learned Attorney-General contended that the scheme is to be taken as a whole or rejected as a whole and the date from which it came into force is an integral and in- separable part of the scheme. The two sub-limbs of the submissions were that, (i) the Court cannot make a scheme having nancial implica- tions retroactive, and (ii) this Court cannot grant any relief to the pen- sioners who retired prior to a speci-ed date because if more persons di- vide the available cake, the residue falling to the share of each espe- cially to those who are likely to be bene ted by the scheme will be comparatively smaller and as they are not before the Court, no re- lief can be given to the pension- ers. Let us clear one misconcep- tion. The pension scheme includ- ing the liberalised scheme available to the Government employees is non- contributory in character. It was not pointed out that there is some- thing like a pension fund. It is recognised as an item of expendi- ture and it is budgeted and voted every year. At any given point of time there is no xed or predeter- mined pension fund which is divided amongst eligible pensioners. There is no arti cially created fund or reser- voir from which pensioners draw pen- sion within the limits of the fund, the share of each being extensive with the available fund. The payment of pension is a statutory liability under- taken by the Government and what- ever becomes due and payable is bud- geted for. One could have appre-

114 Maj Gen D.S. Nakara v. Union Of India 1982

ciated this line of reasoning where there is a contributory scheme and a pension fund from which alone pen- sion is disbursed. That being not the case, there is no question of pension- ers dividing the pension fund which, if more persons are admitted to the scheme, would pro rata a ect the share. Therefore, there is no question of dividing the pension fund. Pen- sion is a liability incurred and has to be provided for in the budget. Therefore, the argument of divisions of a cake, larger the number of shar- ers, smaller the share and absence of residue and therefore by augmenta- tion of bene ciaries, pro rata share is likely to be a ected and their absence making relief impermissible, is an ar- gument born of desperation, and is without merits and must be rejected as untenable.

By our approach, are we making the scheme retroactive ? The answer is emphatically in the negative. Take a government servant who retired on April 1, 1979. He would be governed by the liberalised pension scheme. By that time he had put in qualify- ing service of 35 years. His length of service is a relevant factor for com- putation of pension. Has the Gov- ernment made it retroactive, 35 years backward compared to the case of a Government servant who retired on 30th March, 1979 ? Concept of qual- ifying service takes note of length of service, and pension quantum is cor- related to qualifying service. Is it retroactive for 35 years for one and not retroactive for a person who re- tired two days earlier ? It must be remembered that pension is relatable

to qualifying service. It has correla- tion to the average emoluments and the length of service. Any liberal- isation would pro tanot be retroac- tive in the narrow sense of the term. Otherwise it is always prospective. A statute is not properly called a retroactive statute because a part of the requisites for its action is drawn from a time antecedent to its passing. (see Craies on Statute Law, sixth edi- tion, p. 387). Assuming the Govern- ment had not prescribed the speci-ed date and thereby provided that those retiring pre and post the speci-ed date would all be governed by the liberalised pension scheme, undoubt- edly, it would be both prospective and retroactive. Only the pension will have to be recomputed in the light of the formula enacted in the liberalised pension scheme and e ec- tive from the date the revised scheme comes into force. And beware that it is not a new scheme, it is only a re- vision of existing scheme. It is not a new retiral bene t. It is an upward revision of an existing bene t. If it was a wholly new concept, a new re- tiral bene t, one could have appre- ciated an argument that those who had already retired could not expect it. It could have been urged that it is an incentive to attract the fresh re- cruits. Pension is a reward for past service. It is undoubtedly a condition of service but not an incentive to at- tract new entrants because if it was to be available to new entrants only, it would be prospective at such dis- tance of thirty- ve years since its in- troduction. But it covers all those in service who entered thirty- ve years back. Pension is thus not an incen-

115

tive but a reward for past service. And a revision of an existing bene-t stands on a di erent footing than a new retiral bene t. And even in case of new retiral bene t of gratuity under the Payment of Gratuity Act, 1972 past service was taken into con- sideration. Recall at this stage the method adopted when pay-scales are revised. Revised pay-scales are in- troduced from a certain date. All existing employees are brought on to the revised scales by adopting a the- ory of tments and increments for past service. In other words, bene-t of revised scale is not limited to those who enter service subsequent to the date xed for introducing revised scales but the bene t is extended to all those in service prior to that date. This is just and fair. Now if pension as we view it, is some kind of retire- ment wages for past service, can it be denied to those who retired ear- lier, revised retirement bene ts be- ing available to future retirees only ? Therefore, there is no substance in the contention that the court by its approach would be making the scheme retroactive, because it is im- plicit in theory of wages.

That takes us to the last impor- tant contention of the learned At- torney General. It was urged that the date from which the scheme be- comes operative is an integral part of the scheme and the doctrine of sev- erability cannot be invoked. In other words, it was urged that date can- not be severed from the main object of the scheme because the Govern- ment would have never o ered the scheme unless the date was an inte-

gral part of it. Undoubtedly when an upward revision is introduced, a date from which it becomes e ective has to be provided. It is the event of re- tirement subsequent to the speci ed date which introduces discrimination in one otherwise homogeneous class of pensioners. This arbitrary selec- tion of the happening of event subse- quent to speci ed date denies equal- ity of treatment to persons belonging to the same class, some preferred and some omitted. Is this eligibility qual- i cation severable ?

It was very seriously contended, remove the event correlated to date and examine whether the scheme is workable. We nd no di culty in im- plementing the scheme omitting the event happening after the speci ed date retaining the more humane for- mula for computation of pension. It would apply to all existing pensioners and future pensioners. In the case of existing pensioners, the pension will have to be recomputed by applying the rule of average emoluments as set out in Rule 34 and introducing the slab system and the amount worked out within the oor and the ceiling.

But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. All pension- ers whenever they retired would be covered by the liberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be op- erative from the date mentioned in the scheme and would bring under its

116 Maj Gen D.S. Nakara v. Union Of India 1982

umbrella all existing pensioners and those who retired subsequent to that date. In case of pensioners who re- tired prior to the speci ed date, their pension would be computed afresh and would be payable in future com- mencing from the speci ed date. No arrears would be payable. And that would take care of the grievance of retrospectivity. In our opinion, it would make a marginal di erence in the case of past pensioners because the emoluments are not revised. The last revision of emoluments was as per the recommendation of the Third Pay commission (Raghubar Dayal Commission). If the emoluments re- main the same, the computation of average emoluments under amended Rule 34 may raise the average emol- uments, the period for averaging be- ing reduced from last 36 months to last 10 months. The slab will provide slightly higher pension and if some- one reaches the maximum the old lower ceiling will not deny him what is otherwise justly due on computa- tion. The words \who were in ser- vice on 31st March, 1979 and retiring from service on or after the date" ex- cluding the date for commencement of revision are words of limitation in- troducing the mischief and are vul- nerable as denying equality and in- troducing an arbitrary fortuitous cir- cumstance can be severed without impairing the formula. Therefore, there is absolutely no di culty in re- moving the arbitrary and discrimina- tory portion of the scheme and it can be easily severed.

There is nothing immutable about the choosing of an event as

an eligibility criteria subsequent to a speci ed date. If the event is cer- tain but its occurrence at a point of time is considered wholly irrelevant and arbitrarily selected having no rationale for selecting it and having an undesirable e ect of dividing ho- mogeneous class and of introducing the discrimination, the same can be easily severed and set aside. While examining the case under Art. 14, the approach is not: 'either take it or leave it', the approach is removal of arbitrariness and if that can be brought about by severing the mis- chievous portion the court ought to remove the discriminatory part re- taining the bene cial portion. The pensioners do not challenge the lib- eralised pension scheme. They seek the bene t of it. Their grievance is of the denial to them of the same by arbitrary introduction of words of limitation and we nd no di culty in severing and quashing the same. This approach can be legitimised on the ground that every Government servant retires. State grants upward revision of pension undoubtedly from a date. Event has occurred revision has been earned. Date is merely to avoid payment of arrears which may impose a heavy burden. If the date is wholly removed, revised pensions will have to be paid from the ac- tual date of retirement of each pen- sioner. That is impermissible. The State cannot be burdened with ar- rears commencing from the date of retirement of each pensioner. But ef- fective from the speci ed date future pension of earlier retired Govern- ment servants can be computed and paid on the analogy of tments in

117

revised pay-scales becoming prospec- tively operative. That removes the nefarious unconstitutional part and retains the bene cial portion. It does not adversely a ect future pension- ers and their presence in the petitions becomes irrelevant. But before we do so, we must look into the reasons as- signed for eligibility criteria, namely, 'in service on the speci ed date and retiring after that date'. The only reason we could nd in a davit of Shri Mathur is the following state- ment in paragraph 5 :

\The date of e ect of the im- pugned orders has been selected on the basis of relevant and valid con- siderations."

We repeatedly posed a question: what are those relevant and valid considerations and waited for the an- swer in vain. We say so because in the written submissions led on be- half of the Union of India, we nd not a single valid or relevant consid- eration much less any consideration relevant to selection of eligibility cri- teria. The tenor is \we select the date and it is unquestionable; either take it or leave it as a whole". The only submission was that the date is not severable and some submis- sions in support of it. Having ex- amined the matter on principle, let us turn to some precedents. In D.R. Nim v. Union of India(1) the appel- lant questioned his seniority which was to be determined in accordance with the provisions contained in In- dian Police Service (Regulation of Se- niority) Rules, 1954. These rules re- quired rst to ascertain the year of allotment of the person concerned for

the determination of his seniority. In doing so, the Government of India di- rected that o cers promoted to the Indian Police Service should be al- lowed the bene t of their continuous o ciation with e ect only from 19th May, 1951. The appellant challenged the order because the period of o - ciation from June 1947 to May 1951 was excluded for the purpose of x- ation of his seniority. His grievance was that there was no rationale be- hind selecting this date. After taking into consideration a davit in oppo- sition, this Court held as under : \It would be noticed that the date, May 19, 1951, to begin with had nothing to do with the nalisation of the Gra- dation List of the Indian Police Ser- vice because it was a date which had reference to the nalisation of the Gradation List for the IAS. Further this date does not seem to have much relevance to the question of avoiding the anomalous position mentioned in para 9 of the a davit reproduced above. This date was apparently chosen for the IAS because on this date the Gradation List for all the earlier persons recruited to the ser- vice had been nalised and issued in a somewhat stable stage. But why should this date be applied to the Indian Police Service has not been adequately explained. Mr. BRL Iyengar, the learned counsel for the appellant, strongly urges that selec- tion of May 19, 1951, as a cru- cial date for classifying people is ar- bitrary and irrational. We agree with him in this respect. It fur- ther appears from the a davit of Mr. D.K. Guha, Deputy Secretary to the Government of India, Min-

118 Maj Gen D.S. Nakara v. Union Of India 1982

istry of Home A airs, dated Decem- ber 9, 1966 that \the Government of India have recently decided in con- sultation with the Ministry of Law that the Ministry of Home A airs letter No. 2/32/51-AIS, dated the 25th August, 1955 will not be appli- cable to those SCS/SPS o cers, who were appointed to IAS/IPS prior to the promulgation of IAS/IPS (Regu- lation of Seniority) Rules, 1954, and the date of the issue of the above let- ter if their earlier continuous o ci- ation was approved by the Ministry of Home A airs and Union Public Service Commission". It further ap- pears that \in the case of Shri C.S. Prasad also, an IPS O cer of Bi- har, a decision has been taken to give the bene t of full continuous o cia- tion in senior posts and to revise his year of allotment accordingly." But, it is stated that \as Shri Nim was appointed to IPS on the 22nd Oc- tober 1955, i.e. after the promulga- tion of IPS (Regulation of Seniority) Rules, 1954, and after the issue of let- ter dated 25.8.1955, his case does not fall even under this category". The above statement of the case of the Government further shows that the date, May 19, 1951 was an arti cial and arbitrary date having nothing to do with the application of the rst and the second provisos to Rule 3 (3). It appears to us that under the sec- ond proviso to Rule 3 (3) the period of o ciation of a particular o cer has to be considered and approved or disapproved by the Central Govern- ment in consultation with the Com- mission considering all the relevant facts. The Central Government can- not pick out a date from a hat-and

that is what it seems to have done in this case-and say that a period prior to that date would not be deemed to be approved by the Central Govern- ment within the second proviso. The Court held that the Central Govern- ment cannot pick out a date from a hat and that is what it seems to have done in saying that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso. In case before us, the eligibility criteria for being eligible for liberalised pension scheme have been picked out from where it is di cult to gather and no rationale is discernible nor one was attempted at the hearing. The ratio of the decision would squarely apply to the facts of this case.

Similarly in Jaila Singh Anr.
v. State of Rajasthan Ors.(1), this

Court struck down as discriminatory the division of pre-1955 and post- 1955 tenants for the purpose of allot- ment of land made by the Rules un- der the Rajasthan Colonisation Act, 1954 observing that the various pro- visions indicate that the pre-1955 and post-1955 tenants stand on the same footing and therefore do not form di erent classes and hence the division was held to be based on wholly irrelevant consideration. The court further observed that it is di - cult to appreciate how it would make any di erence from the point of view of allotment of land, whether a ten- ant has been in occupation for 16 years or 18 or 20 years and why dif- ferentiation should be made with ref- erence to the date when Rajasthan Tenancy Act came into force. This

119

division for the purpose of allotment of land with reference to certain date was considered both arbitrary and discriminatory on the ground that it was wholly unrelated to the objects sought to be achieved.

As against this the learned Attorney-General invited our atten- tion to Union of India Anr. v. M/s Parameswaran Match Works etc.(2) By a noti cation dated July 21, 1967, bene t of a concessional rate of duty was made available if a manufacturer of matches made a declaration that the total clearance of matches from a factory would not exceed 75 million during a nancial year. As framed the noti cation extended the bene t to manufacturers with higher capac- ity to avail of the concessional rate of duty by ling a declaration as vi- sualised in the proviso to the noti - cation by restricting their clearance to 75 million matches. This noti - cation was amended on September 4, 1967 with a view to giving bonade small manufacturers, whose to- tal clearance was not estimated to be in excess of 75 million matches, the bene t of concessional rate of duty prescribed under noti cation dated July 21, 1967. The respondent in the case applied for a licence for man- ufacturing matches on September 5, 1967, that is, a day after the date on which amended noti cation was is- sued and led a declaration that the estimated manufacture for the nan- cial year would not exceed 75 million matches, but this was rejected. In a writ petition led by the respon- dent, the High Court held that the classi cation was unreasonable inas-

much as the xation of the date for making a declaration had no nexus with the object of the Act. In the appeal by the Union of India, this Court held that the concessional rate of duty was intended for small bonade units who were in the eld when the noti cation dated September 4, 1967 was issued. The concessional rate of duty was not intended to ben- e t the large units which had split up into smaller units to earn the con- cession. With reference to selection of the date this Court observed as under : \The choice of a date as a basis for classi cation cannot al- ways be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the cir- cumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of xing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide of the reasonable mark." In reaching this conclusion the Court relied on Louisville Gas Co. v. Al- abama Power Co. (1) This decision is not an authority for the proposition that whenever a date is chosen, or an eligibility criteria which divides a class, the purpose of choice unrelated to the objects sought to be achieved must be accepted as valid. In fact it is made clear in the decision itself that even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsi- cal, the choice of the legislature may be accepted. Therefore, the choice of the date 203

120 Maj Gen D.S. Nakara v. Union Of India 1982

cannot be wholly divorced from the objects sought to be achieved by the impugned action. In other words, if the choice is shown to be thoroughly arbitrary and introduces discrimination violative of Art. 14, the date can be struck down. What facts in uenced the Court's decision in that case for upholding the choice of the date are worth- recalling. The Court held that the object of grant- ing the concessional rate of duty was to protect the smaller units in the in- dustry from the competition by the larger ones and that object would have been frustrated, if, by adopt- ing the device of fragmentation, the larger units could become the ul- timate bene ciaries of the bounty. This was the weighty consideration which prompted the court to uphold the date. The learned Attorney Gen- eral next referred to D.C. Gouse and Co. etc. v. State of Kerala Anr. etc.

(1) This Court while repelling the contention that the choice of April 1, 1973 as the date of imposition of the building tax is discriminatory with reference to Art. 14 of the Consti- tution, approved the ratio in the case of M/s. Parameswaran Match Works etc. supra. Even while reaching this conclusion the Court observed that it is not shown how it could be said that the date (April 1, 1973) for the levy of the tax was wide of the reasonable mark. What appealed to the Court was that earlier an attempt was made to impose the building tax with e ect from March 2, 1961 under the Kerala Building Tax Act, 1961 but the Act was nally struck down as unconsti- tutional by this Court as per its de- cision dated August 13, 1968. While

delivering the budget speech, at the time of introduction of the 1970-71 budget, the intention to introduce a fresh Bill for the levy of tax was made clear. The Bill was published in June 73 in which it was made clear that the Act would be brought into force from April 1, 1970. After recalling the various stages through which the Bill passed before being enacted as Act, this Court held that the choice of date April 1, 1973 was not wide of the reasonable mark. The de- cision proceeds on the facts of the case. But the principle that when a certain date or eligibility criteria is selected with reference to legisla- tive or executive measure which has the pernicious tendency of dividing an otherwise homogeneous class and the choice of bene ciaries of the leg- islative/executive action becomes se- lective, the division or classi cation made by choice of date or eligibil- ity criteria must have some relation to the objects sought to be achieved. And apart from the rst test that the division must be referable to some ra- tional principle, if the choice of the date or classi cation is wholly un- related to the objects sought to be achieved, it cannot be upheld on the specious plea that was the choice of the Legislature. Now if the choice of date is arbitrary, eligibility crite- ria is unrelated to the object sought to be achieved and has the perni- cious tendency of dividing an oth- erwise homogeneous class, the ques- tion is whether the liberalised pen- sion scheme must wholly fail or that the pernicious part can be severed, cautioning itself that this Court does not legislate but merely interprets

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keeping in view the underlying inten- tion and the object, the impugned measure seeks to subserve ? Even though it is not possible to oversim- plify the issue, let us read the im- pugned memoranda deleting the un- constitutional part. Omitting it, the memoranda will read like this :

\At present, pension is calculated at the rate of 1/80th of average emol- uments for each completed year of service and is subject to a maximum of 33/80 of average emoluments and is further restricted to a monetary limit of Rs. 1,000/- per month. The President is, now, pleased to decide that with e ect from 31st March, 1979 the amount of pension shall be determined in accordance with the following slabs."

If from the impugned memoranda the event of being in service and re- tiring subsequent to speci ed date is severed, all pensioners would be governed by the liberalised pension scheme. The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the Third Pay Commission but becoming op- erative from the speci ed date. It does therefore appear that the read- ing down of impugned memoranda by severing the objectionable portion would not render the liberalised pen- sion scheme vague, unenforceable or unworkable. In reading down the memoranda, is this Court legislat- ing ? Of course 'not'. When we delete basis of classi cation as vi- olative of Art. 14, we merely set

at naught the unconstitutional por- tion retaining the constitutional por- tion. We may now deal with the last submission of the learned Attor- ney General on the point. Said the learned Attorney- General that prin- ciple of severability cannot be ap- plied to augment the class and to adopt his words 'severance always cuts down the scope, never enlarges it'. We are not sure whether there is any principle which inhibits the Court from striking down an uncon- stitutional part of a legislative ac- tion which may have the tendency to enlarge the width and coverage of the measure. Whenever classi cation is held to be impermissible and the measure can be retained by removing the unconstitutional portion of clas- si cation, by striking down words of limitation, the resultant e ect may be of enlarging the class. In such a situation, the Court can strike down the words of limitation in an enact- ment. That is what is called read- ing down the measure. We know of no principle that 'severance' lim- its the scope of legislation and can never enlarge it. To refer to the Jaila Singh's case (supra), when for the bene t of allotment of land the ar- ti cial division between pre-1955 and post-1955 tenant was struck down by this Court, the class of bene ciaries was enlarged and the cake in the form of available land was a xed quan- tum and its distribution amongst the larger class would protanot reduce the quantum to each bene ciary in- cluded in the class. Similarly when this Court in Randhir Singh's case (supra) held that the principle of 'equal pay for equal work' may be

122 Maj Gen D.S. Nakara v. Union Of India 1982

properly applied to cases of unequal pay based on no classi cation or ir- rational classi cation it enlarged the class of bene ciaries. Therefore, the principle of 'severance' for taking out the unconstitutional provision from an otherwise constitutional measure has been well recognised. It would be just and proper that the provi- sion in the memoranda while retain- ing the date for its implementation, but providing 'that in respect of Gov- ernment servants who were in service on the 31st March, 1979 but retir- ing from service in or after that date' can be legally and validly severed and must be struck down. The date is retained without quali cation as the e ective date for implementation of scheme, it being made abundantly clear that in respect of all pension- ers governed by 1972 Rules, the pen- sion of each may be recomputed as on April 1, 1979 and future payments be made in accordance with fresh com- putation under the liberalised pen- sion scheme as enacted in the im- pugned memoranda. No arrears for the period prior to 31st March, 1979 in accordance with revised computa- tion need be paid.

In this context the last submis- sion of the learned Attorney Gen- eral was that as the pension is al- ways correlated to the date of retire- ment, the Court cannot change the date of retirement, and impose fresh commutation bene t. We are doing nothing of this kind. The apprehen- sion is wholly unfounded. The date of retirement of each employee re- mains as it is. The average emolu- ments have to be worked out keep-

ing in view the emoluments drawn by him before retirement but in ac- cordance with the principles of the liberalised pension scheme. The two features which make the liberalised pension scheme more attractive is the rede ning of average emoluments in Rule 34, and introduction of slab sys- tem simultaneously raising the ceil- ing. Within these parameters, the pension will have to be recomputed with e ect from the date from which the liberalised pension scheme came into force i.e. March 31, 1979. There is no question of fresh commutation of pension of the pensioners who re- tired prior to 31st March, 1979 and have already availed of the bene t of commutation. It is not open to them to get that bene t at this late date because commutation has to be availed of within speci ed time limit from the date of actual retirement. May be some marginal retirees may earn the bene t. That is inevitable. To say that by our approach we are restructuring the liberalised pension scheme, is to ignore the constitu- tional mandate. Similarly, the court is not conferring bene ts by this ap- proach, the court only removes the il- legitimate classi cation and after its removal the law takes its own course.

But in this context the learned Attorney submitted the following quotation which appears to have been extracted from a decision of American Court, citation of which was not available. The quotation may be extracted from the written submission. It reads as under:

\It remains to enquire whether this plea that Congress would have

123

enacted the legislation and the Act being limited to employees engaged in commerce within the district of Columbia and the Territory. If we are satis ed that it would not or that the matter is in such doubt that we are unable to say what Congress would have done omitting the uncon- stitutional features then the statute must fail."

We entertain no such apprehen- sion. The Executive with parliamen- tary mandate liberalised the pension scheme. It is implicit in liberal- ising the scheme that the deed to grant little higher rate of pension to the pensioners was considered em- inently just. One could have un- derstood persons in the higher pay bracket being excluded from the ben- e ts of the scheme because it would have meant that those in higher pay bracket could fend for themselves. Such is not the exclusion. The ex- clusion is of a whole class of peo- ple who retire before a certain date. Parliament would not have hesitated to extend the bene t otherwise con- sidered eminently just, and this be- comes clearly discernible from page 35 of 9th Report of Committee on Petitions (Sixth Lok Sabha) April, 1976. While examining their repre- sentation for better pensionary ben- e t, the Committee concluded as un- der:

\The Committee are of the view that Government owe a moral re- sponsibility to provide adequate re- lief to its retired employees including pre 1.1.1973 pensioners, whose actual value of pensions has been eroded by the phenomenal rise in the prices of

essential commodities. In view of the present economic conditions in India and constant rise in the cost of liv- ing due to in ation, it is all the more important even from purely humani- tarian considerations if not from the stand point of fairness and justice, to protect the actual value of their mea- gre pensions to enable the pensioners to live in their declining years with dignity and in reasonable comfort."

Therefore, we are not inclined to share the apprehension voiced by the learned Attorney that if we strike down the unconstitutional part, the parliament would not have enacted the measure. Our approach may have a parliamentary avour to sen- sitive noses.

The nancial implication in such matters has some relevance. How- ever in this connection, we want to steer clear of a misconception. There is no pension fund as it is found either in contributory pen- sion schemes administered in foreign countries or as in Insurance-linked pensions. Non- contributory pen- sions under 1972 rules is a State obli- gation. It is an item of expenditure voted year to pear depending upon the number of pensioners and the es- timated expenditure. Now when the liberalised pension scheme was intro- duced, we would justi ably assume that the Government servants would retire from the next day of the com- ing into operation of the scheme and the burden will have to be computed as imposed by the liberalised scheme. Further Government has been grant- ing since nearly a decade temporary increases from time to time to pen-

124 Maj Gen D.S. Nakara v. Union Of India 1982

sioners. Therefore, the di erence will be marginal. Further, let it not be forgotten that the old pensioners are on the way out and their num- ber is fast decreasing. While exam- ining the nancial implication, this Court is only concerned with the ad- ditional liability that may be im- posed by bringing in pensioners who retired prior to April 1, 1979 within the fold of liberalised pension scheme but e ective subsequent to the spec- i ed date. That it is a dwindling number is indisputable. And again the large bulk comprises pensioners from lower echelons of service such as Peons, L.D.C., U.D.C., Assistant etc. In a chart submitted to us, the Union of India has worked out the pension to the pensioners who have retired prior to the speci ed date and the comparative advantage, if they are brought within the purview of the liberalised pension scheme. The dif- ference up to the level of Assistant or even Section O cer is marginal keeping in view that the old pension- ers are getting temporary increases. Amongst the higher o cers, there will be some di erence because the ceiling is raised and that would in- troduce the di erence. It is however necessary to refer to one gure re- lied upon by respondents. It was said that if pensioners who retired prior to 31st March, 1979 are brought within the purview of the liberalised pension scheme, Rs. 233 crores would be re- quired for fresh commutation. The apparent fallacy in the submission is that if the bene t of commutation is already availed of, it cannot and need not be reopened. And availabil- ity of other bene ts is hardly a rel-

evant factor because pension is ad- missible to all retirees. The gures submitted are thus neither frighten- ing nor the liability is supposed to be staggering which would de ect us from going to the logical end of con- stitutional mandate. Even according to the most liberal estimate, the av- erage yearly increase is worked out to be Rs. 51 crores but that as- sumes that every pensioner has sur- vived till date and will continue to survive. Therefore, we are satis-ed that the increased liability con- sequent upon this judgment is not too high to be unbearable or such as would have detracted the Govern- ment from covering the old pension- ers under the scheme. Locus standi of third petitioner was questioned. Petitioner No. 3 is a Society reg- istered under the Societies Registra- tion Act of 1860. It is a non-political non-pro t and voluntary organisa- tion. Its members consist of pub- lic spirited citizens who have taken up the cause of ventilating legitimate public problems. This Society re- ceived a large number of representa- tions from old pensioners, individu- ally unable to undertake the journey through labyrinths of legal judicial process, costly and protracted, and. therefore, approached petitioner No. 3 which espoused their cause Objects for which the third petitioner-Society was formed were not questioned. The majority decision of this Court in S.P. Gupta v. Union of India(1) rules that any member of the public having su cient interest can maintain an ac- tion for judicial redress for public in- jury arising from breach of public duty or from violation of some pro-

125

vision of the Constitution or the law and seek enforcement of such public duty and observance of such consti- tutional or legal provision. Third pe- titioner seeks to enforce rights that may be available to a large number of old in rm retirees. Therefore, its locus standi is unquestionable. But it is a point of academic important be- cause locus standi of petitioners Nos. 1 and 2 was never questioned.

That is the end of the jour- ney. With the expanding horizons of socio-economic justice, the social- ist Republic and welfare State which we endeavour to set up and largely in uenced by the fact that the old men who retired when emoluments were comparatively low and are ex- posed to vagaries of continuously ris- ing prices, the falling value of the rupee consequent upon in ationary inputs, we are satis ed that by in- troducing an arbitrary eligibility cri- teria: 'being in service and retir- ing subsequent to the speci ed date' for being eligible for the liberalised pension scheme and thereby divid- ing a homogeneous class, the classi-cation being not based on any dis- cernible rational principle and hav- ing been found wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thor- oughly arbitrary, we are of the view that the eligibility for liberalised pen- sion scheme of being in service on the speci ed date and retiring sub-

sequent to that date' in impugned memoranda, Exhibits P-I and P-2, violates Art. 14 and is unconstitu- tional and is struck down. Both the memoranda shall be enforced and im- plemented as read down as under: In other words, in Exhibit P-1, the words: \that in respect of the Gov- ernment servants who were in ser- vice on the 31st March, 1979 and re- tiring from service on or after that date"and in Exhibit P-2, the words:

\the new rates of pension are ef- fective from 1st April 1979 and will be applicable to all service o cers who became/become non-e ective on or after that date."

are unconstitutional and are struck down with this speci cation that the date mentioned therein will be relevant as being one from which the liberalised pension scheme be- comes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement. Omitting the unconstitutional part it is de- clared that all pensioners governed by the 1972 Rules and Army Pen- sion Regulations shall be entitled to pension as computed under the liber- alised pension scheme from the spec- i ed date, irrespective of the date of retirement. Arrears of pension prior to the speci ed date as per fresh com- putation is not admissible. Let a writ to that e ect be issued. But in the circumstances of the case, there will be no order as to costs.

H.L.C. Petition allowed.

126 Maj Gen D.S. Nakara v. Union Of India 1982
HEADNOTE:
1983 SCALE (1)497
1983 SCR (3) 60 1983 SCC (3)
CITATION:
MISRA, R.B. (J)
ERADI, V. BALAKRISHNA (J)
REDDY, O. CHINNAPPA (J)
CHANDRACHUD, Y.V. ((CJ)
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
BENCH:
UNION OF INDIA & OTHERS
RESPONDENT:
v.
General Reserve Engineering Force. (GREF)-Whether it is 'force' within the meaning of sub-ss. (1) and (4) of s. 4 of Army Act,
1950-Whether members of GREF DATE OF JUDGMENT06/05/1983are members of 'Armed Forces'
within the meaning of Art. 33 of Constitution- Whether S.R. Os. 329 and 330 applying provisions of Army Act, 1950 and Army Rules 1954 to members of GREF in exercise of power under sub-ss. (1) and (4) of s. 4 of Army Act, 1959 ultra vires Art. 33 of Constitution-Whether ap- plication of Central Civil Services (Classi cation, Control and Appeal) Rules, 1965 as also provisions of Army Act and Army Rules to mem- bers of GREF violative of Art. 14 of Constitution.
R. VISWAN & OTHERS
PETITIONER:
Army Act, 1950-S. 21- Constitutional validity of-Whether saved by Art. 33.
Army Act, 1950-Sub-ss. (1) and
(4) of s. 4-'Force'- Meaning of.
ACT:
R. Viswan & Others v. Union Of India & Others on 6 May, 1983 Equivalent citations: 1983 SCR (3) 60, 1983 SCC (3) 401 Bench: Bhag- wati, P.N.
Chapter 9
Viswan v. Union Of India 1983

401

128 Viswan v. Union Of India 1983

The petitioners who belonged to the General Reserve Engineering Force (GREF) were charged under s. 63 of the Army Act, 1950 on alle- gations inter alia that they had as- sembled in front of the Chief Engi- neer and shouted slogans demand- ing release of personnel placed un- der arrest, participated in a blackag demonstration and associated themselves with an illegal associa- tion. They were tried by Court Martial in accordance with the pre- scribed procedure and, on being con- victed, were dismissed from service. The petitioners submitted that their convictions by Court Martial were il- legal and raised the following con- tentions in support of their plea: that the GREF was a civilian construction agency and not a 'force' raised and maintained under the authority of the Central Government and conse- quently, the members of GREF were not \members of Armed Forces or the Forces charged with the maintenance of public order" within the meaning of Art. 33 of the Constitution and therefore the application of s. 21 of the Army Act read with rs. 19 to 21 or the Army Rules to them was un- constitutional since it restricted their fundamental rights in a manner not permitted by the Constitution; that S.R. Os 329 and 330 which were no- ti cations having the e ect of apply- ing the provisions of the Army Act and the Army Rules to the mem- bers of the GREF were ultra vires the powers of the Central Govern- ment under sub-ss. (1) and (4) of s. 4 of the Army Act; that s. 21 of the Army Act was unconstitutional as it was not justi ed by the terms

of Art. 33 since under that Article it was Parliament alone which was entrusted with the power to deter- mine to what extent any of the fun- damental rights shall, in application to the members of the Armed Forces or Forces charged with the mainte- nance of public order, be restricted or abrogated and Parliament could not have left it to the Central Gov- ernment to determine the extent of such restriction or abrogation as was sought to be done under s. 21; that the petitioners were entitled to exer- cise their fundamental rights under cls. (a), (b) and (c) of Art. 19 (1) without any of the restrictions im- posed by rs. 19 to 21 of the Army Rules and therefore they could not be charged under s. 63 of the Army Act on the facts alleged against them; that their trial was not in accordance with law; and that the application of the provisions of the Army Act and the Army Rules to the members of GREF for purposes of discipline was discriminatory and violative of Art. 14 inasmuch as the members of the GREF were governed both by the Central Civil Services (Classi cation Control and Appeal) Rules, 1965 and the provisions of the Army Act and the Army Rules in matters of disci- pline. Dismissing the petitions,

HELD 1. (a) The functions and duties of GREF are integrally con- nected with the operational plans and requirements of the Armed Forces. There can be no doubt that without the e cient and disciplined operational role of GREF the mili- tary operations in border areas dur- ing peace as also in times of war will

129

be seriously hampered and a highly disciplined and e cient GREF is absolutely essential for supporting the operational plans and meeting the operational requirements of the Armed Forces. The members of the GREF answer the description of \members of the Armed Forces" within the meaning of Art. 33 and consequently the application of s. 21 of the Army Act to the members of GREF is protected by that Article and the fundamental rights of the members of GREF must be held to be validly restricted by s. 21 read with rs. 19 to 21 of Army Rules. The petitioners were therefore liable to be charged under s. 63 of the Army Act for the alleged violations of rs. 19 to 21 and their convictions and subse- quent dismissals must be held to be valid. [88 F-89 B]

(b) The fact that the members of the GREF are described as civil- ian employees and they have their own special rules of recruitment and are governed by the Central Civil Services (Classi cation, Control and Appeal) Rules, 1965 is not determi- native of the question whether they are members of the Armed Forces. The question whether the members of GREF can be said to be mem- bers of the Armed Forces for the pur- pose of attracting the applicability of Art. 33 must depend essentially on the character of GREF, its or- ganisational set up, its functions, the role it is called upon to play in re- lation to the Armed Forces and the depth and intimacy of its connec- tion and the extent of its integration with the Armed Forces. The history,

composition, administration, organi- sation and role of GREF clearly show that GREF is an integral part of the Armed Forces and that the members of GREF can legitimately be said to be members of the Armed Forces within the meaning of Art. 33. It is undoubtedly a departmental con- struction agency as contended on be- half of the petitioners but it is dis- tinct from other 62

construction agencies such as the Central Public Works Department in that it is a force intended primarily to support the Army in its opera- tional requirement. [87 D-H, 83 G]

Ous Kutilingal Achudan Nair and Ors. v. Union of India and Ors., [1976] 2 S.C.R. 769, referred to.

(c) The Central Government is empowered under sub-s. (1) of s. 4 of the Army Act to apply any of the provisions of that Act to any force raised or maintained in India under the authority of that Government. When the provisions of the Army Act are applied to any force under sub-s.

(1) of s. 4, the Central Government can, by noti cation issued under sub- s. (4) thereof, direct by what author- ity, the jurisdiction, powers and du- ties incident to the operation of those provisions shall be exercised or per- formed in respect of that force. The word 'force' is not de ned any where in the Army Act but sub-s. (2) of s. 4 clearly contemplates that 'force' referred to in sub-s. (1) of s. 4 must be a force organised on similar lines as the army with rank structure. There can be no doubt that GREF is a force organised on army pattern with units and sub-units and rank

130 Viswan v. Union Of India 1983

structure. It is clear from the let- ter dated June 16, 1960 addressed by the Secretary, Border Roads Devel- opment Board to the Director Gen- eral Border Roads that GREF is a force raised and maintained under the authority of the Central Gov- ernment. The Central Government therefore had the power under sub- ss. (1) and (4) of s. 4 to issue noti-cations S.R.O. 329 and S.R.O. 330 applying some of the Army Act and the Army Rules to the GREF. [82 B- H]

(d) There is no substance in the contention that applying the provi- sions of the Army Act and the Army Rules to the members of GREF for purpose of discipline is discrimina- tory and violative of Art. 14. The nature of the proceedings which may be taken under the Central Civil Services (Classi cation, Control and Appeal) Rules against an erring em- ployee is di erent from the nature of the proceedings which may be taken against him under the provi- sions of the Army Act read with Army Rules, the former being dis- ciplinary in character while the lat- ter being clearly penal. There is no overlapping between the two be- cause ss. 20 and 71 of the Army Act which deal with dismissal, re- moval or reduction in rank have not been made applicable to the mem- bers of GREF by S.R.O. 329. The respondents have positively stated in their a davit that clear and detailed administrative guidelines have been laid down for the purpose of guiding the disciplinary authority in exercis- ing its discretion whether to take ac-

tion against an employee of GREF under Central Civil Services (Classi-cation, Control and Appeal) Rules or the Army Rules and therefore it is not possible to say that the discre- tion vested in the authorities is un- guided or uncanalised. Moreover, the decision in Northern India Caterers v. Punjab on which this contention is based has been overruled in Mag- anlal Chhaganlal v. Municipal Cor- poration, Greater Bombay. In any event, the provisions of the Army Act and the Army Rules as applied to the members of GREF are protected by Art. 33 against invalidation on the ground of violation of Art. 14. [90 G-92 B] Northern India Caterers v. Punjab, [1976] 3 S.C.R. 399; and Ma- ganlal Chhaganlal v. Municipal Cor- poration, Greater Bombay, [1974] 2 S.C.C. 402, referred to. (e) The con- tention that the trial of the petition- ers was not in accordance with law was strongly resisted by the respon- dents and having regard to the aver- ments made by them on this point it is not possible to hold that the convictions of the petitioners by the Court Martial were not in accordance with law. In any event, the allegation of the petitioners in this behalf raised disputed questions of fact which it is not possible to try in a writ petition. [90 A-F] (f) The alleged disparity be- tween the Army personnel posted in GREF units and o cers and men of GREF in so far as the terms and conditions of service such as salary, allowances and rations has no real bearing on the question whether the members of GREF can be said to be members of Armed Forces. Since the members of GREF are drawn from

131

di erent sources it is possible that the terms and conditions of service of the personnel coming from the two sources may be di erent. In case it is found that there is any dispar- ity the Central Government may con- sider the advisability of taking steps for its removal. [89 C-H]

2. Section 21 of the Army Act empowers the Central Government to make rules restricting \to such ex- tent and in such manner as may be necessary" three categories of rights of any person subject to the Army Act. These rights are part of the fundamental rights under cls. (a),

(b) and (c) of Art. 19(1) and un- der the constitutional scheme, they cannot be restricted by executive ac- tion unsupported by law. But s. 21 is saved by Art. 33 which carves out an exception in so far as the ap- plicability of fundamental rights to members of the Armed Forces and the Forces charged with the mainte- nance of public order is concerned. On a plain grammatical construction of its language, Art. 33 does not re- quire that Parliament itself must by law restrict or abrogate any of the fundamental rights in order to at- tract the applicability of that Arti- cle. What it says is only this and no more, namely that Parliament may by law determine the permissible ex- tent to which any of the fundamen- tal rights may be restricted or ab- rogated in their application to the members of the Armed Forces and the Forces charged with the main- tenance of public order. Parliament itself can by enacting a law restrict or abrogate any of the fundamen-

tal rights in their application to the members of these forces as in fact it has done by enacting the Army Act But having regard to the varying re- quirement of army discipline and the need for exibility in this sensitive area it would be inexpedient to in- sist that Parliament itself should de- termine what particular restrictions should be imposed and on which fun- damental rights in the interest of proper discharge of duties by the members of these Forces and mainte- nance of discipline among them The extent of such restrictions would nec- essarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. The Con- stitution makers were obviously anx- ious that no more restrictions should be placed on the fundamental rights of the members of these Forces than are absolutely necessary for ensuring proper discharge of their duties and the maintenance of discipline among them. They therefore, decided to in- troduce a certain amount of exibil- ity in the imposition of such restric- tions and, by Art. 33, empowered Parliament to determine the permis- sible extent to which any of the fun- damental rights in their application to the members of these Forces may be restricted or abrogated so that, within such permissible extent deter- mined by Parliament, any appropri- ate authority authorised by Parlia- ment may restrict or abrogate any such fundamental rights. Parliament was therefore, within its power un- der Art. 33 to enact s.21. The extent to which restrictions may be imposed on the fundamental rights

132 Viswan v. Union Of India 1983

under cls. (a), (b) and (c) of Art. 19(1) is clearly indicated in cls. (a),

(b) and (c) of s. 21 and the Cen- tral Government is authorised to im- pose restrictions on these fundamen- tal rights only to the extent of the rights set out in cls. (a), (b) and (c) of s. 21 and no more. The guide- lines for determining as to which re- strictions should be considered nec- essary by the Central Government within the permissible extent deter- mined by Parliament is provided in Art. 33 itself, namely, that the re- strictions should be such as are nec- essary for ensuring the proper dis- charge of their duties by the members of the Armed Forces and the mainte- nance of discipline among them The Central Government has to keep this guideline before it in exercising the power of imposing restrictions under s. 21. Once the Central Govern- ment has imposed restrictions in ex- ercise of this power, the Court will not ordinarily interfere with the deci- sion of the Central Government that such restrictions are necessary be- cause that is a matter left by Par- liament exclusively to the Central Government which is best in a po- sition to know what the situation demands. Section 21 must, in the circumstances, be held to be consti- tutionally valid as being within the power conferred under Art. 33. [83 B-D, 78 -81 C] Ram Swarup v. Union of India, [1964] 5 S.C.R. 931, referred to.

JUDGMENT:

ORIGINAL JURISDICTION : W.P. (CRL) Nos. 815, 843, 632/80, 844, 5116/81, 1301-04, 1383, 3460,

4510, 4511, 4512, 4551/80 & 3861, 3848, 8317/81 and 59 of 1982. (Un- der article 32 of the Constitution of India) AND

Special Leave Petition (Crl.) Nos. 2061-65 of 1980. From the Judgment and Order dated the 19th May, 1980 of the Delhi High Court in Criminal Writ Petition Nos. 24- 27/80 & 30/80.

K.K.Venugopal, Miss Mridula Roy, D. P. Mukherjee, A.K. Ganguli & G.S. Chatterjee, with him for the Petitioners in WPs. 815, 5116, 843, 844, 8317. M. K. Ramamurthy, Ja- nardhan Sharma and P. Gaur with him for the Petitioners in WPs. 3460, 1383, 4510, 4551, 1301-04, 4511, & SLPs. 2061-65.

Miss Kailash Mehta for the Peti- tioners in WP. 3861. M.M.L. Srivas- tava for the Petitioner in WP. 3848. Chandramouli-Petitioner in person- in WP.632. Nemo in WP. 59.

R.K. Mehta for the Petitioner in WP. 4512/80. L.N. Sinha, At- torney General, M.K.Banerji, Addi- tional Solicitor General, K.M. Abdul Khader, Girish Chandra and Miss A. Subhashini with them for the Re- spondents. The Judgment of the Court was delivered by

BHAGWATI, J. These writ pe- titions raise a short but interesting question of law relating to the inter- pretation of Article 33 of the Consti- tution. The question is whether sec- tion 21 of the Army Act 1950 read with Chapter IV of the Army Rules 1954 is within the scope and ambit of Article 33 and if it is, whether Cen- tral Government Noti cations Nos.

133

SRO 329 and 330 dated 23rd Septem- ber 1960 making inter alia section 21 of the Army Act 1950 and Chapter IV of the Army Rules 1954 applica- ble to the General Reserve Engineer- ing Force are ultra vires that Arti- cle since the General Reserve Engi- neering Force is neither an Armed Force nor a Force charged with the maintenance of public order. It is a question of some importance since it a ects the fundamental rights of a large number of persons belonging to the General Reserve Engineering Force and in order to arrive at a cor- rect decision of this question, it is necessary rst of all to consider the true nature and character of the Gen- eral Reserve Engineering Force.

In or about 1960 it was felt that economic development of the North and North Eastern Border areas were greatly handicapped by meagre and inadequate communications and de- fence of these areas also required a net work of roads for e ective movement and deployment of Armed Forces. This was rendered all the more necessary because the relations of India with its neighbours were in a state of potential con ict and part of the Indian territory was under for- eign occupation and there were also hostile forces inviting some sections of the people to carry on a cam- paign for secession. The Govern- ment of India therefore, with a view to ensuring coordination and expedi- tious execution of projects designed to improve existing roads and con- struct new roads in the border ar- eas is order to improve the defence preparedness of the country, created

several posts in the Directorate Gen- eral of Works. Army Head Quarters for work connected with the devel- opment of border roads as per letter dated 9th April 1960 addressed by the Under Secretary to the Govern- ment of India, Ministry of Defence to the Chief of the Army Sta . On 18th April 1960, within a few days thereafter, the Government of India sanctioned the post of Directorate General Border Roads in the rank of Major-General in the Directorate General of Works, Army Head Quar- ters; vide letter dated 18th April 1960 addressed by the Under Sec- retary to the Government of India, Ministry of Defence to the Chief of the Army Sta . The Director Gen- eral Border Roads was placed in charge of this new organisation which started originally as part of the Di- rectorate General of Works, Army Head Quarters. But subsequently, for reasons of high policy, it was de- cided that this Organisation should not continue as part of the Direc- torate General of Works, Army Head Quarters but should be under the Board Roads Development Board set up by the Government of India as a separate self contained Authority un- der the Chairmanship of the Prime Minister with the Defence Minister as Deputy Chairman, the Financial Adviser (Defence) as Financial Ad- viser and a few other members nom- inated by the Prime Minister. The budget of the Border Roads Devel- opment Board formed part of the budget of the Ministry of Shipping and Transport but the nancial con- trol was vested in the Ministry of Finance (Defence). The Govern-

134     Viswan v. Union Of India 1983
  erational requirements of the army
ment of India by a letter dated 16th
June 1960 addressed by the Secretary whose operational planning is based
of the Border Roads Development on the availability of the units of
Board to the Director General, Bor- GREF for operational purposes. In
der Roads conveyed the sanction of fact GREF pro- vided support to the
the President to \raising and main- Army during Indo-China con ict of
tenance of a General Reserve Engi- 1962 and Indo-Pakistan con icts of
neering Force for the construction of 1965 and 1971 and also assisted the
roads in the border areas and such Army in the maintenance of public
other tasks as may be entrusted to order during the disturbances in Mi-
it by the Border Roads Development joram in 1966 and in Assam in 1980-
Board". It was directed that the 81. The personnel of GREF are pri-
General Reserve Engineering Force marily drawn from two sources and
will be \under the over all com- they consist of (I) o cers and men
mand of the Director General Bor- belonging to the Army and (2) o -
der Roads under whom will be Re- cers and men recruited, through the
gional Chief Engineers/Independent Union Public Service Commission in
Deputy Chief Engineers who will ex- case of o cers and departmentally in
ercise command Over the units of case of other ranks. A ten per cent
the Force placed under their con- quota is reserved for recruitment of
trol". The General Reserve Engi- ex-servicemen. The posting of Army
neering Force (hereinafter referred to o cers and men in GREF is done,
as GREF) was thus raised under the not on any ad hoc basis, but in accor-
authority of the Government of In- dance with a well thought out man-
dia and It was placed under the over ning policy laid down by the Gov-
all command of the Director General, ernment of India for the purpose of
Border Roads. Ever since then the maintaining at all times and at all
Director General, Border Roads, has levels the special character of GREF
always been an army o cer of the as a force designed to Meet the op-
rank of Major General and he func- erational requirement of the Army.
tions under the directions of the Bor- The manning policy laid down by the
der Roads Development Board, The Government of India in respect of of-
General Reserve Engineering Force cers is as under: G
(GREF) is organised on army pat- Posts Army GREF
tern in units and sub units with dis-
Brig/Col/Chief Engineer Gr. I &
tinctive badges of rank and a rank
II 75% 25% Lt. Col./Superintending
structure equivalent to that in the
army. The o cers and other person- Engineer 50% 50% Major/Executive
nel of GREF arc required to be in Engineer 42% 58%
uniform right from class IV to Class Capt./Asstt. Executive Engineer
20% 80% Assistant Engineer - 100%
I personnel. Though GREF is un-
doubtedly a departmental construc- So far as o cers and men re-
tion agency, it is maintained by the cruited through the Union Public
Government of India to meet the op-  

135

Service Commission or departmen- tally are concerned, all of them are given training at the GREF Centre, immediately after recruitment. The GREF Centre is organised on lines similar to an Army Regimental Cen- tre and also functions in the same manner. It is located at a place ad- joining an Engineer Regimental Cen- tre, initially at Roorkee and now at Pune, so that it can, if necessary, draw upon the resources of the En- gineer Regimental Centre. The new recruits are imparted training in the following three military disciplines:

(a)Discipline, which includes drill, marching and saluting.

(b)Combat training, including physical training i.e. standing ex- ercises, beam exercises, rope work, route marches etc., harbour deploy- ment drills, camp protection etc.

(c)Combat Engineering Train- ing, including eld engineering, han- dling of service explosives, camou-age, combat equipment, bridging,eld forti cations, wire obstacles etc.

GREF personnel are not trained in the use of arms, since the role to be performed by GREF is such that its personnel are not required to use arms and they need arms only for static protection and for use during emergency. Therefore in GREF is- sue of arms is restricted only to Army personnel and ex- servicemen apart from certain units like the Provost Units (GREF Police) which having regard to the nature of their duties, have necessarily to be armed.

The tasks which are to be car- ried out by GREF comprise not

only maintenance of strategic roads but also support for the opera- tional plans of the Army in place of Army Engineer Regiments. We shall presently elaborate these tasks in or- der to highlight the true character of GREF, but before we do so, we may point out that the role and organi- sation of GREF units have been re- viewed from time to time in consul- tation with the Army Headquarters and as a result of a major review car- ried out after the Indo-Pakistan Con-ict of 1971, the Army Headquar- ters de ned the role and organisa- tion of GREF units in a secret doc- ument dated 24th January 1973. It is clear from this document that, ac- cording to the Army Headquarters, a minimum of 17 Border Roads Task Forces and 34 Pioneer Companies are permanently required for providing engineer support to the Army and over the years, this minimum require- ment has been ful lled and 17 Border Roads Task Forces and 34 Pioneer Companies have been made perma- nent. These 17 Border Roads Task Forces and 34 Pioneer Companies have to be maintained as essential units of GREF for meeting the opera- tional requirement of the Army, even if su cient work load is not available in Border Areas at any given point of time. There are, in fact, at present 21 Border Roads Task Forces and 34 Pioneer Companies, that is, four Border Roads Task Forces more than the minimum required by the Army Authorities The requirement of these four additional Border Roads Task Forces is reviewed from time to time depending on the work-load. What should be the composition of the Bor-

136 Viswan v. Union Of India 1983

der Roads Task Forces is laid down in the document dated 24th January 1973 and this document also sets out the tasks to be carried out by the Border Roads Task Forces which may be brie y summarised as follows: (a) Maintenance of line of communica- tion in rear areas of the theatre of op- erations including roads constructed by the Border Roads and roads main- tained by CPWD, State PWD and MES.

(b)Improvement and mainte- nance of operational roads and tracks constructed by combat engineers;

(c)Construction and mainte- nance of AICs and helipads; (d) Im- provement and repairs to air elds;

(e)Construction of accommoda- tion and all allied facilities for main- tenance areas required for sustaining operations;

(f)Construction of defence works and obstacles; and (g) Water sup- ply in di cult terrain and deserts. These tasks are required to be carried out by the Border Roads Task Forces during operations with a view to providing engineering support to the army in its operational plans. The Border Roads Task Forces have to perform these tasks not only within the country up to the border but also beyond the border up to the extent of advance into enemy's territory. Even during peace time the Border Roads Task Forces have to be suitably po- sitioned in the likely area of opera- tions so that they can, in the event of hostilities, be quickly deployed on their operational tasks. The Border Roads Tasks Forces alongwith the Pi-

oneer Companies attached to them are also included in the Order of Bat- tle of the Army so that the sup- port of these units to the Army is guaranteed and can be requisitioned at any time. These units of GREF are further sub-allotted to the lower army formations such as Command, Corps and Division and they ap- pear on the Order of Battle of these formations. Their primary function is to carry out works projected by the General Sta , Army Headquar- ters to meet the operational require- ments and these works, include, inter alia, construction and maintenance of roads operational tracks, air elds, ditch-cum-bund. (water obstacles on the border) and eld forti cations like bunkers re trenches and Pill Boxes. If after meeting the require- ments of the General Sta , Army Headquarters, there is spare capacity available with these units of GREF, they undertake construction work on behalf of other ministries or depart- ments, though even there, preference is given to strategic and other roads in sensitive border areas. The funds allocated for the Border Roads Or- ganisation are non- plan funds meant exclusively to meet the requirements of the General Sta , Army Head- quarters and they cannot be used for carrying out the works of other ministries or departments. When works are undertaken by GREF units on behalf of other ministries or de- partments, they are treated as works on agency basis and, where appli- cable, agency charges are collected by the Border Roads Organisation from the ministries or departments whose work is carried out by them.

137

GREF units undertake, as far as pos- sible, only those tasks which are sim- ilar in nature to the tasks for which they are primarily designed to meet Army requirements. It is apparent from the further a davit of Lt. Col. S.S. Cheema that the major portion of the work carried out by GREF units consists of tasks entrusted by the General Sta , Army Headquar- ters and the tasks carried out on agency basis on behalf of other min- istries or departments are compara- tively of much lesser value. In fact, until 1966 no work on agency basis was undertaken by GREF units and during the period 1967 to 1970 less than 2 percent of the total work was executed by GREF units for other ministries or departments. Even dur- ing the years 1970-71 to 1980-81, the percentage of work carried out by GREF units on behalf of other min- istries of departments did not on an average exceed 15 per cent of the to- tal work. The gures for the year 1980-81 also reveal the same pattern. During 1981-82 the work executed by GREF units for General Sta , Army Headquarters consisted of construc- tion and maintenance of 12865 kms. of roads out of the funds of the Bor- der Roads Organisation and 310 kms. of ditch-cum-bunds out of funds pro- vided as the Defence Ministry while the agency work entrusted by the Ministry of Shipping and Transport did not cover more than 519 km. of strategic roads, 216 kms. of sensi- tive broader area roads and 376 kms. of National Highways in border ar- eas and the agency work entrusted by other ministries was limited only to 702 kms. of roads. It will thus be

seen that the major part of the work executed by GREF units consists of tasks entrusted by the General Sta , Army Headquarters and only a small percentage of work is being done on behalf of other ministries or depart- ments when spare capacity is avail- able.

So far as the personnel of GREF are concerned, they are partly drawn from the Army and partly by di- rect recruitment. Army personnel are posted in GREF according to a deliberate and carefully planned manning policy evolved with a view to ensuring the special character of GREF as a force intended to support the Army in its operational require- ments. The posting of Army person- nel in GREF units is in fact regarded as normal regimental posting and does not entitle the Army personnel so posted to any deputation or other allowance and it is equated with sim- ilar posting in the Army for the pur- pose of promotion, career planning, etc. The tenure of Army personnel posted in GREF units is treated as normal Regimental Duty and such Army personnel continue to be sub- ject to the provisions of the Army Act 1950 and the Army Rules 1954 whilst in GREF. But quite apart from the Army personnel who form an important segment of GREF, even the directly recruited personnel who do not come from the Army are sub- jected to strict Army discipline hav- ing regard to the special character of GREF and the highly important role it is called upon to play in support of the Army in its operational require- ments. Since the capacity and e -

138 Viswan v. Union Of India 1983

ciency of GREF units in the event of outbreak of hostilities depends on their all time capacity and e ciency they are subjected to rigorous dis- cipline even during peace time, be- cause it is elementary that they can- not be expected suddenly to rise to the occasion and provide necessary support to the Army during mili- tary operations unless they are prop- erly disciplined and in t condition at all times so as to be prepared for any eventuality. The Government of India has in exercise of the power conferred upon it by sub- sections

(1) and (4) of Section 4 of Army Act 1950 issued a Noti cation bear- ing SRO 329 dated 23rd September 1960 applying to GREF all the provi- sions of that Act with the exception of those shown in Schedule A, sub- ject to the modi cations set forth in Schedule B and directing that the of-cers mentioned in the rst column of Schedule C shall exercise or per- form, in respect of members of the said Force under their command, the jurisdiction, powers and duties inci- dent to the operation of that Act speci ed in the second column of Schedule C. This Noti cation makes various provisions of Army Act 1950 applicable to GREF and amongst them is Section 21 which provides:

Subject to the provisions of any law for the time being in force re- lating to the regular Army or to any branch thereof, the Central Gov- ernment may, by noti cation, make rules restricting to such extent and in such manner as may be necessary the right of any person subject to this Act:-

(a)to be a member of, or to be associated in any way with, any trade union or labour union or any class of trade of labour unions, or and soci- ety, institution or association or any class of institution or associations;

(b)to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes; (c) to communicate with the press or to publish or cause to be published any book, letter or other documents.

The other sections which are made applicable deal with special privileges, o ences, punishments, pe- nal deductions, arrest and proceed- ings before trial, Court Martial and other incidental matters. These sec- tion which are made applicable are primarily intended to impose strict discipline on the members of GREF the same kind of discipline which is required to be observed by the reg- ular Army personnel. The Govern- ment of India has also in exercise of the powers of conferred by Section 21, sub-section (4) of Section 102 and section 191 of the Army Act 1950 issued another Noti cation bearing SRO 330 on the same day, namely, 23rd September 1960, directing that the Army Rules 1954 as amended from time to time shall, with the ex- ception of Rules 7 to 18, 168, 172 to 176, 190 and 191, be deemed to be Rules made under the Army Act 1950 as applied to GREF. Rules 19, 20 and 21 of the Army Rules 1954 are material for the purpose of the present writ petitions and they pro- vide inter alia as follows

139

19. Unauthorised organisations- No person subject to the Act shall, without the express sanction of the Central Government:-

(i)take o cial cognizance of, or assist or take any active part in, any society, institution or organisation not recognised as part of the Armed Forces of the Union; unless it be of

arecreational or religious nature in which case prior sanction of the su- perior o cer shall be obtained;

(ii)be a member of, or be asso- ciated in any way with, any trade union or labour union, or any class of trade or labour unions.

20. Political and non-military activities-(1) No person subject to the Act shall attend, address, or take part in any meeting or demonstration held for a party or any political pur- poses, or belong to join or subscribe in the aid of, any political association or movement.

(2) No person subject to the Act shall issue an address to electors or in any other manner publicly announce himself of allow himself to be pub- licly announced as a candidate or as a prospective candidate for election to Parliament, the legislature of a State, or a local authority, or any other pub- lic body or act as a member of a can- didate's election committee or in any way actively promote or prosecute a candidate's interests.

21. Communications to the Press, Lectures, etc-No person sub- ject to the Act shall.-

(i) publish in any from whatever or communicate directly or indirectly to the Press any matter in relation

to a political question or on a service subject or containing any service in- formation, or publish or cause to be published any book or letter or arti- cle or other document on such ques- tion or matter or containing such in- formation without the prior sanction of the Central Government, or any o cer speci ed by the Central Gov- ernment in this behalf; or

(ii) deliver a lecture or wireless address, on a matter relating to a po- litical question or on a service sub- ject or containing any information or views on any service subject with- out the prior sanction of the Central Government or any o cer speci ed by the Central Government in this behalf.

These rules obviously owe their genesis to Section 21 and they im- pose restrictions on the fundamental rights of members of GREF. Since the Army Act 1950 and Army Rules 1954 are made applicable by virtue of SRO Nos. 329 and 330 dated 23rd September, 1960, GREF personnel when recruited, are required to ac- cept certain terms and conditions of appointment which include inter alia the following:

5 (iv): You will be governed by the provisions of Central Civil Ser- vice (Classi cation, Control and Ap- peal) Rules, 1965, as amended from time to time. Notwithstanding the above, you will be further subject to certain provisions of the Army Act, 1950, and Rules made thereunder, as laid down in SROs. 329 and 330 of 1960, for purposes of discipline. It will be open to the appropriate dis- ciplinary authority under the Army

140 Viswan v. Union Of India 1983

Act 1950 to proceed under its provi- sions wherever it considers it expedi- ent or necessary to do so.

5 (v): You will be required to serve anywhere in India or outside In- dia and when so called upon by the Government or the appointing au- thority or your superior o cer, you shall proceed on eld service. 5 (vi): You shall, if required, be liable to serve in any Defence Service or post connected with the defence of India.

5 (xi): On your appointment, you will be required to wear the pre- scribed uniform while on duty, abide by such rules and instructions issued by your superior authority regard- ing discipline, turnout, undergo such training and take such departmen- tal test as the Government may pre- scribe."

The result is that the directly recruited GREF personnel are gov- erned by the provisions of Central Civil Service (Classi cation, Control and Appeal) Rules 1965 as amended from time to time but for purposes of discipline, they are subject to cer- tain provisions of the Army Act 1950 and the Army Rules 1954 as laid down in SROs 329 and 330 dated 23rd September 1960.

The material facts in all the writ petitions which are being disposed of by this Judgment are similar and hence it is not necessary to set out separately the facts of each writ pe- tition. It will su ce to set out the facts of writ petition No. 815 of 1980 which was tried as the main writ petition and whatever we say in re- gard to the facts of this writ peti-

tion must apply equally in regard to the other writ petitions. The peti- tioners in writ petition No. 815 of 1980 are 24 in number and at all ma- terial times they were members of GREF. Out of them, petitioner Nos. 1 and 24 were deserters from service and warrants were issued for their ar- rest under the provisions of the Army Act 1950 but the Police Authorities were not able to apprehend them. So far as petitioners Nos. 2 to 23 are concerned, they were charged before the Court Martial for o ences un- der section 63 of the Army Act 1950 in that they alongwith some other GREF personnel assembled in front of HQ Chief Engineer (Project) Var- tak shouting slogans and demanding release of HQ CE (P) Vartak per- sonnel placed under arrest, removed their belts and threw them on the ground in the vicinity of OC's O ce, participated in a black ag demon- stration and failed to fall in line though ordered to do so by Brig. Go- sain, Chief Engineer Project, Vartak and also associated themselves with an illegal association called \All In- dia Border Roads Employees Asso- ciation". These 22 petitioners were tried by the Court Martial in ac- cordance with the procedure pre- scribed by the Army Act 1950 and the Army Rules 1954 as applica- ble to the members of GREF and on being convicted, they were dis- missed from service. The petitioners thereupon preferred writ petition No. 815 of 1980 challenging the validity of SROs. 329 and 330 dated 23rd September 1960 since these Noti ca- tions had the e ect of applying the provisions of the Army Act 1950 and

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the Army Rules 1954 to the members of GREF and restricting their funda- mental rights. The petitioners con- tended that GREF was not a Force raised and maintained under the au- thority of the Central Government and SROs. 329 and 330 dated 23rd September 1960 were ultra vires the powers of the Central Government under sub-sections (1) and (4) of Sec- tion 4 of the Army Act 1950. The petitioners also urged that in any event the application of Section 21 of the Army Act 1950 read with Rules 19 to 21 of the Army Rules 1954 to the members of GREF was un- constitutional since it restricted the fundamental rights of the members of GREF in a manner not permit- ted by the Constitution and such re- striction of the fundamental rights was not protected by Article 33, be- cause the members of GREF was not \members of the Armed Forces or the Forces charged with the maintenance of public order" within the mean- ing of that Article. There was also one other contention advanced on be- half of the petitioners which, if well founded would render it unnecessary to examine whether GREF was a Force raised and maintained under the authority of the Central Gov- ernment and the members of GREF were members of the Armed Forces or the Forces charged with the main- tenance of public order and that con- tention was that Section 21 of the Army Act 1950 was in any event not justi ed by the terms of Arti- cle 33, since under that Article it was Parliament alone which was en- trusted with the power to determine to what extent any of the fundamen-

tal rights shall, in application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abro- gated so as to ensure the proper dis- charge of their duties and the main- tenance of discipline amongst them and Parliament could not leave it to the Central Government to deter- mine the extent of such restriction or abrogation as was sought to be done under- Section 21. Section 21 was therefore, according to the pe- titioners, unconstitutional and void and alongwith Section 21 must fall Rules 19 to 21 of the Army Rules 1954. The petitioners contended that in the circumstances they were en- titled to exercise their fundamental rights under Clauses (a), (b) and (c) of Art. 19 (1) without any of the re- striction imposed by Rules 19 to 21 of the Army Rules 1954 and if that be so, they could not be charged un- der section 63 of the Army Act 1950 on the facts alleged against them and their convictions by the Court Mar- tial were illegal and void and con- sequently they continued in service of GREF. The self same contentions were repeated on behalf on the pe- titioners in the other writ petitions. The respondents disputed the valid- ity of these contentions and submit- ted that GREF was a Force raised and maintained under the authority of the Central Government and hav- ing regard to the special character of GREF and the role which it was re- quired to play in support of the Army operations, the members of GREF could legitimately be regarded as members of the Armed Forces within the meaning of Art. 33 and the Cen-

142 Viswan v. Union Of India 1983

tral Government was therefore enti- tled to issue SROs. 329 and 330 dated 23rd September 1960 making the provisions of the Army Act 1950 and the Army Rules 1954 and partic- ularly Section 21 and Rules 19 to 21 applicable to the members of GREF. The respondents defended the valid- ity of Section 21 and contended that it was a proper exercise of power by Parliament under Art. 33 determin- ing the extent to which the Funda- mental Rights may, in their applica- tion to the members of the Armed Forces including GREF, be restricted or abrogated and it was not outside the power conferred on Parliament by that article and, read with Rules 19 to 21, it validly restricted the Fun- damental Rights of the members of GREF. The respondents submitted that in the circumstances the peti- tioners were rightly charged under Section 63 of the Army Act 1950 and their convictions by the Court Mar- tial and subsequent dismissals were valid. The respondents thus sought to sustain the validity of the action taken by the authorities against the petitioners.

Now the rst question that arises for consideration on these rival con- tentions is as to the constitutional va- lidity of Section 21. That section em- powers the Central Government by noti cation to make rules restricting \to such extent and in such man- ner as may be necessary" three cat- egories of rights of any person sub- ject to the Army Act 1950, namely,

(a) the right to be a member of or to be associated in any way with, any trade union or labour union, or

any class of trade or labour unions, or any society, institution or associ- ation or any class of institution or associations; (b) the right to attend or address any meeting or to take part in any demonstration organised by any body of persons for any po- litical or other purposes; and (c)the rights to communicate with the press or to publish or cause to be published any book, letter or other document. These rights which are permitted to be restricted are part of the Funda- mental Rights under clauses (a), (b) and (c) of article 19(1) and under the constitutional scheme, they can- not be restricted by executive action unsupported by law. If any restric- tions are to be imposed, that can be done only by law and such law must satisfy the requirements of clause (2),

(3) or (4) of article 19 according as the right restricted falls within clause (a), (b) or (c) of article 19(1). The restrictions imposed must be reason- able and in case of right under clause

(a) of article 19(1), they must be \in the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to con- tempt of court, defamation or in- citement to an o ence" as provided in clause (2) of article 19, in case of right under clause (b) of article 19(1), they must be \in the interest of the sovereignty and integrity of In- dia or public order" as provided in clause (3) of article 19 and in case of right under clause (c) of article 19(1), they must be \in the inter- est of the sovereignty and integrity of India or public order or morality"

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as provided in clause (4) of article 19. Then only they would be valid; otherwise they would be unconstitu- tional and the law imposing them would be void. Now here we nd that Section 21 does not itself impose any restrictions on the three categories of rights there speci ed. If Section 21 had itself imposed any such re- strictions, it would have become nec- essary to examine whether such re- strictions are justi ed under clause (2), (3) or (4) of article 19, as may be applicable. But Section 21 leaves it to the Central Government to im- pose restrictions on these three cate- gories of rights without laying down any guidelines or indicating any lim- itations which would ensure that the restrictions imposed by the Central Government are in conformity with clause (2), (3) or (4) of article 19, whichever be applicable. It confers power on the Central Government in very wide terms by providing that the Central Government may impose restrictions on these three categories of rights \to such extent and in such manner as may be necessary." The Central Government is constituted the sole judge of what restrictions are considered necessary and the Cen- tral Government may, in terms of the power conferred upon it, impose re- strictions it considers necessary, even though they may not be permissi- ble under clauses (2), (3) and (4) of article 19. The power conferred on the Central Government to impose restrictions on these three categories of rights which are part of the Funda- mental Rights under clauses (a), (b) and (c) of article 19(1) is thus a broad uncanalised and unrestricted power

permitting violation of the constitu- tional limitations. But, even so, sec- tion 21 cannot be condemned as in- valid on this ground, as it is saved by article 33 which permits the en- actment of such a provision. Arti- cle 33 carves out an exception in so far as the applicability of Fundamen- tal Rights to members of the Armed Forces and the Forces charged with the maintenance of public order is concerned. It is elementary that a highly disciplined and e cient armed force is absolutely essential for the defence of the country. Defence pre- paredness is in fact the only sure guarantee against aggression. Every e ort has therefore to be made to build up a strong and powerful army capable of guarding the frontiers of the country and protecting it from aggression. Now obviously no army can continuously maintain its state of preparedness to meet any eventuality and successfully withstand aggres- sion and protect the sovereignty and integrity of the country unless it is at all times possessed of high morale and strict discipline. Morale and dis- cipline are indeed the very soul of an army and no other consideration, howsoever important, can outweigh the need to strengthen the morale of the armed forces and to maintain discipline amongst them. Any relax- ation in the matter of morale and dis- cipline may prove disastrous and ul- timately lead to chaos and ruination a ecting the well being and imper- illing the human rights of the entire people of the country. The constitu- tion makers therefore placed the need for discipline above the fundamental rights so far as the members of the

144 Viswan v. Union Of India 1983

Armed Forces and the Forces charged with the maintenance of public or- der are concerned and provided in Article 33 that Parliament may by law determine the extent to which any of the Fundamental Rights in their application to members of the Armed Forces and the Forces charged with the maintenance of public or- der, may be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. Article 33 on a plain grammatical construc- tion of its language does not re- quire that Parliament itself must by law restrict or abrogate any of the Fundamental Rights in order to at- tract the applicability of that Arti- cle. What it says is only this and no more, namely, that Parliament may by law determine the permissible ex- tent to which any of the Fundamen- tal Rights may be restricted or ab- rogated in their application to the members of the Armed Forces and the Forces charged with the main- tenance of public order. Parliament itself can, of course, by enacting a law restrict or abrogate any of the Fundamental Rights in their applica- tion to the members of the Armed Forces and the Forces charged with the maintenance of public order as, in fact, it has done by enacting the Army Act, 1950, the provisions of which, according to the decisions of a Constitution Bench of this Court in Ram Swarup v. Union of India(1) are protected by article 33 even if found to a ect one or more of the Funda- mental Rights. But having regard to varying requirement of army dis- cipline and the need for exibility in

this sensitive area, it would be inex- pedient to insist that Parliament it- self should determine what particular restrictions should be imposed and on which Fundamental Rights in the interest of proper discharge of duties by the members of the Armed Forces and the Forces charged with the maintenance of public order mainte- nance of discipline among them. The extent of restrictions necessary to be imposed on any of the Fundamen- tal Rights in their application to the members of the Armed Forces and the Forces charged with the main- tenance of public order for the pur- pose of ensuring proper discharge of their duties and maintenance of discipline among them, would nec- essarily depend upon the prevailing situation at a given point of time and it would be inadvisable to en- case it in a rigid statutory formula. The Constitution makers were obvi- ously anxious that no more restric- tions should be placed on the Funda- mental Rights of the members of the Armed Forces and the Forces charged with the maintenance of public or- der than are absolutely necessary for ensuring proper discharge of their duties and the maintenance of dis- cipline among them, and therefore they decided to introduce a certain amount of exibility in the imposi- tion of such restrictions and by ar- ticle 33, empowered Parliament to determine the permissible extent to which any of the Fundamental Rights in their application to the mem- bers of the Armed Forces and the Forces charged with the maintenance of public order may be restricted or abrogated, so that within such per-

145

missible extent determined by Parlia- ment, any appropriate authority au- thorised by Parliament may restrict or abrogate any such Fundamental Rights. Parliament was therefore within its power under article 33 to enact Section 21 laying down to what extent the Central Government may restrict the Fundamental Rights un- der clauses (a), (b) and (c) of article 19(1), of any person subject to the Army Act, 1950, every such person being clearly a member of the Armed Forces. The extent to which restric- tions may be imposed on the Funda- mental Rights under clauses (a), (b) and (c) of article 19(1) is clearly in- dicated in clauses (a), (b) and (c) of section 21 and the Central Govern- ment is authorised to impose restric- tions on these Fundamental Rights only to the extent of the rights set out in clauses (a), (b) and (c) of sec- tion 21 and no more. The permis- sible extent of the restrictions which may be imposed on the Fundamen- tal Rights under clauses (a), (b) and

(c) of Article 19 (1) having been laid down in clauses (a), (b) and (c) of section 21, the Central Govern- ment is empowered to impose restric- tions within such permissible limit, \to such extent and in such manner as may be necessary." The guideline for determining as to which restric- tions should be considered necessary by the Central Government within the permissible extent determined by Parliament is provided in article 33 itself, namely, that the restrictions should be such as are necessary for ensuring the proper discharge of their duties by the members of the Armed Forces and the maintenance of dis-

cipline among them. The Central Government has to keep this guide- line before it in exercising the power of imposing restrictions under Sec- tion 21 though, it may be pointed out that once the Central Govern- ment has imposed restrictions in ex- ercise of this power, the court will not ordinarily interefere with the deci- sion of the Central Government that such restrictions are necessary be- cause that is a matter left by Par- liament exclusively to the Central Government which is best in a po- sition to know what the situation demands. Section 21 must, in the circumstances, be held to be consti- tutionally valid as being within the power conferred under article 33.

That takes us to the next ques- tion whether the Central Govern- ment was entitled to issue SROs. 329 and 330 applying certain provisions of the Army Act 1950 and the Army rules 1954 to the members of GREF. We will rst consider the question of validity of SRO 329 because if that noti cation has been validly issued and the provisions of section 21, sub- section (4) of section 102 and sec- tion 191 of the Army Act 1950 made applicable to the members of REF, SRO 330 applying certain provisions of the Army Rules, 1954 to the mem- bers of GREF in exercise of the pow- ers conferred under section 21, sub- section(4) of section 102 and section 191 of the Army Act 1950 would be fortiori be valid. Now SRO 329 is is- sued by the Central Government un- der sub-sections (1) and (4) of sec- tion 4 of the Army Act 1950 which provide inter alia as under:

146 Viswan v. Union Of India 1983

\Sec. 4(1) The Central Govern- ment my, by noti cation, apply with or without modi cations, all or any of the provisions of this Act to any force raised and maintained in India under the authority of that Govern- ment, and suspend the operation of any other enactment for the time be- ing applicable to the said force.

(2)... ... ... ...

(3)... ... ... ...

(4)While any of the provisions of this Act apply to the said force, the Central Government may, by no- ti cation, direct by what authority any jurisdiction, powers or duties in- cident to the operation of these pro- vision shall be exercised or performed in respect of the said force.

The Central Government is em- powered under sub-section (1) of sec- tion 4 to apply any of the provisions of the Army Act, 1950 to any force raised or maintained in India un- der the authority of that Government and when any such provisions of the Army Act, 1950 are applied to that force under sub-section (1), the Cen- tral Government can by noti cation issued under sub-section (4), direct by what authority, the jurisdiction, powers and duties incident to the op- eration of those provisions shall be exercised or performed in respect of that force. SRO 329 applying certain provisions of the Army Act, 1950 to the members of GREF and directing by what authority, the jurisdiction, powers and duties incident to the op- eration of those provisions shall be exercised or performed in respect of GREF, would therefore be within the

power of the Central Government un- der sub-section (1) and (4) of section 4, if GREF could be said to be a force raised and maintained in India under the authority of the Central Govern- ment. The question is: what is the true meaning and scope of the ex- pression \any force raised and main- tained in India under the authority of the Central Government." The word \force" is not de ned anywhere in the Army Act, 1950. There is a def- inition of the expression \the forces" in section 3 (xi) but it does not help, because the expregsion we have to construe is \force" which is di er- ent from \the forces". There is how- ever an indication to be found in sub- section (2) of section 4 which throws some light on the sense in which the word \force" is used in sub-section

(1) of section 4. Section 4, sub- section (2) clearly contemplates that the \force" referred to in sub-section

(1) of section 4 must be a force or- ganised on similar lines as the army with rank structure. So far as GREF is concerned, there can be no doubt that it is a force organised on army pattern with units and sub units and rank structure. Moreover, as is clear from the letter dated 16th June, 1960 addressed by the Secretary, Border Roads Development Board to the Di- rector General Border Roads, GREF is a force raised and maintained un- der the 11 authority of the Central Government. The Central Govern- ment therefore had power under sub- sections (1) and (4) of section 4 to issue SRO 329 applying some of the provisions of the Army Act, 1950 to GREF and directing by what au- thority the jurisdiction powers and

147

duties incident to the operation of these provisions shall be exercised or performed in respect of GREF. But the question is, and that is the more important question to which we have to address ourselves, whether, even if GREF was a force raised and maintained under the authority of the Central Government, the Central Government could, in exercise of the powers conferred under sub-section

(1) of section 4, validly-apply section

21 to the members of GREF. Sec- tion 21 empowers the Central Gov- ernment to make rules restricting \to such extent and in such manner as may be necessary" the rights set out in clauses (2), (b) and (c) of that sec- tion and in exercise of this power, the Central Government has made rules 19 to 21 to which reference has al- ready been made by us. Now as al- ready pointed out above, section 21 is protected against invalidation by Ar- ticle 33, since it lays down in clauses (a), (b) and (c) the possible extent to which the fundamental rights of any person subject to the Army Act, 1950 may be restricted and every person subject to the Army Act 1950 would clearly and indubitably be a member of the Armed Forces within the meaning of Article 33. But if sec- tion 21 were to be applied to per- sons who are not members of the Armed Forces of the forces charged with the maintenance of public order, Article 33 would not a ord any pro- tection to section 21 in so far as it applies to such persons and the ap- plication of section 21 to such per- sons would be unconstitutional. We must therefore proceed to consider whether the members of GREF could

be said to be members of the Armed Forces within the meaning of Article 33. If they cannot be said to be mem- bers of the Armed Forces, the appli- cation of section 21 to them would not have the protection of Article 33 and would be clearly void.

The history, composition, ad- ministration, organisation and role of GREF which we have described above while narrating the facts clearly show that GREF is an inte- gral part of the Armed Forces. It is undoubtedly a departmental con- struction agency as contended on be- half of the petitioners but it is dis- tinct from other construction agen- cies such as Central Public Works Department etc., in that it is a force intended primarily to support the army in its operational requirement. It is signi cant to note that the Bor- der Roads organisation, which is in over all control of GREF was origi- nally created as part of Army Head- quarters and it was only later, for reasons of high policy, that it was separated from Army Headquarters and placed under the Border Roads Development Board. Though the budget of the Border Roads organisa- tion forms part of the budget of Min- istry of Shipping and Transport, thenancial control is vested in the Min- istry of Finance (Defence). The en- tire infra-structure of GREF is mod- elled on the pattern of the Army and it is organised into units and sub- units with command and control sys- tem similar to that in the Army. The personnel of GREF right from class IV to class I have to be in uniform with distinctive badges of rank and

148 Viswan v. Union Of India 1983

they have a rank structure equiva- lent to that of the Army. GREF is primarily intended to carry out de- fence and other works projected by the General Sta , Army Headquar- ters and it is only where spare ca- pacity is available that GREF under- takes works of other ministries or de- partments on agency basis and there also, preference is given to strate- gic and other roads in sensitive ar- eas. The funds which are provided to the Border Roads organisation are meant exclusively for carrying out the works entrusted by the General Sta , Army Headquarters and so far as the works carried out for other ministries or departments on agency basis are concerned, the funds of the Border Roads organisation are not permitted to be used for carrying out those works and they are paid for by the respective ministries or depart- ments and where applicable, agency charges for executing the works are also collected. The statistics given in the earlier part of the judgment show that the major portion of the work executed by GREF units consists of tasks entrusted by the General Sta , Army Headquarters and only a small percentage of the work is being done on behalf of other ministries or de- partments. GREF units carry out es- sentially those tasks which are other wise carried out by Army Engineer- ing Regiments and they provide en- gineering support to the Army both during peace time as also during hos- tilities. It was found necessary as a result of a major review carried out by Army Headquarters after 1971 that a minimum of 17 Border Road Task Forces and 34 Pioneer Compa-

nies would be permanently required for providing engineering support to the Army and accordingly 17 Bor- der Road Task Forces and 34 Pioneer Companies have been made perma- nent and their composition has been reorganised in accordance with the recommendations of the Army Head- quarters. These 17 Border Road Task Forces and 34 Pioneer Compa- nies are being maintained as essential units of GREF for meeting the op- erational requirements of the Army, even if su cient work is not avail- able for them at any given point of time. The operational planning of the Army is in fact based on avail- ability of these 17 Border Road Task Forces and 34 Pioneer Companies and during operations, they have to carry out tasks which would other- wise have been done by equal num- ber of Army Engineering Regiments. It may be pointed out that these 17 Border Road Task Forces and 34 Pio- neer Companies have replaced corre- sponding number of Army Engineer- ing Regiments and Pioneer Compa- nies in the Army. The tasks required to be carried out by the Border Road Task Forces have already been de- scribed in some details in the opening part of the Judgment while narrating the facts and we need not repeat the same over again. Su ce it to state that these tasks are required to be carried out by the Border Road Task Forces during operations with a view to providing engineering support to the Army in its operational plans. The Border Road Task Forces have to perform these tasks and provide engineering support to the Army not only up to the border but even be-

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yond up to the exent of advance into enemy territories. Even in peace time, the Border Road Task Forces have to undertake works projected by General Sta , Army Headquarters to meet their operational requirements and these work include construction and maintenance of roads, opera- tional tracks, ditch-cum-bund (water obstacles on the broder), eld for- ti cations like bunkers, re trenches and pill boxes, helipads and air elds. It is also signi cant to note that the Border Road Task 1 Forces and Pi- oneer Companies attached to them are included in the order of Battle of the Army which implies that sup- port of these units to the Army is guaranteed and can be requisitioned at any time The Border Road Tack Forces are also sub-allotted to lower army formations and they appear on the order of Battle of these for- mations. GREF units consisting of these Border Road Task Forces and Pioneer Companies are placed un- der the direct control of the Army during emergencies when the entire control of this Force is entrusted to the Chief of the Army Sta . Even during peace time, the Chief of the Army Sta exercises control over the discipline of the members of GREF units through the applicability of the provisions of the Army Act 1950. The Director General, Border Roads who is in over-all control of GREF units is always an army o cer of the rank of Major General and his con-dential reports are written by the Chief of the Army Sta . The sig- nal communication of GREF is also integrated with the Army commu- nication set up not only during op-

erations but also in normal peace time. It is also a factor of vital sig- ni cance which emphasises the spe- cial character of GREF as a force intended to provide support to the Army in its operational plans and re- quirements that Army personnel are posted in GREF units according to a carefully planned manning policy so that GREF units can in times of war or hostilities be able to provide e ective support to the Army. The tenure of o ce of the Army personnel in GREF units is regarded as normal regimental duty and is equated with similar appointments in the Army for the purpose of promotion, career planning etc. Even the directly re- cruited personnel of GREF are given training at the GREF Centre be- fore they are posted and the training given is in three military disciplines which we have described in detail in the opening part of the Judgment. The training includes not only drill, marching and saluting but also com- bat training including physical train- ing such as standing Exercises, beam exercises. rope work, route marches etc. and combat engineering train- ing including eld engineering, han- dling of service cxplosives, camou-age, combat equipment, bridging,eld forti cations, wire obstacles etc. Moreover, the directly recruited per- sonnel are taken up only after they voluntarily accept the terms and con- ditions of employment which include inter alia conditions 5 (1v), (v). 5 (vi) and 5 (xi) which have been re- produced in full while narrating the facts. These conditions make it clear the directly recruited personnel my be required to serve anywhere in In-

150 Viswan v. Union Of India 1983

dia and outside India and when di- rected, they would have to proceed on eld service and if required, they would also be liable to serve in any Defence Service or post connected with the defence of India. It is also stipulated in these conditions that on their appointment, the directly re- cruited personnel would have to wear the prescribed uniform while on duty and that they would be subject to the provisions of the Army Act 1950 and the Army Rules 1954 as laid down in SROs. 329 and 330 for purpuoses of discipline. It is abundantly clear from these facts and circumstances that GREF is an integral part of the Armed Forces and the members of GREF can legitimately be said to be members of the Armed Forces within the meaning of article 33.

The petitioners however tried to combat this conclusion by pointing out that the services constituted un- der Border Roads Engineering Ser- vice Group A, Rules 1977 and the Border Roads Engineering Service Group B, Rules, 1977 both of which were made by the President in exer- cise of the powers conferred under ar- ticle 309 and brought into force with e ect from 20th September 1977, were expressly designated as Central Civil Services and that in reply to Unstarred Question No. 1100, the Minister for Defence stated on 18th June, 1980 that \GREF as at present organized is a civilian construction force" and similarly in reply to Un- starred Question No. 6002, the Min- ister of Defence observed on 1st April 1981 that \the civilian employees serving with the Border Roads or-

ganisation and GREF are not un- der administrative control of Min- istry of Defence but are under the administrative control of the Border Roads Development Board" and so also Minister of Defence stated on 25th February 1983 in answer to Un- starred Question No. 938 that \the members of the General Reserve En- gineer Force of the Border Roads or- ganisation are civilian employees of the Central Government". The pe- titioners contended on the basis of these statements that GREF was not an Armed Force but was a civilian construction agency and the mem- bers of GREF could not possibly be regarded as members of the Armed Forces so as to fall within the scope and ambit of article 33. This con- tentions though it may appear at rst blush attractive, is in our opinion not well founded and must be re- jected. It is undoubtedly true that as stated by the Minister of Defence, GREF is a civilian construction force and the members of GREF are civil- ian employees under the administra- tive control of the Border Roads De- velopment Board and that the en- gineer o cers amongst hem consti- tute what may be designed as \Cen- tral Civil Services, within GREF, but that does not mean that they cannot be at the same time form an integral part of the Armed Forces. The fact that they are described as civilian employees and they have their own special rules of recruitment and are governed by the Central Civil Ser- vice (Classi cation, Control and Ap- peal) Rules, 1965 is not determina- tive of The question whether they are members of the Armed Forces lt may

151

be noted that even the members of the Civil General Transport Compa- nies constituted under Government of India, War Department, noti ca- tion No. 1584 dated 29th June, 1946 as also the members of the indepen- dent Transport Platoons have been treated as members of the Armed Forces for the purpose of application of the provisions of the Army Act 1950 by SRO 122 dated 22nd July 1960 and SRO 282 dated 17th Au- gust 1960. So also when personal of Military Engineer Service have to function in operational areas under the army, they too are brought un- der the provisions of the Army Act 1950 for the purpose of discipline. The question whether the members of GREF can be said to be members of the Armed Forces for the purpose of attracting the applicability of ar- ticle 33 must depend essentially on the character of GREF, its organ- isational set up, its functions, the role it is called upon to play in re- lation to the Armed Forces and the depth and intimacy of its connec- tion and the extent of its integra- tion with the Armed Forces and if judged by this creterian, they are found to be members of the Armed Forces, the mere fact that they are non-combatant civilians governed by the Central Civil Services (Classi ca- tion Control and Appeal) Rules 1965, cannot make any di erence. This view which we are taking on princi- ple nds ample support from the de- cision of this Court in Ous Kutilingal Achudan Nair Ors. v. Union of In- dia & Ors.(1) where the question was whether certain employees in the De- fence Establishment such as cooks,

chowkidars, laskers, barbers, carpen- ters, mechanics, boot-makers, tailors etc. who were noncombatant civil- ians governed by the Civil Service Regulations for purpose of discipline, leave, pay etc. and were eligible to serve up to the age of 60 years unlike the members of the Armed Forces, could be validly called \members of the Armed Forces" covered by arti- cle 33, because it Was only if they were members of the Armed Forces within the meaning of that article that the restrictions imposed upon their right to form association could be sustained. This Court speaking through Sarkaria, J. held that the employees in question were members of the Armed Forces and gave the fol- lowing reasons in support of its view: \The members of the Unions" repre- sented by the appellants fall within this category. It is their duty to fol- low or accompany the Armed per- sonnel on active service, or in camp or on the march. Although they are non-combatants and are in some matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the \members of the Armed Forces" within the contem- plation of Article 33.

Here also it is indisputable on the facts and circumstances mentioned above that the functions and duties of GREF are integrally connected with the operational plans and re- quirements of the Armed Forces and the members of GREF are, to use the words of Sarkaria, J. \integral to the Armed Forces". There can be no doubt that with out the e -

152 Viswan v. Union Of India 1983

cient and disciplined operational role of GREF the military operations in border areas during peace as also in times of war will be seriously ham- pered and a highly disciplined and e cient GREF is absolutely essen- tial for supporting the operational plans and meeting the operational re- quirements of the Armed Forces. It must therefore be held that the mem- bers of GREF answer the description of \members of the Armed Forces" within the meaning of article 33 and consequently the application of sec- tion 21 of the Army 89

Act 1950 to the members of GREF must be held to be protected by that Article and the Fundamen- tal Rights of the members of GREF must be held to be validly restricted by section 21 read with Rules 19 to 21 of the Army Rules 1954. If that be so, the petitioners were liable to be charged under section 63 of the Army Act 1950 for the alleged vio- lations of Rules 19 to 21 and their convictions by Court Martial as also subsequent dismissals must be held to be valid. Before we part with this point, we may point out that an anguished complaint was made be- fore us on behalf of the petitioners that there is considerable disparity between the Army personnel posted in GREF units and the other o - cers and men of GREF in so far as the terms and conditions of service, such as, salary, allowances and ra- tions arc concerned. It is not neces- sary for us to consider whether this complaint is justi ed; it is possible that it may not be wholly unjusti-ed but we may point out that in any

event it has no real bearing. It all on the question whether the members of GREF can be said to be members of Armed Forces. Since, the mem- bers of GREF are drawn from two di erent sources, it is possible that the terms and conditions of service of the personnel coming from the two sources may be di erent. The Army personnel posted in GREF units nat- urally carry their own terms and con- ditions of service while the other o - cers and men in GREF are governed by their own distinctive terms and conditions. It is di cult to appre- ciate how di erences in terms and conditions of service between GREF personnel coming from two di erent streams can possibly have any im- pact on the character of GREF as a force integral to the Armed Forces. It is immaterial for the purpose of determining whether the members of GREF are members of the Armed Forces as to what are the terms and conditions of service of the members of GREF and whether they are iden- tical with those of Armed personnel appointed on the same or equivalent posts in GREF units. But, we may observe that in case it is found that the terms and conditions of service of o cers and men in GREF directly recruited or taken on deputation are in any way less favourable than those of Army personnel appointed to the same or equivalent posts in GREF, the Central Government might well consider the advisability of taking steps for ensuring that the disparity, if any, between the terms and condi- tions of service, such as, salary, al- lowances, rations etc. Of Army per- sonnel posted in GREF units and

153

other o cers and men in GREF is removed.

It may be pointed out that a faint attempt was made on behalf of the petitioners to contend that their con- victions by Court Martial were ille- gal since their trial was not in ac- cordance with law. This contention was strongly resisted on behalf of the respondents and it was positively averred in the a davit of Lt. Col. Shergill that disciplinary action was initiated and punishment awarded by the competent disciplinary authority after the o ences were proved in ac- cordance with law and all possible help and opportunity was extended to the petitioners and others who were tried to defend themselves with the help of defending o cers of their choice or of civil lawyers. Lt. Col. Shergill stated in the clearest terms in his a davit in reply that \out of 357 personnel kept under military custody, 287 have been released on the basis of their unconditional apol- ogy and those who failed to do so, have been tried by GCM/SCM sum- marily and awarded punishment, on the basis of the gravity of the of- fence proved against them. During the trial, all possible help was pro- vided under the rules and they were allowed to meet/employ lawyers of their choice to defend the case. In all the cases, defending o cers as per their choices have also been de- tailed from departmental side. The trials were held strictly in accordance with the procedure laid down in the rules, and there is no denial of nat- ural justice." Having regard to this positive statement made on oath by

Lt. Col. Shergill, it is not possi- ble for us to hold that the convic- tions of the petitioners by the Court Martial were not in accordance with law. In any event, the allegations of the petitioners in this behalf raised disputed questions of fact which it is not possible for us to try in a writ petition. We cannot in the cir- cumstances be called upon to quash and set aside the convictions of the petitioners by the Court Martial or their subsequent dismissals from ser- vice on the ground that they were not in accordance with law.

There was also one other con- tention advanced on behalf of the pe- titioners and it raised a question of violation of Article 14 of the Con- stitution. The contention was that the members of GREF were governed both by the Central Civil Services (Classi cation, Control and Appeal) Rules 1965 and the provisions of the Army Act 1950 and the Army Rules 1954 in matters of discipline and therefore whenever a member of GREF was charged with misconduct amounting to an o ence under the Army Act 1950, it was left to the unguided and unfettered discretion of the authorities whether to pro- ceed against the employee under the Central Civil Services (Classi cation, Control and Appeal) Rules 1965 or under the Army Act 1950 and the Army Rules 1954 and SROs. 329 and 330 applying the provisions of the Army Act, 1950 and the Army Rules 1954 to members of GREF for purposes of discipline were therefore discriminatory and violative of Ar- ticle 14. We do not think there is

154 Viswan v. Union Of India 1983

any substance in this contention. In the rst place, the nature of the pro- ceedings which may be taken under the Central Civil Services (Classi - cation, Control and Appeal) Rules 1965 against an erring employee is di erent from the nature of the pro- ceedings which may be taken against him under the provisions of the Army Act 1950 read with the Army Rules 1954, the former being disciplinary in character while the latter being clearly penal. It is signi cant to note that Section 20 of the Army Act 1950 which deals with dismissal, re- moval or reduction of any person sub- ject to that Act and clauses (d), (e), (f), (g) and (k) of Section 71 which provide for punishment of cashier- ing, dismissal, reduction in rank for- feiture of seniority and forfeiture of pay and allowances, have not been made applicable to the members of GREF by SRO 329 with the result that, so far as disciplinary proceed- ing are concerned, there is no over- lapping between the provisions of the Central Civil Services (Classi cation, Control and Appeal) Rules 1965 and the provisions of the Army Act 1950 and the Army Rules 1954 as ap- plied to the members of GREF. Sec- ondly, it is not possible to say that the discretion vested in the author- ities whether to take action against an erring member of GREF under Central Civil Services (Classi cation Control and Appeal) Rules 1965 or under the Army Act 1950 and the Army Rules 1954 is unguided or un- canalised. It has been denied in the a davit of Lt. Col. Shergill that unguided discretion any power is vested in the disciplinary author-

ity to proceed against an employee of GREF either under the Central Civil Services (Classi cation, Control and Appeal) Rules 1965 or the Army Act 1950 and the Army Rules 1954 or to switch over from one proceeding to the other at the any stage. Lt. Col. Shergill has stated positively in his a davit that clear and de- tailed administrative guidelines have been laid down for the purpose of guiding the disciplinary authority in exercising its discretion whether to take action against an employee of GREF under the Central Civil Ser- vices (Classi cation, Control and ap- peal) Rules 1965 of the Army Act 1950 and the Army Rules 1954 and these guidelines have been set out in full in Annexure R-5 to his a davit. Thirdly, the decision in Northern In- dia Caterers Ltd. v. Punjab(1) on which the contention of the petition- ers is based has been over-ruled by this Court in Maganlal Chhaganla v. Municipal Corporation, Greater Bombay(2) where it has been held that \the contention that the mere availability of two procedures will vi- tiate one of them, that is, the special procedure is not supported by rea- son or authority." And lastly, it may be noted that in any event the provi- sions of the Army Act 1950 and the Army Rules 1954 as applied to the members of GREF are protected by Article 33 against invalidation on the ground of violation of Article 14. The present contention urged on behalf of the petitioners must also therefore be rejected.

We may make it clear it is only in regard to the members of GREF that

155

we have taken the view that they are members of the Armed Forces within the meaning of Article 33. So far as casual labour employed by GREF is concerned, we do not wish to express any opinion on this question whether they too are members of the Armed

Forces or not, since that is not a question which arises for considera- tion before us. The writ petitions are accordingly dismissed with no order as to costs. The special leave peti- tions will also stand rejected.

H.L.C. Petitions dismissed.

156 Viswan v. Union Of India 1983
Chapter 10
Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985
Chief Of The Army Sta And 1985 SCC (2) 412 1985 SCALE
Others v. Major Dharam Pal (1)582    
Kukrety on 21 March, 1985 Equiv- ACT:    
alent citations: 1985 AIR 703, 1985    
Constitution of India Article 226-
SCR (3) 415 Author: B P Narain
Maintainability of writ petition at
Bench: Madon, D.P.   the stage of show cause notice to
PETITIONER:  
  terminate the services of a service
     
CHIEF OF THE ARMY STAFF personnel by the Chief of the Army
AND OTHERS   sta when the nding of a court
v.     martial even on revision is perverse
    or against the weight of evidence
RESPONDENT:  
  on record-Army Act, 1950 sections
MAJOR DHARAM PAL
18 to 24, 108, 121, 127, 153, 154,
KUKRETY     160(1), 191 and the Army Rules 1954
     
DATE OF JUDGMENT21/03/1985 Rules 14 and 68 to 71, scope of-
BENCH:     Competency of the Chief of the Army
    Sta to have recourse to Rule 14
MADON, D.P.  
  of the Army Rules, when the gen-
     
BENCH:     eral court martial originally and on
     
MADON, D.P.   revision returned a verdict of \Not
       
CHANDRACHUD, Y.V. ((CJ) guilty" -Principle of double jeop-
ardy Aufrefois Acquit applicability-
MISRA RANGNATH  
  Constitution of India Article 20(2)
     
CITATION:   read with Army Act, section 121.  
       
1985 AIR 703 1985 SCR (3) 415 HEADNOTE:    
         
           

158 Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985

The respondent, a permanent commissioned o cer of the Indian Army holding the substantive rank of captain and the acting rank of major, as a result of certain incidents which are alleged to have taken place on November 5 and 6, 1975 was ordered to be tried by a general court martial. On March 13, 1976, the court mar- tial announced its nding subject to con rmation, the nding being \Not guilty of all the charges." The Gen- eral O cer Commanding, Madhya Pradesh, Bihar and Orissa Area, the third appellant, who was the con-rming authority, did not con rm the verdict and by his order dated April 3, 1976, sent back the nd- ing for revision. The same general court martial, therefore, reassembled on April 14, 1976, and after hear- ing both sides and taking into con- sideration the observations made by the third appellant in his said or- der dated April 3, 1976, adhered to its original view and once again an- nounced the nding subject to con-rmation, that the respondent was \Not guilty of all the charges". The third appellant reserved con rmation of the nding on revision by a supe- rior authority, namely, the General O cer, Commanding- in-Chief, Cen- tral Command, Lucknow, the sec- ond appellant, and forwarded the pa- pers to him. By his order dated May 25, 1976, the second appellant did not con rm the nding on re- vision of the general court martial. The charges made against the re- spondent, the nding and the non- con rmation thereof were promul- gated as required by Rule 71 of the Army Rules. Thereafter, the Chief

of the Army Sta under Rule 14 of the Army Rules 1954 issued the impugned show cause notice dated November 12, 1976 stating that the Chief of the Army Sta had care- fully considered the facts of the case as also the respondent's defence at the trial and being satis ed that a fresh trial by a court martial for the said o ences was inexpedient, he was of the opinion that the respondent's misconduct as disclosed in the pro- ceedings rendered his further reten- tion in the service undesirable. and called upon the respondent to sub- mit his explanation and defence, if any, within twenty- ve days of the re- ceipt of the said notice. Along with the said notice copies of abstracts of evidence and the court martial pro- ceedings were forwarded to the re- spondent. The respondent, there- upon, led in the High Court of Al- lahabad a writ petition under Article 226 of the Constitution of India be- ing Civil Miscellaneous Writ No. 84 of 1976, which was allowed by a Di- vision Bench of the said High Court. Hence the appeal by special leave Al- lowing the appeal, the Court

HELD: 1. Where the threat of a prejudicial action is wholly with- out jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the Court's protection. If, on the other hand, the Chief of the Army Sta had the power in law to issue the said notice, it would not be open to the respondent to approach the court under Article 226 of the Con- stitution at the stage of notice only and in such an event his writ peti-

159

tion could be said to be premature. This was, however, not a contention which could have been decided at the threshold until the court had come to a nding with respect to the ju- risdiction of the Chief of the Army Sta to issue the impugned notice. Having held that the impugned no- tice was issued without any jurisdic- tion, the High Court was right in further holding that the respondent's writ petition was not premature and was maintainable. [420C-E]

2. Whether the Chief of the Army Sta was competent to issue the impugned notice of show cause depends upon the relevant provisions of the Army Act 1950 and the Army Rules 1954. Under Section 153 of the Army Act, no nding or sentence of a general, district or summary gen- eral, court martial shall be valid ex- cept so far as it may be con rmed as provided by the Army Act. Un- der Section ]60 of the Army Act, the con rming authority has the power to direct a revision of the nding of a court martial only once. There is no power in the con rming authority, if it does not agree with the nding on revision, to direct a second revi- sion of such nding. In the absence of any such con rmation, whether of the original nding or of the nding on revision, by reason of the provi- sions of Section 153 the nding is not valid. Therefore, in the case of the respondent, the nding of the general court martial on revision not having been con rmed was not valid. Equally, there is however, no express provision in the Army Act which em- powers the holding of a fresh court

martial when the nding of a court martial on revision is not con rmed. [427C-F]

3. Though it is open to the Cen- tral Government or the Chief of the Army Sta to have recourse to Rule 14 of the rst instance without di- recting trial by a court martial of the concerned o cer, there is no provi- sion in the Army Act or in Rule 14 or any of the other Rules of the Army Rules which prohibits the Central Government or the Chief of the Army Sta from resorting in such a case to Rule 14. [429F-G] In the present case, the Chief of the Army Sta had, on the one hand, the nding of a general court martial which had not been con rmed and the Chief of the Army Sta was of the opinion that the further retention of the re- spondent in the service was undesir- able and, on the other hand, there were three di erence con icting deci- sions of di erent High Courts on this point which point was not concluded by a de nitive pronouncement of this Court. In such circumstances, to or- der a fresh trial by a court martial could certainly be said to be both inexpedient and impracticable and the only expedient and practicable course, therefore, open to the Chief of the Army Sta would be to take action against the respondent under Rule 14, which he did. The action of the Chief of the Army Sta in issu- ing the impugned notice was, there- fore, neither without jurisdiction nor unwarranted in law. [430B-D] Capt. Kashmir Singh Shergill v. The Union of India & Another, Civil Writ No. 553 of 1974 decided on November

160 Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985

6, 1974 by Prakash Narain, J., ap- proved.

G.B. Singh v. Union of India and Others, [1973] Crl. L.J. 485; Major Manohar Lal v. The Union of In- dia and Anr., 1971 (1) S.L.R. 717; J.C. 13018 Subedar Surat Singh v. The Chief Engineer Projects (Bea- con) C/o.56 A.P.O. AIR 1970 J. & K 179 referred to.

JUDGMENT:

CIVIL APPELLATE JURIS- DICTION: Civil Appeal No. 663 of 1978.

From the Judgment and Order dt. 9.3.77 of the Allahabad High Court in Civil Misc. Writ No. 84/77.

Dr. Anand Prakash, V.B.. Sa- haraya and Miss A. Subhashini, for P the Appellants

H. S. Parihar, for the Respon- dent.

The judgment of the Court was delivered by MADON,J. This Ap- peal by Special Leave granted by this Court is preferred against the judg- ment and order of a Division Bench of the Allahabad High Court allow- ing the writ petition led by the Re- spondent under Article 226 of the Constitution of India and quashing a show cause notice dated Novem- ber 12,1976 issued by the First Ap- pellant, the Chief of the Army Sta , under Rule 14 of the Army Rules. 1954. The facts which have given rise to this Appeal lie in a narrow compass. The Respondent is a per- manent commissioned o cer of the Indian Army holding the substan- tive rank of Captain and the acting rank of Major. In November 1975,

he was posted in the Army School of Mechanical Transport, Faizabad. As a result of certain incidents which are alleged to have taken place on November 6 and 7, 1975, the Re- spondent was tried by a general court martial on four charges. It is un- necessary to reproduce the charges made against the Respondent. The charge-sheet was dated January 20, 1976, and was issued by the Com- mandant, Ordinance Depot, Fort Al- lahabad. On January 24, 1976, the Respondent was ordered to be tried by a general court martial. The Re- spondent pleaded not guilty and his trial took place at Lucknow before a general court martial consisting of one Brigadier, two Majors and two Captains Both the prosecution and the Respondent led evidence. On March 13, 1976, the court martial an- nounced its nding subject to con r- mation, the nding being \Not guilty of all the charges". The General O - cer, Commanding Madhya Pradesh, Bihar and Orissa Area, the Third Appellant, who was the con rming authority, did not con rm the ver- dict and by his order dated April 3, 1976, sent back the nding for revi- sion. The same general court mar- tial, therefore, re assembled on April 14, 1976, and after hearing both sides and taking into consideration the ob- servations made by the Third Appel- lant in his said order dated April 3, 1976, adhered to its original view and once again announced the nding that the Respondent was ' Not guilty of all the charges". The said nd- ing was also expressly announced as being subject to con rmation. The Third Appellant reserved con rma-

161

tion of the nding on revision by a su- perior authority, namely, the General O cer, Commanding in-Chief, Cen- tral Command, Lucknow, the Sec- ond Appellant, and forwarded the papers to him. By his order dated May 25, 1976, the Second Appellant did not con rm the nding on re- vision of the general court martial. The charges made against The Re- spondent, the nding and the non- con rmation thereof were promul- gated as required by Rule 71 of the Army Rules.

Thereafter the Chief of the Army Sta under Rule 14 of the Army Rules issued the impugned show cause notice dated November 12, 1976. It was stated in the said notice that the Chief of the Army Sta had carefully considered the facts of the case as also the Respondent's defence at the trial and being satis ed that a fresh trial by a court martial for the said o ences was inexpedient, he was of the opinion that the Respondent's misconduct as disclosed in the pro- ceedings rendered his further reten- tion in the service undesirable. The Respondent was called upon by the said notice to submit his explanation and defence, if any, within twenty-ve days of the receipt of the said notice. Along with the said notice copies of abstracts of evidence and the court martial proceedings were forwarded to the Respondent. The Respondent thereupon led in the High Court of Allahabad a writ pe- tition under Article 226 of the Con- stitution of India being Civil Miscel- laneous Writ No. 84 of 1976, which, as aforesaid, was allowed. It was the

contention of the Respondent in his writ petition that under the Army Act, 1950 (Act No. 46 of 1950), and the Army rules there was an initial option either to have the concerned o cer tried by a court martial or to take action against him under Rule 14 and that in his case the option having been exercised to try him by a court martial, the Chief of the Army Sta was not competent to have re- course to Rule 14 after the Respon- dent was - acquitted both at the time of the original trial and on revision. This contention found favour with the High Court. The High Court held that as the Respondent had in fact been tried by a court martial which both at the time of the origi- nal trial and on revision had returned a verdict of 'not guilty, it could not be said that it was inexpedient to try the Respondent by a court mar- tial and, therefore, the impugned no- tice under Rule 14 was issued with- out any jurisdiction. At the hearing of the said writ petition a prelimi- nary objection was raised by the Ap- pellants that the said writ petition was not maintainable as being pre- mature. The High Court held that as the impugned notice was issued without jurisdiction, it would be ex- posing the Respondent to jeopardy to require him to submit his reply to the said notice and to wait un- til his services were terminated. The same contentions, as were raised be- fore the High Court, were taken be- fore us at the hearing of this Ap- peal. We will rst deal with the Ap- pellants' preliminary objection that the Respondent's writ petition was not maintainable as being prema-

162 Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985

ture. It was the Respondent's case that the Chief of the Army Sta had no jurisdiction to issue the impugned show cause notice after he had been again found not guilty by the court martial on revision. The said no- tice expressly stated that the Chief of the Army Sta was of the opin- ion that the Respondent's miscon- duct as disclosed in the proceedings rendered his further retention in ser- vice undesirable and asked him to submit his explanation and defence, if any, to the charges made against him. If the Respondent's contention with respect to the jurisdiction of the Chief of the Army Sta to issue the said notice were correct, the Respon- dent was certainly exposed to the jeopardy of having his explanation and defence rejected and he being removed or dismissed from services. Were the said notice issued without jurisdiction, the Respondent would have then su ered a grave, prejudi- cial injury by an act which was with- out jurisdiction. Where the threat of a prejudicial action is wholly with- out jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the Court's protection. If, on the other hand, the Chief of the Army Sta had the power in law to issue the said notice, it would not be open to the Respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to be premature. This was, how- ever, not a contention which could have been decided at the threshold until the court had come to a nding with respect to the jurisdiction of the

Chief of the Army Sta to issue the impugned notice. Having held that the impugned notice was issued with- out any jurisdiction, the High Court was right in further holding that the Respondent's writ petition was not premature and was maintainable.

Before considering the rival con- tentions with respect to the validity of the impugned notice, we may men- tion that a learned Single Judge of the Delhi High Court has held in the case of Capt. Kashmir Singh Shergill v. The Union of India and another

(1) that the Chief of the Army Sta was competent to issue a show cause notice under Rule 14 even though the court martial had a rmed its verdict on revision.

The answer to the question whether the Chief of the Army Sta was competent to issue the impugned notice depends upon the relevant provisions of the Army Act and the Army Rules to which we now turn.

Chapter IV of the Army Act, which consists of Section 18 to 24, deals with the conditions of service of persons appointed under

(1) Civil Writ No. 553 of 1974 decided on November 6, 1974 by Prakash Narain, J. the Act. Section 18 provides that every person subject to the Army . Act shall hold o ce during the pleasure of the President. Section 19 provides that subject to the provisions of the Army Act and the rules and regulations made there- under, the Central Government may dismiss, or remove from the service, any person subject to the Army Act. Section 22 provides that any person

163

subject to the Army Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed by rules made under the Act. Sec- tion 191 confers' upon the Central Government the power to make rules for the purpose of carrying into e ect the provisions of the Army Act. Rule 14 of the Army Rules, 1954, provides as follows: "14. Termination of ser- vice by the Central Government on account of misconduct-

(1)When it is proposed to ter- minate the service of an o cer under Section 19 on account of misconduct, he shall be given an opportunity to show cause in the manner speci ed in sub-rule

(2)against such action:

Provided that this sub-rule shall not apply: (a) where the service is terminated on the ground of conduct which has led to his conviction by a criminal court; or

(b) where the Central Govern- ment is satis ed that for reasons to be recorded in writing, it is not ex- pedient or reasonably practicable to give to the o cer an ' opportunity of showing cause. (2) When after considering the reports of an o cer's misconduct, the Central Government or the Chief of the Army Sta is sat- is ed that the trial of the o cer by court martial is inexpedient or im- practicable, but is of the opinion that the further ' retention of the said of-cer in the service is undesirable the Chief of the Army Sta shall so in- form the o cer together with all re- ports adverse to him and he shall be

called upon to submit, in writing, his explanation and defence:

Provided that the Chief of the Army Sta may withhold from dis- closure any such report or portion thereof, in his opinion, its disclosure is not in the interest of the security of the State.

In the event of the explanation of the o cer being considered un- satisfactory by the Chief the Army Sta , or when so directed by the Central Government, the case shall be submitted to the Central Govern- ment with the o cer's defence and the recommendation of the Chief of the Army Sta s to the termination of the o cer's service in the manner speci ed in sub-rule (4).

(3) Where, upon the conviction of an o cer by a criminal court, the Central Government or the Chief of the Army sta considers that the conduct of the o cer which has led to his conviction renders his further re- tention in service undesirable, a cer- ti ed copy of the judgment of the criminal court convicting him shall be submitted to the Central Gov- ernment with the recommendation of the Chief of the Army Sta as to the termination of the o cer's n service in the manner speci ed in sub-rule

(4). (4) When submitting a case to the Central Government under the provisions of sub-rule (2) or sub-rule (3), the Chief of the Army Sta shall make his recommendation whether the o cer's service should be termi- nated, and if so, whether the o cer should be-

(a) dismissed from the service; or

164Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985

(b)removed from the service; or Respondent by a court martial was

(c)called upon to retire; or inexpedient or impracticable as in

(d) called upon to resign. fact the Respondent had been tried
by a court martial. It was also sub-
(5) The Central Government af-
mitted that on a true construction
ter considering the reports and the of Rule 14, the Central Government
o cer's defence, if any, or the judg- or the Chief of the Army Sta has
ment of the criminal court, as the an initial option to have the o cer
case may be, and the recommenda- tried by a court martial or to take ac-
tion of the Chief of the Army Sta , tion against him under Rule 14 and
may dismiss or remove the o cer if it were decided that he should be
with or with out pension or call upon tried by a court martial, then action
him to retire or resign, and on his under Rule 14 was not permissible
refusing to do so, the o cer may be in case of his acquittal by the court
compulsorily retired or removed from martial. To test the correctness of
the service on pension or gratuity, these submissions, we must examine
if any, admissible to him." We are the provisions of the Army Act relat-
not concerned in this Appeal with a ing to court martial. Section 108 pro-
case where an o cer has been con- vides for four kinds of courts- mar-
victed by a criminal court or with a tial, namely.  
case where the Central Government (1) general courts martial;
is satis ed that it is not expedient
(2) district courts martial;
or reasonably practicable to give to
     
the o cer an opportunity of show- (3) summary general courts mar-
ing cause.A show cause notice was tial; and    
in fact issued to the Respondent by (4) summary courts martial.
the Chief of the Army Sta . Under
As the Respondent was tried by
sub-rule (2) of Rule 14, the founda-
a general court martial, we are not
tion of the jurisdiction of the Central
B, Government or the Chief of the concerned here with any other type
Army Sta to issue a show cause no- of courts- martial, Under section 109,
tice is the satisfaction of the Central a general court martial may be con-
Government or the Chief of the Army vened by the Central Government or
Sta after considering the reports of the Chief of the Army Sta or by
an o cer's misconduct that the trial any o cer empowered in that be-
OF the o cer by a court martial is half by warrant of the Chief of the
inexpedient or impracticable and the Army Sta . Section 113 provides
opinion formed that the further re- that a general court martial shall
tention of the o cer in the service is consist of not less than ve o cers,
undesirable. each of whom has held a commis-
sion for not less than three whole
The contention before us was
years and of whom not less than four
that in the circumstances of this case are of a rank not below that of cap-
it cannot be said that the trial of the tain. Section 117 provides for cases

165

in which a court martial can be dis- solved. These cases are:

(1) Where after the commence- ment of a trial the court martial is reduced below the minimum number of o cers required by the Army Act. In such a case the dissolution of the court martial is mandatory. (2) If, on account of the illness of the judge- advocate or of the accused before thending, it is impossible to continue the trial. In this case also the disso- lution of the court martial is manda- tory.

(3) If it appears to the o cer who convened a court martial that mili- tary exigencies or the necessities of discipline render it impossible or in- expedient to continue the court mar- tial. In this case, the dissolution of the court martial is discretionary.

Sub-section (4) of section 117 ex- pressly provides that where a court martial is dissolved, the accused may be tried again. Section 118 ' con- fers upon a general court martial the power to try any person subject to the Army Act for any o ence pun- ishable thereunder and to pass any sentence authorized thereby.

Section 121 provides as follows:

"121. Prohibition of second trial.-

When any person subject to this Act has been acquitted or convicted of an o ence 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 o ence by a court martial or dealt with under the said sections."

The Respondent was neither tried by a criminal court nor dealt with under any of the sections 80, 83, 84 and 85, most of which do not ap- ply to an o cer of his rank- He was, however, tried by a general court martial which found him not guilty of any of the charges made against him. Under section 125, where a criminal court and a court martial both have jurisdiction in respect of an o ence, it is in the discretion of the o cer commanding the army, army crops, division or independent brigade in which the accused person is serving or such other o cer as may be pre- scribed by the Army Rules to decide before which court the proceedings shall be instituted. Under section 127, a person convicted or acquitted by a court martial may, with the pre- vious sanction of the Central Gov- ernment, be tried again by a crimi- nal court for the same o ence or on the same facts. There is, however, no provision for the trial by a court martial for the same o ence or on the same facts where a person has been convicted or acquitted by a criminal court. Sections 153, 154 and 160(1) provide as follows:

"153. Finding and sentence not valid, unless con rmed.-

No nding or sentence of a gen- eral, district or summary general, court martial shall be valid except so far as it may be con rmed as pro- vided by this Act.

"154. Power to con rm nd- ing and sentence of general court martial.-

The ndings and sentences of

166 Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985

general courts martial may be con-rmed by the Central Government, or by any o cer empowered in this behalf by warrant of the Central Government.

"160. Revision of nding or sentence,-

(1) Any nding or sentence of a court martial which requires con r- mation may be once revised by or- der of the con rming authority and on such revision, the court, if so di- rected by the Con rming authority, may take additional evidence.

In this connection it will also be relevant to set out the provisions of Rules 68, 69, 70 and 11 of the Army Rules. These Rules provide as fol- lows:

`68. Revision. (1) Where thending is sent back for revision un- der section 160, the Court shall re- assemble in open court, the revision order shall be read, and if the court is directed to take fresh evidence, such evidence shall also be taken in open court. The court shall then deliber- ate on its nding - in closed court.

(2) Where the nding is sent back for revision and the court does not adhere to its former nding, it shall revoke the nding and sentence, and record the new nding, and if such new nding involves a sentence, pass sentence afresh.

(3) Where the sentence alone is sent back for revision, the court shall not revise the nding. (4) After the revision, the presiding o cer shall date and y sign the decision of the court, and the proceedings, upon be- ing signed by the judge- advocate, if

any, shall at once be transmitted for con rmation.

"69. Review of court martial proceedings.- The proceedings of a general court martial shall be sub- mitted by the judge advocate at the trial for review to the deputy or as- sistant judge advocate general of the command who shall then forward it to the con rming o cer. The pro- ceedings of a district court martial shall be sent by the presiding of-cer or the judge- advocate direct to the con rming o cer who must, in all cases. where the sentence is dismissal or above, seek advice of the deputy or assistant judge advo- cate general of the command before con rmation." "70. Con rmation- Upon receiving the proceedings of a general or district court martial, the con rming authority may con-rm or refuse con rmation, or re- serve con rmation for superior au- thority, and the con rmation, non- con rmation, or reservation shall be entered in and form part of the pro- ceedings." "71. Promulgation-The charge, nding, and sentence, and any recommendation to mercy shall, together with the con rmation or non-con rmation of the proceedings, be promulgated in such manner as the con rming authority may direct; and if no direction is given, accord- ing to the custom of the service. Un- til promulgation has been e ected, con rmation is not complete and thending and sentence shall not be held to have been con rmed until they have been promulgated."

It is pertinent to note that under Section 160 the con rming authority

167

has the power to direct a revision of the nding of a court martial only once. There is no power in the con-rming authority, if it does not agree with the nding on revision, to direct a second revision of such nding. In the absence of any such con rmation, whether of the original nding or of the nding on revision, by reason of the provisions of section l 53 the nd- ing is not valid. Therefore, in the case of the Respondent, the nding of the general court martial on revision not having been con rmed was not valid. Could he, therefore, be tried again by another court martial on the same charges ? Under Section 121, a person subject to the Army Act, who has been acquitted or convicted of an o ence by a court martial or by a criminal Court, is not liable to be tried again for the same o ence by a court martial. It can well be argued that by reason of the provisions of section 153 under which no nding or sentence of a general, district or sum- mary general court martial is valid except in so far as it is con rmed as provided by the Army Act a per- son cannot be said to have been ac- quitted or convicted by a court mar- tial until the nding of "guilty" or "not guilty" in his case has been con-rmed by the con rming authority. There is, however, no express pro- vision in the Army Act which em- powers the holding of a fresh court martial when the nding of a court martial on revision is not con rmed. The decisions of three High Courts may be referred to in this connec- tion. The rst decision is that of Allahabad High Court in G.B. Singh v. Union of India and Others. (1)

That was a case under the Air Force Act, 1950 (Act No. 45 of 1950). In that case, the o cer was found guilty by a general court martial and sen- tenced ,. to be dismissed from ser- vice. The nding and sentence was referred to the con rming authority. The con rming authority passed an order reserving the same for con r- mation by superior authority and for- warded the proceedings to the Chief Of the Air Sta . The Chief of the Air sta passed an order not con rming the nding or sentence awarded by the court martial. The nding and sentence which were not con rmed by the Chief of Air Sta were pro- mulgated after the lapse of about ten months.A fresh general court mar- tial was convened to retry the o ce. On enquiry the o cer was informed that the ndings and sentence of the general court martial had not been con rmed as it was found that the proceedings were not in order and, therefore, there was no valid order convicting or acquitting the o cer. After considering the relevant provi- sions of the Air Force Act and the Air Force Rules, 1969, which are in pari materia with the corresponding provisions of the Army Act and the Army Rules, a learned Single Judge of the Allahabad High Court held that the e ect of non-con rmation was that though the nding and sen- tence passed by the court martial ex- isted, they could not be put into ef- fect unless they had been con rmed under the provisions of the Air Force Act, and that in such a case section 120 of the Air Force Act (which is in pari materia with section 121 of the Army Act) barred a second trial by

168 Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985

a court martial. In Major Manohar Lal v. The Union of India and Anr. (1) the petitioner was tried by a general court martial which found him not guilty. The General O cer Commanding-in-Chief held the pro- ceedings to be null and void on the ground that one of the members of the court martial was of the rank of Captain and was thus lower in the rank to the petitioner and no cer- ti cate had been recorded by the of-cer convening the court martial as required by Rule 40(2) of the Army Rules, that an o cer of the rank of the petitioner was not available and he, therefore, ordered a retrial.A learned Single Judge of the Punjab and Haryana High Court held that under the Army Act and the Army Rules, a Captain was eligible to be made a member of a general court martial and the mere fact that the convening o cer did not append the certi cate that an o cer of the rank of the petitioner was not available did not make the constitution of the gen- eral court martial invalid or the nd- ing given by it to be without juris- diction or the proceedings of the trial before it to be null and void. He fur- ther held that as the petitioner had no say in the constitution of the gen- eral court martial and had su ered the trial before it, the proceedings could not have been declared null and void on a highly technical ground. The learned Single Judge, therefore. came to the conclusion that the sec- ond trial of the petitioner was with- out jurisdiction and the sentence im- posed upon him in consequence of that trial was wholly illegal. In J.C. 13018 Subedar Surat Singh v.

The Chief Engineer Projects (Bea- con). Co. 56 A.P.O. (1).A Divi- sion Bench of the Jammu and Kash- mir High Court held that though ev- ery nding of a general court martial, whether of acquittal or of guilt, can- not be recorded as valid unless it is con rmed by the competent author- ity, the Legislature could not have reasonably intended that an o cer convening a general court martial can go on dissolving such court martials and reconstituting them ad in nitum until he obtained a verdict or a nd- ing of his own liking. The Division Bench further held that such a posi- tion would not only be against public policy and the ancient maxim "nemo debet bis vexari pro una et eadem causa" (no man ought to be twice vexed for one and the same cause) but would also reduce the provisions of the Army Act to a mockery and give an appearance of mala des. Ac- cording to the Jammu and Kashmir High Court, in such a case the proper course for the con rming authority would be to refer the case to its su- perior authority for con rmation.

This being the position, what then is the course open to the Cen- tral Government or the Chief of the Army Sta when the nding of a court martial even on revision is per- verse or against the weight of evi- dence on record? The High Court in its judgment under appeal has also held that in such a case a fresh trial by another court martial is not per- missible. The crucial question, there- fore, is whether the Central Govern- ment or the Chief of the Army Sta can have resort to Rule 14 of the

169

Army Rules. Though it is open to the Central Government of the Chief of the Army Sta to have recourse to that Rule in the rst instance with- out directing trial by a court mar- tial of the concerned o cer, there is no provision in the Army Act or in Rule l 4 or any of the other rules of the Army Rules which prohibits the Central Government or the Chief of the Army Sta from resorting in such a case to Rule 14. Can it, however, be said that in such a case a trial by a court martial is inexpedient or impracticable? The Shorter Oxford English Dictionary, Third Edition, de nes the word "inexpedient" as meaning "not expedient; disadvanta- geous in the circumstances, unadvis- able, impolitic". The same dictio- nary de nes "expedient' inter alia as meaning "advantageous; t, proper, or suitable to the circumstances o the case". Webster's Third New Interna- tional Dictionary also (1) A.I.R. 1970 J. & K, 179. de nes the term "expe- dient" inter alia as meaning "char- acterized by suitability, practicality, and e ciency in achieving a particu- lar end: t, proper, or advantageous under the circumstances".

In the present case, the Chief of the Army Sta . had, on the one hand, the nding of a general court martial which had not been con-rmed and the Chief of the Army Sta was of the opinion that the fur- ther retention of the Respondent in the service was undesirable and, on the other hand, there were the above three High Court decisions and the point was not concluded by a de ni-

tive pronouncement of this Court. In such circumstances, to order a fresh trial by a court martial could cer- tainly be said to be both inexpedient and impracticable and the only expe- dient and practicable course, there- fore, open to the Chief of the Army Sta would be to take action against the Respondent under Rule 14, which he did. The action of the Chief of the Army Sta in issuing the impugned notice was, therefore, neither with- out jurisdiction nor unwarraned in law. In the result, this Appeal must succeed and is accordingly allowed and the judgment of the Division Beach of the Allahabad High Court under Appeal is reversed and the or- der passed by it is set aside. The writ petition led by the Respondent in the Allahabad High Court, namely, Civil Miscellaneous Writ No. 84 of 1977, is hereby dismissed. Before parting with this Appeal, we would like to observe that the alleged in- cidents in respect of which the Re- spondent was tried before the general court martial took place nearly ten years ago. We, therefore, feel that the Chief of the Army Sta should take into account the conduct and behaviour of the Respondent during the intervening period and if they have been in conformity with good order and military discipline and the high traditions of the Indian Army, he may consider the desirability of proceeding further in the matter.

In the circumstances of the Case, there Will be no order as to costs throughout.

S. R. Appeal allowed,

170 Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985

Chapter 11

Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy Choudhury 1986

Supdt. & Remembrancer Of Le- 1986 AIR 1655 1986 SCR (3) 113
gal ... v. Usha Ranjan Roy Choud- 1986 SCC Supl. 190 JT 1986 363
hury & Anr on 21 May, 1986
1986 SCALE (1)931  
Equivalent citations: 1986 AIR  
ACT:  
1655, 1986 SCR (3) 113  
Criminal Courts and Court Mar-
Bench: Thakkar, M.P.
tial (Adjustment of Jurisdiction)
PETITIONER:
Rules, 1952, Rules 3 and 4-O ences
 
SUPDT. & REMEMBRANCER falling within purview of section 52 of
OF LEGAL AFFAIRS, WEST BEN- Army Act, 1950-Trial by Magistrate-
GAL Procedure to be followed-'Special
v. Judge', whether deemed to be a Mag-
istrate.  
RESPONDENT:  
Criminal Law (Amendment) Act,
USHA RANJAN ROY CHOUD-
1952. Section 8(3A). 'Special Judge'-
HURY & ANR. Whether deemed to be a Magistrate
DATE OF JUDGMENT21/05/1986
for Trial of o ences under section 52
BENCH: of the Army Act, 1950.  
THAKKAR, M.P. (J) HEADNOTE:  
BENCH: The three respondents-accused
THAKKAR, M.P. (J) were charged with o ences which fell
within the scope of section 52 of
ERADI, V. BALAKRISHNA (J)
the Army Act of 1950. The ordi-
CITATION: nary criminal court and the Court
 
  Martial both had concurrent jurisdic-
  Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
172 Choudhury 1986

tion to try the said o ences. They were tried by the Judge presiding over the Fourth Addl. Special Court, Calcutta. The learned Trial Judge, while convicting one of the respon- dents and acquitting the remaining two, failed to follow the procedure prescribed by the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 framed un- der Section 549(1) of the Code of Criminal Procedure of 1898. The High Court, in appeal, took the view that the learned Judge presiding over the Special Court had acted with- out jurisdiction in taking cognizance of the case and proceeding with the trial of three Army o cers resulting in the conviction of one of them, and the acquittal of the remaining two and quashed the proceedings. Dis- missing the appeals, by the State,

HELD: 1. The High Court was right in allowing the appeal of the of-cer who was convicted and dismiss- ing the appeal of the State calling into question the acquittal of the re- maining two. However, the acquittal rendered by the High Court is on the ground of lack of jurisdiction on the part of the learned Special Judge who tried the case in the Special Court and not on merits. The expression 'acquitted' has been employed by the High Court though it was su cient to say no more than this, 'that the order of conviction and sentence was without jurisdiction and was there- fore being quashed'. In the eye of law, it is not an acquittal since it is not on merits. It is, therefore, for the competent authority to de- cide whether or not to subject the

accused to a fresh trial after follow- ing the procedure prescribed by the Rules. [125D-F]

2.1 In order to avoid any con ict of jurisdiction between the criminal court and the court martial in regard to o enders who are charged with having committed o ences which fall under the purview of Section 52 of the Army Act, 1950, Section 549(1) of Cr.P.C. provides that Central Government may make Rules con- sistent with Cr.P.C. and the Army Act. In pursuance of this provision contained in Section 549(1), Cr.P.C., the Central Government has framed Rules known as Criminal Courts and Court Martial (Adjustment of Juris- diction) Rules 1952. [117H; 118A-B] 2.2 Rule 3 of the Rules requires that when a person subject to military, Naval or Air Force law is brought before a Magistrate on accusation of an o ence for which he is liable to be tried by Court Martial also, the magistrate shall not proceed with the case unless he is requested to do so by the appropriate military author- ity. A combined reading of rules 3 and 4 shows that in case the Magis- trate is of the opinion that he should proceed with the case without there being any such request from the ap- propriate military authority, the con- cerned Magistrate is enjoined to give notice to the commanding o cer in this behalf. Till the expiry of seven days from the service of such no- tice on the commanding o cer, the Magistrate is prohibited from mak- ing any order of conviction or acquit- tal or framing any charges or com- mitting the accused. Therefore, the

173

ordinary criminal court would have no jurisdiction to take cognizance of the case and to try the accused in a matter where the procedure pre- scribed by the Rules has not been complied with. The initial lack of jurisdiction to take cognizance and try the case would, of logical neces- sity, vitiate the trial and the order of conviction and sentence would be li- able to be quashed as a result thereof. [118B-F]

In the instant case, admittedly the procedure prescribed by the Rules was not followed. Under the circumstances it is futile to contend that the Army authorities had vol- untarily abandoned their option to try the accused person in the court martial. There is no substance in the plea and it has been rightly repelled by the High Court.[123D-E]

Delhi Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya. [1973] (1)SCR 1010 relied upon.

Major E.G. Barsay v. The State of Bombay [1962] (2) SCR 195 re- ferred.

3.1 Section 13 of the West Ben- gal Criminal Law Amendment (Spe- cial Courts) Act, 1949 in terms ac- cords recognition to the applicability of the Criminal Law (Amendment) Act of 1952 enacted by the Parlia- ment except and save some of the sec- tions, namely, sections 6,7,8,9 and 10 thereof which, as provided in Section 13, shall not apply and shall be never deemed to have applied to West Ben- gal. It is implicit in Section 13 of the West Bengal Act that the Central Act, namely, Criminal Law (Amend-

ment) Act of 1952 is applicable to the State of West Bengal except and save the aforesaid ve sections. There can be no doubt or debate about this position having regard to the fact that criminal law is a subject which falls under the concurrent list and the Criminal Law (Amendment) Act of 1952 enacted by the Parlia- ment is applicable subject to incon- sistency, if any, between the said Act and the West Bengal Act. Moreover, the West Bengal Act does not con- tain any provision pertaining to per- sonnel governed by the Army Act. It is altogether silent in regard to the matter pertaining to the procedure to be followed in regard to Army per- sonnel from the perspective of Sec- tion 549 Cr.P.C. and the rules framed under the authority thereof. There is thus no con ict between the Criminal Law (Amendment) Act of 1952 and the West Bengal Act in so far as this matter is concerned. Such being the position the provision contained in Criminal Law (Amendment) Act of 1952 with a special eye on the proce- dure to be followed in Section 8(3A) and Section 11 of the Criminal Law (Amendment) Act of 1952 will oper- ate in this sphere without any let or hindrance. And inasmuch as Section 8(3A) in terms provides that the pro- vision of Section 549 Cr.P.C. shall so for as may be applied to the proceed- ing before the Special Judge and that for the purposes of that provision a Special Judge shall be deemed to be a Magistrate, the said provisions re- main fully alive and una ected by the West Bengal Act. [124C-H; 125A]

JUDGMENT:

  Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
174 Choudhury 1986

CRIMINAL APPELLATE JU- RISDICTION: Criminal Appeal Nos. 170 and 171 of 1977

From the Judgment and Order dated 29th May, 1975 of the Calcutta High Court in Criminal Appeal No. 308 of 1972 and Govt. Appeal No. 5 of 1973. D.P. Mukherjee and G.S. Chatterjee for the Appellant. Rathin Dass and Pankaj Kalra for the Re- spondents. The Judgment of the Court was delivered by THAKKAR, J. The validity of the trial of three Army O cers is in question.

The High Court has taken the view that the learned Judge presid- ing over the Special Court had acted without jurisdiction in taking cog- nizance of the case and proceeding with the trial of three Army O - cers resulting in the conviction of one of them, and the acquittal of the remaining two and has quashed the proceedings. The question which calls for determination in these two allied appeals by special leave pre- ferred by the State of West Bengal is whether the High Court was right in doing so. The following facts are not in dispute:

(1)Three accused persons who were tried by the Judge presiding over the Fourth Addl. Special Court, Calcutta (hereinafter referred to as the learned Trial Judge for the sake of brevity) were Army O cers. They were charged with o ences in respect of which the ordinary Criminal Court and the Court Martial both had con- current jurisdiction.

(2)The Learned Trial Judge had failed to follow the procedure pre-

scribed by the Criminal Courts and Court Martial (Adjustment of Juris- diction) Rules, 1952 (referred to as Rules hereinafter) framed under Sec- tion 549 (1) of the Code of Criminal Procedure of 1898 (Cr.P.C.)

The following contentions were urged before the High Court on be- half of the State with a view to substantiate the contention that the learned Trial Judge had jurisdiction to take cognizance of the case and that the trial was not null and void notwithstanding the fact that the procedure prescribed by the Rules had not been followed. (1) The rules framed under Section 549(1) of Cr.P.C. were not attracted inasmuch as the rules applied to Magistrates and not to a Judge presiding over a Special Court.

(2)Having regard to the provi- sion contained in section 122 of the Army Act, 1950, which prescribes a period of limitation of three years, which period had already elapsed during the pendency of the proceed- ings in the High Court, the Court Martial would have no jurisdiction to try the accused and that the trial held by the learned Trial Judge could not be said to have been vitiated in view of this circumstance.

(3)In view of a letter addressed by the Brigadier of the Division con- cerned to the Police O cer for inves- tigating the o ences, it can be said by necessary implication that the Army authorities had opted for the trial of the case by the ordinary Civil Court.

The High Court repelled all the three contentions, allowed the ap-

175

peal of the o cer who was convicted, and dismissed the appeal of the State calling into question the acquittal of the remaining two.

Besides reiterating the same three contentions before this Court, learned counsel for the appellant has raised a new point which was not urged before the High Court. We propose to deal with the submis- sions which were urged in the High Court before coming to grips with the new point sought to be raised by the learned counsel for the appel- lant State. For a proper apprecia- tion of the rst point, a quick look at the statutory provisions and the position emerging therefrom is called for. In regard to the o ences which fall within the purview of Section 70 of the Army Act of 1950, an o ender can be tried only by Court Martial whereas in regard to o ences falling within the purview of Section 52 of the said Act, the o ences can be tried both by the ordinary criminal court as also by the Court Martial both of which have concurrent juris- diction. The o ences with which the concerned accused were charged be- fore the learned Trial Judge were of- fences which fell within the scope of Section 52 of the Army Act of 1950 and accordingly the ordinary crimi- nal court as also the Court Martial had concurrent jurisdiction. In or- der to avoid any con ict of jurisdic- tion between the criminal court and the court martial in regard to of- fenders who are charged with hav- ing committed o ences which fall un- der the purview of Section 52 of the Army Act, 1950, Section 549(1)1 of

Cr. P.C. provides that Central Gov- ernment may make Rules consistent with Cr. P.C. and the Army Act. In pursuance of this provision contained in Section 549(1) Cr. P.C. the Cen- tral Government has framed Rules known as Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952. Rule 3 of the said Rules requires that when person subject to military, Naval or Air Force law is brought before a Magistrate on ac- cusation of an o ence for which he is liable to be tried by Court Martial also the magistrate shall not proceed with the case unless he is requested to do so by the appropriate military authority. On a combined reading of rules 3 and 4/2, it is evident that in case the Megistrate is of the opin- ion that he should proceed with the case without there being any such re- quest from the appropriate military authority, the concerned Magistrate is enjoined to give notice to the com- manding o cer in this behalf. Till the expiry of seven days from the ser- vice of such notice on the command- ing o cer, the Magistrate is prohib- ited from making any order of con- viction or acquittal or framing any charges or committing the accused. 1 "The Central Government may make rules, consistant with this Code and the Army Act, the Naval Discipline Act and the Indian Navy (Discipline) Act, 1934 and the Air Force Act and any similar law for the time being in force, as to the cases in which persons subject to military, naval or air-force law shall be tried by a Court to which this Code applies, or by court mar- tial; and when any person is brought before a Magistrate and charged with

  Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
176 Choudhury 1986

an o ence for which he is liable to be tried either by a Court to which this Code applies, or by a court martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a state- ment of the o ence of which he is accused, to the commanding o cer of the regiment, corps, ship or de- tachment to which he belongs, or to the commanding o cer of the near- est military, naval, or air-force sta- tion, as the case may be for the pur- pose of being tried by the Court Mar- tial."

2. "3. Where a person subject to military, naval or Air Force law is brought before a Magistrate and charged with an o ence for which he is liable to be tried by a court mar- tial, such magistrate shall not pro- ceed to try such person or to issue orders for his case to be referred to a Bench, or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any o ence triable by such Court, unless

(a)he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military, naval or Air Force Authority, or

(b)he is moved thereto by such authority.

It is in the background of these provisions that the High Court has taken the view that compliance with the procedure prescribed by the Rules is a mandatory requirement and that any proceedings undertaken by the learned Trial Judge with-

out compliance with the aforesaid mandatory procedure would vitiate the trial before the ordinary crim- inal court and the entire proceed- ings would be rendered null and void. Faced with this situation, counsel for the State contended before the High Court that the procedure embodied in Section 549(1) of the Cr. P.C. and Rules framed thereunder were applicable only to the court presided over by a magistrate and not to a Judge presiding over a Special Court. This contention was negatived by the High Court. And it has now been reiterated before us, it being an ad- mitted position that the prescribed procedure has not been followed by the learned trial judge in the case giving rise to the present appeals. This argument was possibly inspired by a point debated in Major E.G. Barsay v. The State of Bombay. [1962] (2) S.C.R. 195. The view was taken therein that inasmuch as the aforesaid Rules refer to a Mag- istrate the Rules were not attracted with regard to a trial before a Spe- cial Judge. It was presumably on ac- cout of this decision that the Crim- inal Law (Amendment) Act of 1952 was amended by incorporating Sec- tions 8 (3A) and 11, reading as un- der: Section 8(3A): In particular, and without prejudice to the general- ity of the provisions contained in sub- section (3), the provisions of Sections 350 and 549 of the Code of Criminal Procedure, 1898 shall, so far as may be, apply to the proceedings before a Special Judge, and for the purposes of the said provisions a Special Judge shall be deemed to be a Magistrate.

177

Section 11: Military, naval and air force laws not to be a ected-

4. Before proceeding under clause (a) of rule 3 the Magistrate shall give written notice to the Com- manding O cer of the accused and until the expiry of a period of seven days from the date of the service of such notice he shall not

(a)Convict or acquit the accused under sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898(V of 1898), or hear him in his defence under section 244 of the said Code, or

(b)frame in writing a charge against the accused under section 254 of the said Code; or

(c)make an order committing the accused for trial by the High Court or the Court of Sessions under section

213of the said Code." 120

(1) Nothing in this Act shall af- fect the jurisdiction exercisable by, or the procedure applicable to, any Court or other authority under any military, naval or air-force law. This amendement was e ected by virtue of Central Act XXII of 1966. Having regard to the provision contained in Section 8 (3A) of the Criminal Law (Amendment) Act of 1952 as it now stands it is clear that a Sepcial Judge is deemed to be a Megistrate for the purposes of the Rules framed under Section 549 (1) of the Code of Crim- inal Procedure with the end in view to eschew the con ict between Court Martial on the one hand and the or- dinary criminal courts on the other. The High Court was therefore per- fectly justi ed in repelling this con-

tention urged on behalf of the ap- pellant State, albeit on a reasoning which is somewhat obscure. Con- fronted by this situation counsel for the appellant State has raised a new point to which a reference was made in the earlier part of the judgment. The new point which has been so raised is that Sections 8(3A) and 11 quoted hereinabove which were in- corporated by Central Act 11 of 1958 as further amended by Central Act XXII of 1966 were not applicable to the State of West Bengal from where the matter giving rise to the present appeals stems. Since no such argu- ment was advanced before the High Court, initially, we were reluctant to permit counsel to raise this new point. But having regard to the fact that it goes to the root of the mat- ter we have permitted counsel to urge this contention. We will however deal with it after exhausting all the points which were urged before the High Court.

The next point which was unsuc- cessfully urged before the High Court was in the context of Section 122 of the Army Act of 1950 which pre- scribes a period of limitation of three years. The High Court did not ac- cede to the submission in this behalf having regard to the law enunciated by this Court in Delhi Police Estab- lishment, New Delhi v. Lt. Col. Lo- raiya. [1973] (1) S.C.R. 1010. We are of the opinion that the High Court was right. This Court in the afore- said case has taken the view to the e ect that the question being essen- tially one of the initial jurisdiction of the ordinary criminal court on the

  Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
178 Choudhury 1986

one hand and the court martial on the other, unless the procedure pre- scribed by the rules is complied with the ordinary criminal court would not have initial jurisdiction in regard to the matter, as is evident from the following passage:

"It is an admitted fact in this case that the procedure speci ed in rule 3 was not followed by the Spe- cial Judge, Gauhati before framing charges against the respondent. Sec- tion 549 (1) Cr. P.C. and rule 3 are mandatory. Accordingly the charges framed by the Special Judge against the respondent cannot survive. But counsel for the appellant has urged before us that in the particular cir- cumstances of this case the respon- dent is not 'Iiable to be tried' by a Court Martial.

Section 122 (1) of the Army Act, 1950, provides that no trial by court martial of any person subject to the Army Act for any o ence shall be commenced after the expiry of the period of three years from the date of the o ence. The o ences are al- leged to have been committed by the respondent in November-December, 1962. So more than three years have expired from the alleged commission of the o ence. It is claimed that hav- ing regard to Sec. 122(1), the respon- dent is not liable to be tried by court martial.

This argument is built on the phrase "is liable to be tried either by the court to which this Code ap- plies or by a Court Martial" in sec- tion 549(1). According to counsel for the appellant this phrase cannotes that the ordinary criminal court as

well as the court martial should not only have concurrent initial jurisdic- tion to take cognizance of the case but should also retain jurisdiction to try him up to the last stage of con- viction or acquittal. We are unable to accept this construction of the phrase.

As regards the trial of o ences committed by Army men, the Army Act draws a threefold scheme. Cer- tain o ences enumerated in the Army Act are exclusively triable by a Court Martial; certain other of- fences are exclusively triable by the ordinary criminal courts; and certain other o ences are triable both by the ordinary criminal court and the court martial. In respect of the last cate- gory both the Courts have concur- rent jurisdiction. Section 549 (1) Cr. P.C. is designed to avoid the con ict of jurisdiction in respect of the last category of o ences. The clauase "for which he is liable to be tried either by the Court to which this Code ap- plies or by a court martial" in our view, quali es the preceding clause "when any person is charged with an o ence" in s. 549 (1). Accordingly the phrase "is liable to be tried ei- ther by a court to which this Code applies or a court martial" imports that the o ence for which the accused is to be tried should be an o ence of which cognizance can be taken by an ordinary criminal court as well as a court martial. In our opinion, the phrase is intended to refer to the initial jurisdiction of the two courts to take cognizance of the case and not to their jurisdiction to decide it on merits. It is admitted that both

179

the ordinary criminal court and the court martial have concurrent juris- diction with respect to the o ences for which the respondent has been charged by the Special Judge. So, s. 549 and the rules made thereun- der are attracted to the case at hand" Having regard to the enunciation of law to this e ect it is evident that the ordinary criminal court would have no jurisdiction to take cognizance of the case and to try the accused in a matter where the procedure pre- scribed by the Rules has not been complied with. The initial lack of jurisdiction to take cognizance and try the case would of logical neces- sity vitiate the trial and the order of conviction and sentence would be li- able to be quashed as a result thereof. We are therefore unable to accede to the submission urged on behalf of the appellant State that even if the rules are applicable, having regard the fact that more than three years have ex- pired from the date of the commis- sion of the alleged o ence, the trial is not vitiated.

The last contention raised before the High Court was that having re- gard to the fact that the investigation which preceded the lodging of the complaint before the learned Trial Judge was commenced in pursuance of a letter written by the Brigadier of the Division, which contained a re- quest for investigation by the Police into alleged o ences, it can be said that the Army authorities had opted for the trial of the accused person by the ordinary criminal court. The ar- gument was that by necessary impli- cation this would follow as a logical

corollary. The High Court brushed aside this contention as untenable, taking into account the contents of the letter in question. The said let- ter was in the following terms:

"Dear Sir,

(1)Please refer to Memo No. 8940 dated August 28, 1963 from Shri R.K. Bhattacharyya, Superin- tendent of Police, D.E.B., Darjeeling.

(2)At appendix 'A' please nd

acopy of the investigation that had been carried by us. We request you to take over the case and submit your detailed report to us at your earliest convenience."

The High Court relied on the fact that the Army had called for a detailed report by the Police which would show that the Army authori- ties had not taken any such decision either expressly or by necessary im- plication. Counsel for the appellant has not been able to press this point with any vigour for the obvious rea- son that it relates to the stage of in- vestigation preceding the complaint. The question regarding exercise of ju- risdiction by the court martial would arise only after the investigation was completed and the police report was available. What is more, it is only after the prescribed procedure under Rules 3 and 4 of the Rules is resorted to by the ordinary criminal court that the question of exercising an op- tion can arise. In the present matter, admittedly the procedure prescribed by the Rules was not followed. Un- der the circumstances it is futile to contend that the Army authorities had voluntarily abandoned their op-

  Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
180 Choudhury 1986

tion to try the accused person in the court martial. There is no substance in the plea and it has been rightly repelled by the High Court.

At long last, we come to the last point, the point which was not urged before the High Court but which we have permitted the learned coun- sel for the State to raise before us. It is argued that the Criminal Law (Amendment) Act of 1952 was not applicable to the State of West Ben- gal inasmuch as the State of West Bengal had enacted an Act of its own known as West Bengal Criminal Law Amendment (Special Courts) Act, 1949 which was in operation throughout the whole of West Ben- gal. No doubt it is true that Criminal Law is a subject which falls within the scope of Entry 1 of List III (con- current list) embodies in 7th Sched- ule to the Constitution of India. The Union Government as well as the State Government both can there- fore legislate in regard to criminal law. The contention that the Crimi- nal Law (Amendment) Act, 1952 en- acted by the Parliament of India is not applicable to the State of West Bengal is altogether misconceived. It is necessary to advert to the legisla- tive history for a proper appreciation of the point at issue. In 1938 the Government of India had enacted the Criminal Law (Amendment) Act of 1938. In 1949 the State of West Ben- gal 124

introduced the State legislation being the West Bengal Criminal Law Amendment (Sepcial Courts) Act, 1949 (West Bengal Act). This Act was further amended after the en-

forcement of the Constitution of In- dia by incorporating Section 13 in 1953-3. The said Section 13 has great signi cance from the stand point of the present argument: "Certain Sec- tions of Act XLVI of 1952, not to ap- ply to West Bengal:

13. Sections 6, 7, 8, 9 and
10 of the Criminal Law Amendment

Act, 1952 shall not apply and shall be deemed never to have applied to West Bengal." It will thus be seen that Section 13 of the West Ben- gal Act in terms accords recognition to the applicability of the Criminal Law (Amendment) Act of 1952 ex- cept and save some of the sections namely sections, 6, 7, 8, 9 and 10 thereof which as provided in Section 13 shall not apply and shall be never deemed to have applied to West Ben- gal. It is implicit in Section 13 of the West Bengal Act that the Central Act namely Criminal Law (Amend- ment) Act of 1952 is applicable to the State of West Bengal except and save the aforesaid ve sections. There can be no doubt or debate about this position having regard to the fact that criminal law is a subject which falls under the concurrent list and the Criminal Law (Amendment) Act of 1952 enacted by the Parlia- ment is applicable subject to incon- sistency, if any, between the said Act and the West Bengal Act. So far as the coverage of the present point is concerned, there is no such inconsis- tency. The West Bengal Act does not contain any provisions pertaining to personnel governed by the Army Act. It is altogether silent in re- gard to the matter pertaining to the

181

procedure to be followed in regard to Army personnel from the perspec- tive of Section 549 Cr. P.C. and the rules framed under the author- ity thereof. There is thus no con ict between the Criminal Law (Amend- ment) Act of 1952 and the West Ben- gal Act in so far as this matter is concerned. Such being the position the provisions contained in Criminal Law (Amendment) Act of 1952 with a special eye on the procedure to be followed in Section 8(3A) and Sec- tion 11 of the Criminal Law (Amend- ment) Act of 1952 will operate in this sphere without any let or hindrance. And inasmuch as Section 8(3A) in terms provides that the provision of Section 549 Cr. P.C. shall so far as may be applied to the proceeding be- fore the Special Judge

3. This section was added by Sec- tion 3 of the West Bengal Criminal Law Amendment (Special Courts) Amending Act of 1953 (West Ben- gal Act of 1953). and that for the purposes of that provision a Special Judge shall be deemed to be a Mag- istrate, the said provisions remain fully alive and une ected by the West Bengal Act. In view of this provi- sion the procedure prescribed by Sec- tion 549 Cr. P.C. read with the rules framed thereunder which have been quoted in the earlier part of the judg- ment will be applicable to a proceed- ing before a Special Judge in West Bengal as well. In so far as the Army personnel are concerned therefore the law governing them and the proce- dure required to be followed in their case would be the same in West Ben- gal as elsewhere in India as it should be. It may incidentally be mentioned

that in the West Bengal Act also the Judge presiding over the Spe- cial Court is called a Special Judge (vide Schedule to the West Bengal Act). He would therefore deemed to be a Magistrate for the Purposes of the Rules in view of Section 8(3A) of the Criminal Law (Amendment) Act of 1952. The mandatory proce- dure prescribed by the Rules is ac- cordingly obligatory even in respect of proceedings before a Special Court under the West Bengal Act. There is thus no substance in this point. We are of the opinion that this fee- ble and faint-hearted attempt is born out of desperation and deserves no more consideration. We have there- fore no hesitation in negativing this plea. No other point has been urged. The appeal must therefore fail. But before we write ' nis' it may be made clear that the acquittal rendered by the High Court is on the ground of lack of jurisdiction on the part of the learned Special Judge who tried the case in the Special Court and not on merits. The expression 'acquit- ted' has been employed by the High Court though it was su cient to say no more than this, that the order of conviction and sentence was without jurisdiction and was therefore being quashed. In the eye of law, it is not an acquittal since it is not on merits. It is thereore for the com- petent authority to decide whether or not to subject the accused to a fresh trial after following the proce- dure prescribed by the Rules. With these observations, we dismiss the appeal.

M.L.A. Appeal dismissd.

  Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
182 Choudhury 1986

Chapter 12

Union of India v. Maj S K Sharma 1987

UNION OF INDIA THROUGH petent Authority to hold an inquiry
MAJOR GENERALH.C. PATHAK for determining whether there is any
v. MAJOR S.K. SHARMA   case for trying the accusedIt must
PETITIONER: UNION OF IN- proceed to hold the Court Martial or
DIA THROUGH MAJOR GENER- take such other e ectual proceedings
ALH.C. PATHAK     as is contemplated by r. 7(1) of the
    Criminal Courts and Court Martial
v.      
      (Adjustment of Jurisdiction) Rules,
RESPONDENT: MAJOR S.K.
1978.  
SHARMA       HEADNOTE: An o cer in the
DATE OF JUDGMENT29/06/1987
Army led a complaint before a
BENCH: PATHAK, R.S. (CJ) Magis- trate alleging that another
BENCH: PATHAK, R.S. (CJ) o cer has assaulted him, that the
KHALID, V. (J)     Commanding O cer to whom he had
CITATION: 1987 AIR 1878 1987 complained earlier had failed to take
SCR (3) 456 1987 SCC (3) 490 JT satisfactory action and thus both of
1987 (3) 12 1987 SCALE (2)12   them had committed o ences under
  the Indian Penal Code. The Magis-
ACT: Criminal Procedure Code,
trate examined the complainant un-
1973S. 475Read with ss. 200 to 204 der s. 200 Cr. P.C., took cognizance
of the Code, and the provisions of of the o ences under s. 190(A) and,
the Army Act, 1950 and the Army on being satis ed of the existence
RulesWhen a Magistrate has taken of a prima facie case, issued sum-
cognizance of an o ence committed mons under s. 204(A) for the appear-
by a member of the Armed Forces ance of the accused. Upon applica-
and thereafter transferred the case tions being made by the appellants
for trial under the Army Act and the urging that the case be handed over
Rules, it is not open to the Com-    
           
184 Union of India v. Maj S K Sharma 1987

to the Military Authorities for dis- posal, the Magistrate made an order directing that the case be transferred to the Army Authorities for disposal in accordance with the provisions of the Army Act, 1950 after trial by a Court Martial at any place within the jurisdiction of his Court and that the progress of the case be reported to him at intervals of two months. Upon the appellants making further applications praying for review of the said order on the ground that un- der the Army Act and the Army Rules, it was not mandatory that all disciplinary cases against mili- tary personnel should culminate in a trial by Court Martial and sub- mitting that the disciplinary action against the o cers concerned would be initiated after an investigation of the alleged o ences, the Magistrate, pointing out that the judicial pro- cess for ascertaining the prima fa- cie existence of a case had already been completed, held that the trial of the accused by Court Martial was mandatory under s. 475 Cr. P.C. and, therefore, it was not permissi- ble for the Army Authorities to hold a preliminary investigation. How- ever, having regard to s. 127 of the Army Act, the Magistrate directed that the progress of the case be in- timated at intervals of four months. in the Revision led by the appel- lants, the High Court interfered with the order of the Magistrate insofar only that it deleted the direction re- quiring the Army Authorities to in- form the Magistrate of the progress of the case at intervals of four months and directed instead that the result of the Court Martial proceeding be

communicated to the Magistrate, as soon as may be, in accordance with r. 7 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. Dismissing the appeal by Special Leave, HELD: The Army Authority is not entitled to ignore the proceeding taken by the Magis- trate and to invoke the provisions of r. 22 and related rules of the Army Rules. The Magistrate having held that there is a case for trying the two accused o cers and having directed their appearance, the Army Author- ity must proceed to hold a Court Martial for their trial or take other e ectual proceedings against them as contemplated by the law. [468G-H]

(i) It is open to a Magistrate un- der ss. 200-203, Cr. P.C. to inquire into a complaint of an o ence alleged to have been committed by a mili- tary person, where it falls within his jurisdiction and to take proceedings for trial of the accused. Likewise, a duly constituted Army Authority has power under the provisions of r. 22 onwards of the Army Rules to inves- tigate into a charge against a mili- tary person accused of an o ence tri- able under the Army Act, and after such hearing to decide whether his trial by a Court Martial should be ordered. The provisions of the Army Rules run parallel to the provisions in the Cr. P.C. Inasmuch as there is always a possibility of the same of- fence being triable either by a Crim- inal Court or by a Court Martial, s. 475, Cr. P.C. empowers the Central Government to make rules as to cases in which persons shall be tried by a Court to which the Code applies or by a Court Martial, and the sec-

185

tion provides that whenever a person is brought before a Magistrate and charged with an o ence for which he is liable to be tried either by a Court to which the Code applies or by a Court Martial, such Magistrate must have regard to such rules and must, in proper cases, deliver the person to- gether with a statement of the o ence of which he is accused, to the Com- manding O cer of the unit to which he belongs for the purpose of being tried by a Court Martial. The lan- guage used in s. 475 is signi cant. It refers to a person who is brought be- fore a Magistrate and charged with an o ence. In other words, he must be a person respecting whom the Magistrate has taken the proceedings envisaged by ss. 200 to 204 of the Cede. He will be a person in respect of whom the Magistrate has found that there is a case for trial. It is for that reason that s. 475 goes on to say that when such person is delivered to the Commanding O cer of the unit to which he belongs, it will be for the purpose of being tried by a Court Martial. When he is so delivered, a statement of the o ence of which he is accused will also be delivered to the Commanding O cer. The rele- vance of deliv- ering such statement can be easily understood, for it is to enable the Army Authority to appre- ciate the circumstances in which a Court Martial is required by the law. [464C-D; 465E-H] (ii) It is clear from r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Juris- diction) Rules, 1978 framed under s. 475 of the Cr. P.C. that when the accused is made over by the Magis- trate under s. 5 or 6 thereof to the

competent military or other author- ity, it is for the purpose of trial by a Court Martial or other e ectual pro- ceedings to be taken or ordered to be taken against him inasmuch as the competent authority must, as soon as may be, inform the Magistrate, whether the accused has been tried by a Court Martial or other e ectual proceedings have been taken or or- dered to be taken against him and the communication of such informa- tion is mandatory. When the Mag- istrate is informed that the accused has not been tried or other e ectu- al proceedings have not been taken or ordered to be taken against him, he is obliged to report the circum- stances to the State Government and the State Government, in consulta- tion with the Central Government, may take appropriate steps to ensure that the accused person is dealt with in accordance with law. The policy of the law is clear. Once the Crim- inal Court determines that there is a case for trial, and pursuant to the aforesaid rule, delivers the accused to the competent military or other au- thority, the law intends that the ac- cused must either be tried by a Court Martial or some other e ectual pro- ceedings must be taken against him. [467B-E] (iii) The policy of our Con- stitutional Polity is that no person should be regarded as being above the law. Military, navel or air force personnel are as much subject to the law as members of the civil popu- lation. It is signi cant that r. 8 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 empowers the Magis- trate, on coming to know that a per-

186 Union of India v. Maj S K Sharma 1987

son subject to the military, naval or air force law or any other law relat- ing to the Armed Forces has commit- ted an o ence and proceedings in re- spect of which ought to be instituted before him and that the presence of such person cannot be procured ex- cept through military, navel or air force authorities, to require the Com- manding O cer of such person either to deliver such person to a Magis- trate for being proceeded against ac- cording to law or to stay the proceed- ings against such person before the Court Martial if since instituted, and to make a reference to the Central Government for determination as to the Court before which the proceed- ings should be instituted. [467G- H; 468A-B] (iv) Section 127 of the Army Act provides that a person convicted or acquitted by a Court Martial, may, with the previous sanc- tion of the Central Government, be tried against by a Criminal Court for the same o ence or on the same facts which is an exception to the rule con- tained in Art. 20 of the Constitu- tion that no person shall be prose- cuted and punished for the same of- fence more than once. It is to en- able the operation and application of s. 127 of the Act that r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 requires the competent military or other authority to inform the Mag- istrate whether the accused has been tried by a Court Martial or other ef- fectual proceedings have been taken against him. [468B-D] (v) Section 125 of the Army Act, which provides that when a Criminal Court and a Court Martial have each jurisdiction

in respect of an o ence, it will he in the discre- tion of the Command- ing O cer of the accused to decide before which Court the proceedings shall he instituted, is of no assis- tance in deciding whether it is open to the Army Authority to take pro- ceedings for determining prima facie whether there is substance in the al- legations made against the accused and decline to try him by a Court Martial or take other e ectual pro- ceedings against him even where a Magistrate has taken cognizance of the o ence and nds that there is a case for trying the accused. [468E- F] (vi) There is nothing in the pro- visions of the Army Rules relating to Courts of Inquiry which can support the contention that notwithstanding the proceeding taken by the Magis- trate it is open to the Army Author- ity to hold a Court of Inquiry and determine whether there is any case for trying the accused by a Court Martial. If, it is not open to the Army Authority to have recourse to r. 22 of the Army Rules and investi- gate the charge directed against the accused o cer in this case, for the same reason, it is not open to it to hold a Court of Inquiry and super- sede the proceeding already taken by the Magistrate. [469B-D]

JUDGMENT: CRIMINAL AP- PELLATE ORIGINAL JURISDIC- TION: Criminal Appeal No. 271 of 1987. From the Judgment and Or- der dated 3.7. 1986 of the Gauhati High Court in Crl. Revn. No. 229 of 1986. A.K. Ganguli, R.P. Srivastava, P. Purameswarn and Ashok K. Sri- vastava for the Appellant in Crl. A.

187

No. 271 of 1987 and Respondent in W.P. (Crl.) No. 664 of 1986. R.K. Jain, Gaurav Jain, Abha Jain and R.P. Singh for the Respondent in Crl. A. No. 271 of 1987 and Petitioner in W.P. (Crl.) No. 664 of 1986. The Judgment of the Court was deliv- ered by PATHAK, CJ. Special Leave is granted. The respondent Major S.K. Sharma addressed a letter dated 21 December 1985 to Brigadier S.S. Randhawa, Commander, HQ 41 Sub Area alleging that on 15 December, 1985 he was manhandled by Col. Mir Usman Ali in the HQ 41 Sub Area O cers Mess at Jorhat. It was stated that the incident took place in the presence of Major M.M. Subba- iah. Major Sharma was attached to B Camp. Signal Regiment while Col. Ali belonged to HQ 41 Sub Area. Brigadier Randhawa wrote to the Of-cer Commanding, B. Comp. Signal Regiment on 14 January 1986 seek- ing clari cation from Major Sharma on some of the allegations. It appears that correspondence was exchanged in the matter but apparently Major Sharma, having met with no satis- factory response, led a complaint 21 January 1986 in the Court of the Ad- ditional Chief Judicial Magistrate, Jorhat alleging that Col. Ali had criminally assaulted him and further that Brigadier Randhawa did not re- port the matter to the higher au- thorities and was attempting to pro- tect Col. Ali. It was alleged in the complaint that Col. Ali had com- mitted the o ences under sections 323, 352 and 355 of the Indian Pe- nal Code and Brigadier Randhawa had committed the o ence under sec- tion 2 17 of the Indian Penal Code.

The Additional Chief Judicial Magis- trate exam- ined the complaint, and taking cognizance of the o ences al- leged to have been committed by Col. Ali and Brigadier Randhawa it di- rected that summons be issued to them for their appearance before him on 7 March, 1986. On two applica- tions moved by Major Sharma before him the Chief Judicial Magistrate made an order dated 25 January. 1986 directing that the venue of a Court of Inquiry instituted in respect of certain complaints made against Major Sharma by his Commanding O cer be shifted from Mohanbari, where it was convened, to a place within the jurisdiction of his Court and it was directed further that Ma- jor Sharma should not be moved out of the jurisdiction of the Court dur- ing the pendency of the case. Ma- jor Sharma had complained that the Court of Inquiry had been ordered by Brigadier Randhawa at Mohan- bari as a measure of retaliation be- cause of the institution of the crim- inal case by Major Sharma before the Additional Chief Judicial Magis- trate. On 7 February 1986 the Union of India moved an application before the Chief Judicial Magistrate along with an application dated 3 February 1986 addressed to the Court by Ma- jor General T.S. Chaudhri inform- ing the Chief Judicial Magistrate that the General O cer Command- ing was of opinion that Col. Ali should be dealt with in accordance with the procedure laid down under the Army Act and the Army Rules and the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978, and that therefore, the

188 Union of India v. Maj S K Sharma 1987

case may be handed over to the Mil- itary Authorities. It was pointed out by Major Chaudhri in his let- ter that the com- plaint before the Additional Chief Judicial Magistrate against Col. Ali should, in his opin- ion, be disposed of under the pro- cedure laid down in Army Rule 22 of Army Rules, 1954 and that under s. 125 of the Army Act 1950 read with Army Rule 197A of the Army Rules and the Criminal Court and Court Martial (Adjustment of Juris- diction) Rules 1978, Major General Chaudhri was the competent Mili- tary authority to claim the case. He requested that the case should be handed over to the Military authori- ties for further necessary action. On 12 February 1986 the Union of In- dia moved another application before the Chief Judicial Magistrate along with an application dated 3 February 1986 addressed to the Chief Judicial Magistrate by Major General T.S. Chaudhri as General O cer Com- manding requesting that the case against Brigadier Randhawa should similarly be handed over to the Mili- tary authorities for necessary action. On 17 February 1986 the Chief Judi- cial Magistrate, Jothat made an or- der disposing of the two requisitions made by Major General Chaudhri. He noted that the cognizance of the o ences had been taken by the Addi- tional Chief Judicial Magistrate and necessary process had been issued against both accused to compel their presence, and that in the light of Rule 3 of the Criminal Court and Court Martial (Adjustment of Juris- diction) Rules 1978 the prayer for trial by a Court martial by the com-

petent authority was. allowed. In this connection he made reference to Delhi Special Police Establishment v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548. He directed that the case be transferred to the Army authori- ties pursuant to the requisitions, and for disposal in accordance with the provisions of the Army Act, 1950 af- ter trial by a court martial at any place within the jurisdiction of his Court, He directed further that the progress of the case should be re- ported to his Court at intervals of two months and ultimately intimat- ing the result thereof, for the purpose of determining whether a successive trial was necessary as provided for in the Army Act. While making the order the Chief Judicial Magistrate noted that the Army authorities had not shifted the venue of the Court of Inquiry mentioned earlier to any place within the jurisdiction of his court as required by his order dated 25 January, 1986, and this prima fa- cie amounted to contempt for which it was open to Major Sharma to ap- ply to the High Court for necessary action. He also directed that Major Sharma should be permitted to pro- ceed on leave to enable him to apply to the Gauhati High Court for ling a writ petition or taking other legal proceedings. On 21, March 1986 the Union of India through the General O cer Commanding led an applica- tion before the Chief Judicial Mag- istrate for modi cation of the order dated 17 February 1986. In that ap- plication it was contended that under the Army Act and the Army Rules it was not mandatory that all dis- ciplinary cases against military per-

189

sonnel should culminate in a trial by the Court Martial and that the di- rections made by the Chief Judicial Magistrate with regard to the trial of Brigadier Randhawa and Col. Ali by Court Martial were in contraven- tion of the Army Act and the Army Rules and the Criminal Court and Court Martial (Adjust- ment of Ju- risdiction) Rules 1978. It was as- serted that the proposed disciplinary action would be initiated by the Gen- eral Commanding O cer after an in- vestigation of the alleged o ences in accordance with Army Rule 22. It was prayed that the order dated 17 February 1986 be reviewed by delet- ing the direction for a trial by Court Martial at a place within the juris- diction of the Court of the Chief Judicial Magistrate and of the di- rection further that the progress of the case should be intimated to the Chief Judicial Magistrate at inter- vals of two months. On 7 April 1986 the Union of India led an- other application making more de- tailed submissions for modi cation or the other dated 17 February 1986. A third application was moved by the Union of India on 30 April 1986 to the Chief Judicial Magistrate re- questing that the records of the case be handed over to the Army author- ities. These applications were dis- posed of the Chief Judicial Magis- trate by his order dated 8 May 1986. In that order he noted that the Addi- tional Chief Judicial Magistrate had, on receipt of the complaint examined the complainant Major S.K. Sharma under s. 200 of the Cr. P.C. and had taken cognizance of the o ence under s. 190(A) of the Code and on being

satis ed of the existence of a prima facie case process had been issued by him under s. 204(A) of the Code. He noted that the judicial process for ascertaining the prima facie exis- tence of a case had thereby been com- pleted. He held that in the circum- stances the trial of the accused o - cers by a court martial appeared to be mandatory under the provisions of s. 475 of the Code. He observed that the preliminary investigations by a departmental court of inquiry did not seem per- missible in the case. How- ever, having regard to s. 124 of the Army Act which conferred ab- solute power on the Army authori- ties to choose the venue of trial and keeping in view the administrative convenience of the Army authorities he decided to accept the request of the General O cer Commanding for deleting the direction in respect of the venue of the trial. The Chief Ju- dicial Magistrate also directed that instead of intervals of two months the Army authorities should, having re- gard to the provision of s. 127 of the Army Act, inform his Court as to the progress of the case at inter- vals of four months. On 14 June 1986 the Union of India through the Gen- eral O cer Commanding led a revi- sion petition before the High Court at Gauhati, which was disposed of by the High Court by its order dated 3 July 1986. The High Court inter- fered with the order of the Chief Ju- dicial Magistrate in so far only that it deleted the direction requiring the Army authorities inform the Chief Judicial Magistrate of the progress of the case at intervals of four months, and it directed instead that the re-

190 Union of India v. Maj S K Sharma 1987

sult of the Court Martial proceedings should be communicated to the Chief Judicial Magistrate as soon as may be in accordance with Rule 7 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. It may be mentioned that according to the order of the High Court the only submission raised on behalf of the appellant in the revision petition was that the Magistrate had no jurisdiction to direct the Court Martial to submit reports relating to the progress of the case, including the result thereof, at intervals of four months. Thereafter a special Leave Petition was led by the Union of India, out of which the present ap- pal arises. Although it appears that the only point raised before the High Court on the revision petition related to the direction that the Army au- thorities should report periodically to the Chief Judicial Magistrate 464 in regard to the progress of the case, learned counsel for the appellants has raised a more fundamental question before us. That question is whether it is open to the Army authorities to constitute a Court of Inquiry, enter upon an inves- tigation of the charges under Rule 22 of the Army Rules and determine whether there is a case for trial by a Court Martial. Learned Counsel contends that the proceed- ings already taken by the Additional Chief Judicial Magistrate must be ig- nored for the purpose and the Army authorities are not bound to try the accused by a Court Martial. Al- though the point was not taken be- fore the High Court we have permit- ted it to be raised before us and it has been argued by learned counsel

at length. It is apparent from the provisions of the Code of Crimi- nal Procedure that it is open to a Mag- istrate to inquire into a complaint of an o ence alleged to have been com- mitted by a military person, where it fails within its juris- diction, and to take proceedings either for his trial or for committing the case to the Court of Sessions for trial. Likewise, there is power under the Army Act in a duly constituted Army authorities to investigate into a charge against a military person accused of an o ence triable under the Army Act, and af- ter such hearing to decide whether his trial by a Court Martial should be ordered. In the former case, ss. 200 to 203 of the Code of Criminal Pro- cedure provide the procedure to be followed by Magistrates taking cog- nizance of an o ence on a complaint. The Magistrate is required to exam- ine on oath the complaint and the witnesses present and reduce the sub- stance of such examination to writ- ing to be subsequently signed by the complainant and the witnesses and by the Magistrate. That is the pro- cedure except when the complaint is made in writing by a public ser- vant or the Magistrate makes over the case for trial or inquiry to an- other Magistrate. The Magistrate may either inquire into the case him- self or direct an investigation to be made by a police o cer or by such other person as he thinks t for the purpose of deciding whether or not there is su cient ground for proceed- ing. Where, however, it appears to the Magistrate that the o ence com- plained of its triable exclusively by the Court of Session no such direc-

191

tion for investigation can be made by him. For the purpose of inquiry be may take evidence of witnesses on oath. If the Magistrate is of opin- ion that the o ence complained of is triable exclusively by the Court of Session he must call upon the com- plainant to produce all his witnesses and examine them on oath. If af- ter considering the statement on oath of the complainant and of the wit- nesses and the result of the inquiry or investigation directed by him the Magistrate is of opinion that there is no su cient ground for proceed- ing he must dismiss the complaint. Where the Magistrate is of opinion that there is su cient ground for proceeding he must adopt the pro- cedure setforth in sections 204 on- wards. He must issue process for the attendance of the accused. In certain cases he may dispense with the personal attendence of the ac- cused and permit him to appear by his pleader. Where, however, the proceeding is taken by an Army au- thority under the Army Act reference must be made to the provisions of Rule 22 onwards of the Army Rules. The Rules provide for the hearing of a charge, in which the accused has liberty to cross examine any witness against him and to call any witnesses and make any statement in his de- fence. If the Commanding O cer investigating the charge nds no of- fence has been committed he must dismiss the charge. He may also do so if, in his discretion, he is satis-ed that the charge has not to be proceeded with. If the charge is to be proceeded with he may pass any of the orders detailed in Rule

22(3). They include proceedings for trial by a Court Martial. It is clear that these provisions of the Army Rules run parallel to the provisions of the Code of Criminal Procedure adverted to earlier. Now inasmuch as there is always a possibility of the same o ence being triable either by a Criminal Court or by a Court Mar- tial the law has attempted to resolve the competings claims of the civil au- thority and the military authori- ty in such cases. Section 475 of the Code of Criminal Procedure empow- ers the Central Government to make rules as to cases in which persons shall be tried by a Court to which the Code applies or by a Court Mar- tial, and the section provides that whenever a person is brought before a Magistrate and charged with an o ence for which he is liable to be tried either by a Court to which the Code applies or by a Court Martial such Magistrate must have regard to such rules and must, in proper cases, deliver the person together with a statement of the o ence of which he is accused to the Commanding O - cer of the unit to which he belongs for the purpose of being tried by a Court Martial. The language used in s. 475 is signi cant. It refers to a person who is brought before a Mag- istrate and charged with an o ence. In other words, he must be a person respecting whom the Magistrate has taken the proceedings envisaged by ss. 200 to 204 of the Code. He will be a person in respect of when the Mag- istrate has found that there is a case for trial. It is for that reason that s. 475 goes on to say that when such person is delivered to the Command-

192 Union of India v. Maj S K Sharma 1987

ing O cer of the unit to which he be- longs it will be for the purpose of be- ing tried by a Court Martial. When he is so delivered, a statement of the o ence of which he is accused will also be delivered to the Commanding O cer. The relevance of delivering such statement can be easily under- stood, for it is to enable the Army authority to appreciate the circum- stances in which a Court Martial is required by the law.

We now turn to the Criminal Courts and Court Martial (Adjust- ment of Jurisdiction) Rules, 1978. These Rules have been framed un- der s. 475 of the Code of Criminal Procedure. When a person subject to military, naval or air force law or any other law relating to the Armed Forces is brought before a Magis- trate and charged with an o ence for which he is also liable to be tried by a Court Martial, the Magistrate will not proceed to try such person or to commit the case to the Court of Ses- sion unless (a) he is moved to that e ect by a competent military, naval or air force authority or (b) he is of opinion for reasons to be recorded, that he should so proceed or to com- mit without being moved thereto by such authority. Rule 3, in our opin- ion, comes into play at the point where the person has been brought before a Magistrate and charged with an o ence. That is the stage ad- verted to earlier where the accused is directed to appear before the Magis- trate and is charged with an o ence after the Magistrate has determined that there is a case for trial. Before proceeding further with the case and

either proceeding to try the accused or to commit the case to the Court of Session the Magistrate must, un- der Rule 4, give written notice to the Commanding O cer of the accused and refrain for a period of 15 days from doing any of the acts or mak- ing any of the orders in relation to the trial of the accused speci ed in Rule 4. In the event of the Magis- trate entering upon the trial of the accused or committing the case to the Court of Session at the instance of the military, naval or air force au- thority it is open to such authority or the Commanding O cer of the ac- cused to give notice subsequently un- der Rule 5 to such Magistrate that, in the opinion of such o cer or au- thority the accused should be tried by a Court Martial. Upon such no- tice, the Magistrate, if he has not taken any action or made any order referred to speci cally in Rule 4 be- fore receiving such notice, must stay the proceedings and deliver the ac- cused together with the statement re- ferred to in s. 475(1) of the Code to the O cer speci ed in that subsec- tion. In the other kind of case, where the Magistrate intends to proceed to try the accused or to commit the case to a Court of Session without being moved in that behalf by the military, naval or air force authority, and he has given notice under Rule 4 to the Commanding O cer or the military, naval or air force authority of his in- tention to do so, Rule 6 empowers the Commanding O cer or the com- petent authority to give notice to the Magistrate within the aforesaid pe- riod of 15 days or in any event be- fore the Magistrate takes any action

193

or makes any order referred to in that Rule, that in the opinion of such of-cer or authority the accused should be tried by a Court Martial.

Upon such notice the Magistrate must stay the proceedings and de- liver the accused together with the statement referred to in s. 475(1) of the Code to the o cer speci ed in that sub-section. It is clear that when the accused is made over by the Magistrate to the Commanding O - cer or the competent military, naval or air force authority it is for the purpose of trial by a court martial or other e ectual proceedings to be taken or ordered to be taken against him. For Rule 7(1) provides that when an accused has been delivered by a Magistrate under Rule 5 or 6 the Commanding O cer or the com- petent military, naval or air force au- thority must, as soon as may be, inform the Magistrate whether the accused has been tried by a Court Martial or other e ectual proceed- ings have been taken or ordered to be taken against him. The communica- tion of such information is manda- tory. When the Magistrate is in- formed that the accused has not been tried or other e ectual proceedings have not been taken or ordered to be taken against him, he is obliged to report the circumstance to the State Government and the State Govern- ment, in consultation with the Cen- tral Government may take appropri- ate steps to ensure that the accused person is dealt with in accordance with law. The policy of the law is clear. Once the Criminal Court determines that there is a case for

trial. and pursuant to the afore- said rule, delivers the accused to the Commanding O cer or the compe- tent military, naval or air force au- thority, the law intends that the ac- cused must either be tried by a Court Martial or some other e ectual pro- ceedings must be taken against him. To ensure that proceedings are taken against the accused the Rules require the Commanding O cer or the com- petent authority to inform the Mag- istrate of what has been done. Rule 7(2) appears to envisage the possibil- ity that the Commanding O cer or the competent military, naval or air force authority may not try the ac- cused or take e ectual proceed- ings against him even where the Mag- istrate has found a case for trial. To cover that exigency it provides that the State Government in con- sultation with the Central Govern- ment, on a report from the Magis- trate to that e ect, may take appro- priate steps to ensure that the ac- cused does not escape the attention of the law. The policy of our Con- stitutional polity is that no person should be regarded as being above the law. Military. naval or air force personnel are as much subject to the law as members of the civil popu- lation. It is signi cant that Rule 8 empowers the Magistrate. on com- ing to know that a person subject to the military. naval or air force law or any other law relating to the Armed Forces has committed an of- fence and proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except through military. navel or air force

194 Union of India v. Maj S K Sharma 1987

authorities. to require the Com- manding O cer of such person either to deliver such person to a Magis- trate for being proceeded against ac- cording to law or to stay the proceed- ings against such person before the Court Martial if since instituted, and to make a reference to the Central Government for determination as to the Court before which the proceed- ings should be instituted. Reference may also be made to s. 127 of the Army Act. It is an important provi- sion. It provides that a person con- victed or acquitted by a Court Mar- tial, may, with the previous sanction of the Cen- tral Government, be tried again by a Criminal Court for the same o ence or on the same facts. This provision is an exception to Ar- ticle 20 of the Constitution which provides that no person shall be pros- ecuted and punished for the same of- fence more than once. The provi- sion has been made possible by rea- son of Article 33 of the Constitution which confers power on Parliament to modify any Fundamental Right in its application to the members of the Armed Forces. It is to enable the op- eration and application of s. 127 of the Act that Rule 7(1) of the Crim- inal courts and Court Martial (Ad- justment of Jurisdiction) Rules, 1978 requires the Commanding O cer or the competent military, naval and air force authority to inform the Magis- trate whether the accused has been tried by a Court Martial or other ef- fectual proceedings have been taken against him. Our attention has been drawn by learned counsel for the ap- pellants to s. 125 of the Army Act. Section 125 provides that when a

Criminal Court and a Court Martial have each jurisdiction in respect of an o ence it will be in the discre- tion of the Commanding O cer of the accused to decide before which Court the proceedings shall be insti- tuted. This provision is of no assis- tance in deciding whether it is open to the Army authority to take pro- ceedings for determining prima facie whether there is substance in the al- legations made against the accused and decline to try him by a Court Martial or take other e ectual pro- ceedings against him even where a Magistrate has taken cognizance of the o ence and nds that there is a case for trying the accused.

On the aforesaid analysis we are of opinion that the Army authority is not entitled to ignore the proceed- ing taken by the Additional Chief Ju- dicial Magistrate and to invoke the provisions of Rule 22 and related rules of the Army Rules. The Addi- tional Chief Judicial Magistrate hav- ing hold that there is a case for trying the two accused o cers and having directed their appearance, the Army authori- ty must proceed to held a court martial for their trial or take other e ectual proceedings against them as contemplated by the law. The contention advanced by learned counsel for the appellants to the con- trary must be rejected.

We have also been referred to the provisions of the Army Rules relat- ing to Courts of Inquiry, and learned counsel for the appellants urges that notwithstanding the proceeding taken by the Additional Chief Ju- dicial Magistrate it is open to the

195

Army authority to hold a Court of Inquiry and determine whether there is any case for trying the accused by a Court Martial. We have been taken through Rule 177 and the connected Rules which deal with the institution and conduct of Courts of Inquiry, but we see nothing in those provisions which can support the contention now raised before us. If, on the anal- ysis detailed earlier, it is not open to the Army authority to have recourse to Rule 22 and investigate the charge directed against the accused o cer in this case. for the same reason it is not open to it to hold a Court of Inquiry and supersede the pro- ceedings already taken by the Addi- tional Chief Judicial Magistrate. We may mention that learned counsel for the parties placed a number of cases before us, but having carefully pe- rused the judgments in those cases we do not nd any declaration of law therein which is inconsistent with the view taken by us.

Accordingly, the appeal is dis- missed.

In the Criminal Writ Petition Major S.K. Sharma prays for a num- ber of reliefs. The material reliefs are that a direction be issued to the

Army authorities to postpone the re- turn of the petitioner to the Unit to which he has been posted and di- rect the Army authorities to stay all parallel proceedings against the peti- tioner until the hearing and disposal of their Special Leave Petition. So far as the rst submission as concerned it refers to the mental and physical stress su ered by the petitioner, ap- parently necessitating his treatment at a hospital with sychiatric facili- ties. We do not think it necessary to issue any direction because, we think, it is a matter which can be adequately and humanely dealt with by the Army authorities. If indeed the petitioner should be given a post- ing where the requisite medical facil- ities are available we have no reason to doubt that the Army authorities will a ord such posting to the peti- tioner. In doing so it will be open to the Army authorities to obtain the latest medical report respecting the condition of the petitioner.

As regards the second relief, we have already disposed of the special leave petition today and, therefore, no order need be passed in respect of that relief. In the result the writ pe- tition is dismissed. H.L.C. Petition dismissed.

196 Union of India v. Maj S K Sharma 1987

Chapter 13

Vidya Prakash v. Union Of India 1988

Vidya Prakash v. Union Of India out leave-Charge sheeted-Trial by
& Ors on 10 February, 1988 Equiv- Summary Court Martial-Held guilty-
alent citations: 1988 AIR 705, 1988 Dismissed from service-In writ pe-
SCR (2) 953 Bench: Ray, B.C. tition assailing constitution of sum-
PETITIONER: mary court martial by Commanding
O cer-Whether Commanding o cer
VIDYA PRAKASH
of Corps competent to constitute the
v.
summary court martial-Held order of
 
RESPONDENT: dismissal valid.    
UNION OF INDIA & ORS.   HEADNOTE:    
DATE OF JUDGMENT10/02/1988   The appellant was appointed to
BENCH: the post of Craftsman (Jawan) on
November 23, 1973. He was later
RAY, B.C. (J)
promoted to the post of Naik in view
 
BENCH: of his good services and subsequently
 
RAY, B.C. (J) con rmed in that post. He served at
       
SEN, A.P. (J) various places in the country, includ-
ing eld areas. He was, however, re-
CITATION:
verted from the post of Naik to the
 
1988 AIR 705 1988 SCR (2) 953 post of Craftsman (Jawan). While
 
1988 SCC (2) 459 JT 1988 (1) 284 he was in service he incurred the dis-
1988 SCALE (1)313 pleasure of the Commanding O cer
of his regiment (Major) as he did
ACT:
not comply with his directions. He
 
Army Act, 1950/Army Rules, was consequently harassed and mal-
1954: Sections 39(a), 71(e), 108 and treated in various ways. Unable to
116/Rule 39(2)-Jawan-Absent with- bear the torture he surrendered to
         
198 Vidya Prakash v. Union Of India 1988

the mercy of the Commanding O - cer of the Battalion (Colonel). He, however, directed him to surrender to the Commanding O cer of his regiment and gave him a certi cate of surrender. The Commanding Of-cer took him into custody. He was charge-sheeted for the purpose and sentenced to 42 days imprisonment in military custody. During the period of his remaining in military custody, his family su ered harassment. The appellant on 12th September, 1984 left station with his wife and children without taking any leave. He stated that he became unwell and was under the treatment of a doctor. When he reported back to his unit with the t- ness certi cate the Commanding Of-cer of his regiment served him with a charge-sheet on November 2, 1984 and directed that he be tried by a summary court martial. On Novem- ber 9, 1984, the order of dismissal of the appellant from service was made by the Commanding O cer in the Summary Court Martial.

The appellant challenged the aforesaid order in a writ petition to the High Court, and sought quash- ing of the same contending: that the Commanding O cer was not legally competent to preside a sum- mary court martial, that the punish- ment of dismissal from service was disproportionate to the charge, that he was denied a fair opportunity to defend himself, and was in fact not permitted to question the witnesses.

A Division Bench of the High Court however, dismissed the writ petition holding that no objection was taken before the Summary Court

Martial that the appellant was not allowed to be represented by his counsel, that no objection was taken as to the competence of the Com- manding O cer to act as a Judge in the Summary Court Martial, that the appellant had earlier been con- victed four times and entries were made in red ink in his service record, and that as the appellant was absent from duty without leave and pleaded guilty before the court martial pro- ceedings, there was as such no ille- gality in the order of dismissal made in the court martial proceedings.

Dismissing the Appeal,

HELD: 1. Four kinds of courts martial are speci ed in Section 108 of the Army Act, 1950. These are:(a) General Courts Martial; (b) District Courts Martial; (c) Sum- mary General Courts Martial and (d) Summary Courts Martial. [959G-H; 960A]

2. Section 116 of the Act says that a summary court martial may be held by the Commanding O cer of any corps or department or de- tachment of the regular Army, and he shall alone constitute the court, and that the proceedings shall be at- tended throughout by two other per- sons who shall be O cers or junior commissioned o cers or one of ei- ther, and who shall not as such, be sworn or a rmed. It is only in the case if general court martial or dis- trict court martial that Rule 39(2) of the Army Rules 1954 is applica- ble and the Commanding O cer is not competent to convene general or district court martial. [960B,D]

199

3.In the instant case, the sum- mary court martial was held by the Commanding O cer of the Corps, Major P.S. Mahant and there were two other o cers Captain K.J. Singh and another o cer to attend the proceedings. In such circumstances, the summary court martial had been convened by the Commanding O - cer according to the provisions of the Army Act, 1950. [960C, E-F]

4.Section 39(a) of the Act spec- i es that to be absent without leave constitutes an o ence, while Section 71(e) provides dismissal from service as one of the punishments for such an o ence. [960F]

5.The appellant in the instant case, undoubtedly absented himself from duty without taking any leave from the lines as required under the Army Act, was charge-sheeted for the said o ence and tried by a sum- mary court martial convened by the Commanding O cer. After giving him due opportunity it was held that the appellant was previously pun- ished also for the o ence of absence from duty on four occasions and there was a red ink entry. Consid- ering all this, in the summary court martial proceedings he was convicted and sentenced to the punishment of dismissal from service. The sub- mission on behalf of the appellant that punishment is disproportionate to the charge is wholly unsustain- able. As such the said order of dis- missal cannot be challenged as dis- proportionate to the charge or as one tainted with illegality. It is also evi- dent from the judgment of the High Court that the appellant admitted

his guilt of absenting from duty with- out any leave. [960G-H; 961A-B,F]

JUDGMENT:

CIVIL APPELLATE JURIS- DICTION: Civil Appeal No. 2107 of 1987.

From the Judgment and Order dated 3.3.1986 of the Delhi High Court in Writ Petition No. 2503 of 1985. R.K. Garg and D.K. Garg for the Appellant. M.S. Rao and C.V. Subba Rao for the Respondents. The Judgment of the Court was delivered by RAY, J. Special leave granted. Heard arguments of learned counsel for the parties.

This appeal by special leave is against the judgment and order dated 3rd March, 1986 passed by the High Court at Delhi dismissing the writ petition No. 2503 of 1985. The facts of the case in brief are that the appellant was appointed to the post of Craftsman (Jawan) on November 23, 1973. We was sent to 3 E.M.E. Centre, Bhopal for training. After completion of his two years' train- ing he was posted to 80 EME Bat- talion C/o 56. A.P.O. on July 25, 1975. The appellant in view of his good service was promoted to the post of Naik and subsequently he was con rmed in that post. Dur- ing his service as Jawan and as a Naik, the appellant served at var- ious places in the country includ- ing the eld area at Punj Sector in Jammu & Kashmir. The appellant was reverted from the post of Naik to the post of Jawan (Craftsman) by Lt. Col. G.S. Srivastava and he was, thereafter, directed to re-

200 Vidya Prakash v. Union Of India 1988

port to NEFA. The appellant joined his post in NEFA. However, the ap- pellant was subsequently transferred and posted in Panagarh. One Ma- jor N.K. Tiwari who was the Com- manding O cer of the said regiment became very much displeased with the appellant as he did not comply with his directions to go to Kanpur to bring his personal goods from Kan- pur to Panagarh. The appellant was harassed and maltreated in various ways. The appellant being unable to bear the torture caused to him ap- proached Col. R.K. Mehta, Com- manding O cer, EME Depot Battal- ion, Sikandrabad and surrendered to the mercy of the said Colonel. The Colonel advised the appellant to go back to Panagarh and report to his Unit. The appellant was sent with the certi cate of surrender. On his return, the appellant was not per- mitted to join his duty; but he was taken into the custody immediately and thereafter he was directed by Major Tiwari to be treated without leave for three days and should be court martialled for the same. The appellant was charge-sheeted for the purpose and he was convicted to 42 days imprisonment in military cus- tody. During the period of his re- maining in military custody, he was given only a small sum of Rs.60 and as such his family had to su er much harassment. The appellant, however, on 12th September, 1984 left Pana- garh with his wife and children for Kanpur without taking any leave. It is stated that he became unwell and he was under the treatment of a doc- tor.

After coming round he reported to Panagarh and reported in his Unit with the tness certi cate. The appellant was called by the O cer Commanding and he was served with a charge-sheet on November 2, 1984 wherein it was ordered by Major P.S. Mahant that the appellant be tried by a Summary Court Martial. It has been alleged that Major Mahant ap- pointed his close associate Captain K.J. Singh to record summary of ev- idence. The appellant was not given proper opportunity to defend him- self. In the proceedings the appellant was not allowed to raise any objec- tions. On 9th November, 1984, the order of dismissal from service of the appellant was made by Major P.S. Mahant, Commanding O cer, in the summary court martial.

The appellant challenged this or- der by a writ petition being Civil Writ Petition No. 2503 of 1985 on the ground that the Command- ing O cer was not legally compe- tent to preside a summary court mar- tial. It was also stated in the peti- tion that the punishment of dismissal from service was disproportionate to the charge; he was denied a fair op- portunity to defend himself and was in fact not permitted to ask ques- tions to the witnesses. The appel- lant so prayed for issuance of an ap- propriate writ for quashing the im- pugned order of dismissal from ser- vice and also for a direction to the respondents to pay the entire arrears of salary and allowances which are legally due to him. The writ peti- tion was heard by a Division Bench of the High Court at Delhi and it was

201

dismissed on March 3, 1986 holding inter alia that no objection was taken before the Summary Court Martial that the appellant was not allowed to be represented by his counsel. It was also held that in the writ peti- tion no objection was taken as to the competence of Major P.S. Mahant to act as a Judge in the Summary Court Martial nor objection was made to the e ect that Captain K.J. Singh or- dered him to keep his mouth shut. It was also observed that besides Ma- jor P.S. Mahant who was presiding Summary Court Martial there were two other members. The appellant, it was held, had earlier been con- victed four times and entries were made in the red ink. The appellant was absent from duty without any leave and he pleaded guilty before the court martial proceedings and as such there was no illegality in the or- der of dismissal made in the court martial proceedings.

It is against this judgment and order, the impugned appeal on spe- cial leave has been preferred before this Court.

An a davit in counter sworn by one Capt. D.K. Ghosh on behalf of the respondents has been led. In paragraph 4 of the said a davit, it has been submitted that Rule 39(2) of the Army Rules deals with the dis- quali cation of o cers for General and District Courts Martial. The said rule says that an o cer is dis- quali ed for serving on a general or district court martial if he is the Commanding O cer of the accused. The appellant has assailed the court martial proceedings on the ground

that the Commanding O cer served on the Court Martial and as such the court martial proceedings are in breach of Rule 39(2) of the Army Rules, 1954. It has been further stated that the appellant was tried by a Summary Court Martial and not by a General or District Court Martial and Army Rule 39(2) does not apply to Summary Court Martial constituted under Section 116 of the Army Act, 1950. It has been further stated that a Summary Court Mar- tial may be held by a Commanding O cer of any Corps, Department or Detachment of the regular army, as stipulated by Section 116(c) of the Army Act. It has been submitted that the appellant has been tried by a Summary Court Martial and he was sentenced to dismissal from ser- vice on November 9, 1984. It has also been stated that the proceedings have been attended throughout by two other persons in accordance with the provisions of Section 116(1) of the said Act. It has been averred that in a case of Summary Court Martial as per Section 116 of the said Act, the Commanding O cer shall alone constitute the Court. The proceed- ings of the Court shall be attended by two o cers/JCOs or one of either. It has been further stated that the appellant incurred the following red ink entries while serving with vari- ous units prior to the summary court martial:

(i)14 days R.I. in military cus- tody under AA (Army Act) Sec. 39(a) on September 3, 1975 by 80 EME Bn.

(ii)3 days R.I. in military cus-

202 Vidya Prakash v. Union Of India 1988

tody under A.A. Sec. 39(a) on 22nd June, 1979 by 1 EME Centre. (iii) Reduced to the rank under AA Sec. 63 on 24 January, 1983 by 174 Fd. Regt.

(iv) 28 days R.I. and 14 days de- tention in mil. custody under AA Sec. 39(a) on 10th July, 1984 by 986 AD. Regt WKSP.

The appellant was issued a show cause notice for discharge being un- suitable ine cient soldier on 30th August, 1984 to which he replied on 2nd September, 1984. The appellant again became absent without leave on 13th September, 1984. The ap- pellant did not inform the Unit au- thority again of taking his family to Kanpur. While leaving for Kan- pur he locked his quarter securely to keep possession of the family accom- modation. The proceedings of the summary court martial were in ac- cordance with the provisions of the Army Act and the order of dismissal from service of the appellant is a valid order. A rejoinder was led by the appellant wherein he reiterated that the order of dismissal passed by the Commanding O cer, Major P.S. Mahant was illegal and contrary to the provisions of natural justice. The charge- sheet was given to the appellant by the aforesaid Major al- leging that the appellant remained absent from 13th September, 1984 to 30.10.1984 without leave from the Unit's line and the said o cer him- self made an order that the appellant shall be tried by a summary court martial on that day. The said o - cer constituted the court of summary court martial and himself presided

over the same. The order of dismissal was passed in violation of the rules of natural justice. It has also been submitted that the conviction of the appellant was in utter breach of Ar- ticles 14 and 21 of the Constitution of India and as such the said order was liable to be set aside.

The rst submission on behalf of the appellant is that the constitution of the Summary Court Martial by the Commanding O cer Major P.S. Ma- hant is in contravention of Rule 39(2) of the Army Rules, 1954. the rele- vant provisions of Rules 39 are in the following terms:

"Rule 39 ........

(2) An o cer is disquali ed for serving on a general or district court martial if he:

(a) is an o cer who convened the court; or (b) is the prosecutor or a witness for the prosecution; or

(c)investigated the charges be- fore trial, or took down the sum- mary of evidence, or was a member of a court of inquiry respecting the matters on which the charges against the accused are founded, or was the squadron, battery, company, or other commander, who made preliminary inquiry into the case, or was a mem- ber of a previous court martial which tried the accused in respect of the same o ence; or

(d)is the commanding o cer of the accused, or of the corps to which the accused belongs; or (e) has a per- sonal interest in the case." Rule 39(2) provides that an o cer who is the Commanding O cer of the accused or of the corps to which the accused

203

belongs or who is an o cer who con- vened the court or who is the pros- ecutor or a witness for the prosecu- tion and who has a personal interest in the case, is not eligible for serving on a general or district Court Mar- tial. There are four kinds of court martials speci ed in Section 108 of the Army Act, 1959. These are: (a) General Courts Martial;

(b)District Courts Martial

(c)Summary General Courts

Martial;

(d)Summary Courts Martial

Section 116 of the said Act says that a summary court martial may be held by the commanding o cer of any corps or department or detach- ment of the regular Army, and he shall alone constitute the court. It further provides that the proceedings shall be attended throughout by two other persons who shall be o cers or junior commissioned o cers or one of either, and who shall not as such, be sworn or a rmed. In the instant case a summary court martial was held by the Commanding O cer, Major P.S. Mahant in accordance with the pro- visions of Section 116 of the Army Act. The Commanding O cer of the Corps, Department of Detachment of the Regular Army to which the ap- pellant belongs, is quite competent in accordance with the provisions of Section 116 of the said Act and as such the constitution of the summary court martial by the Commanding O cer of the Corps cannot be ques- tioned as illegal or incompetent. It is neither a general court martial nor a district court martial where the ap-

pellant's case was tried and decided. In case of general court martial or district court martial Rule 39(2) of the Army Rules, 1954 is applicable and the Commanding O cer is not competent to convene general or dis- trict court martial. The summary court martial was held by the Com- manding O cer of the corps, Major P.S. Mahant and there are two other o cers including Capt. K.J. Singh and another o cer to attend the pro- ceedings. In such circumstances, the summary court martial having been convened by the Commanding O - cer of the corps according to the pro- visions of the Army Act, 1950, therst submission made on behalf of the appellant fails. Chapter 6 of the Army Act speci es the o ences and also the punishments for such of- fences. Section 39(a) speci es that to be absent without leave consti- tutes an o ence and Section 71(e) of the said Act provides dismissal from service as one of the punish- ments for such an o ence. The ap- pellant undoubtedly absented him- self from duty without taking any leave from the lines as required under the Army Act. The appellant was charge-sheeted for the said o ence and he was tried by a summary court martial convened by the Command- ing O cer and after giving him due opportunity it was held that the ap- pellant was previously punished also for the o ence of absence from duty on four occasions and there was a red ink entry. Considering all this in the summary court martial proceedings he was convicted and sentenced to the punishment of dismissal from ser- vice. The submission that the pun-

204 Vidya Prakash v. Union Of India 1988

ishment is disproportionate to charge is wholly unsustainable. The sum- mary court martial constituted by Major P.S. Mahant after considering the evidences has found the appel- lant guilty of the alleged charge and awarded the said punishment in ac- cordance with the provisions of the Army Act. As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality.

It has been urged on behalf of the appellant that he raised an objec- tion to Major P.S. Mahant to preside over the summary court martial. It has also been urged that at the time of taking evidence of the witnesses, the appellant was asked to keep his mouth shut and as such the appel- lant could not cross-examine the wit- nesses examined on behalf of the prosecution, thereby the principles of natural justice have been violated. It appears that the appellant has notled any objection before the sum- mary court martial objecting to the presiding of the court martial pro- ceedings by Major P.S. Mahant nor any such objection had been taken in the writ petition moved before the High Court. It is for the rst time in the appeal which the appellant led

before the Chief of the Army Sta (Competent Authority), Army Head- quarters, New Delhi that he raised an objection to the presiding of Major P.S. Mahant as Judge of the court martial proceedings. It has been rightly held by the High Court that this is an after-thought and as such this submission cannot be permitted to be made by the appellant after the court martial proceedings were completed and the order of dismissal from service was made. As regards the other objection that he was di- rected by Capt. K.J. Singh to keep his mouth shut, it is also without any substance in as much as it appears from the summary of the evidences recorded that the appellant in fact cross-examined the prosecution wit- nesses. It is also evident from the judgment of the Delhi High Court that the appellant admitted his guilt of absenting from duty without tak- ing any leave. Considering all these facts and circumstances, the judg- ment and order passed by the High Court of Delhi appears to us as unas- sailable. We, therefore, dismiss the appeal and a rm the judgment and order of the High Court. There will be no order as to costs.

N.V.K. Appeal dismissed.

Chapter 14
Lt Col K D Gupta v. Union of India 1988
LT. COL. K.D. GUPTA v. pointed as a Second Lieutenant. He
UNION OF INDIA & ORS   rose to the level of Lt. Colonel on
PETITIONER: LT. COL. K.D. 27th February, 1975. In March, 1976
GUPTA       he was directed to report to the Mil-
      itary Hospital for his psychiatric ex-
v.      
      amination, where his medical clas-
RESPONDENT: UNION OF IN-
si cation was reduced from shape-I
DIA & ORS     to shape-III, and he was posted as
       
DATE OF JUDGMENT20/04/1988 GLO and treated as Major. There
BENCH: MISRA RANGNATH was however no speci c order reduc-
BENCH: MISRA RANGNATH ing him in rank.  
DUTT, M.M. (J)     In December, 1976, appellants
CITATION: 1988 AIR 1178 1988 Classi cation was upgraded to shape
SCR (3) 646 1988 SCC Supl. 347 JT II and in September, 1977 to shape-
1988 (2) 199 1988 SCALE (1)791 I. But it was decided that he should
be subjected to special review be-
ACT: Army Act, 1950: Sec-
fore restoration of his rank. In a
tion 20, 191 and 192 and Special special report the Brigade Comman-
Army Instruction No. 1 dated Jan- der recorded appreciation of the ap-
uary 9, 1974 Army O cer- Subjected pellants work, and recommended his
to frequent medical examination- promotion as Lt. Colonel. But the
Downgrading and upgrading be- Army Headquarters directed the ap-
tween shape-I and shape-III-Treated pellant to the Military Hospital for
to have been reduced in rank- further examination on the ground
Whether justi ed?     that an earlier incident of 1963 had
       
HEADNOTE: The appellant was been overlooked when the appellant
granted a permanent Commission in was graded as shape-I. On this ex-
the Indian Army in 1958 and ap-    
206 Lt Col K D Gupta v. Union of India 1988

amination, the appellant was perma- nently downgraded as shape-II. In 1980, the appellant led a writ pe- tition in this Court, challenging the action of Army Headquarters and his downgrading. This Court directed that he should be restored to the rank of Acting Lieutenant Colonel from the date he was reverted and that his claims to advancement, pay, arrears of pay, etc. should be con- sidered and disposed of within six months (See 1984 (1) SCC 153).

After lodging his claims, the ap- pellant waited for a reasonable time and then led a writ petition in the High Court. The respondent con- tended that there was nothing wrong in the recategorisation and the direc- tions of the Supreme Court had been fully complied with. The High Court dismissed the writ petition.

In this appeal by special leave, the appellant contended that a prej- udicial approach developed against him in the Headquarters establish- ment without any justi cation and he had been unduly subjected to psy- chiatric examination from time to time, and on the basis of the records built up against him adverse opinion had been forthcoming which resulted in recategorisation from shape-I to shape-II. To remove the apprehen- sion of bias, this Court directed that the appellant may be examined by a Board consisting of three Experts with an outsider as Chairman.

After considering the report of the Experts Committee this Court allowed the appeal in part and,

HELD: 1. The appellants medi-

cal category shall be taken as being continued to be shape-I from 1977 and on that basis his promotional entitlements shall be nalised by the respondents within three months hence. It is open to the respondents to release the appellant from service after this has been done. [655F] 2. The report of the Expert Commit- tee makes it clear that there was no justi cation for the appellant to be subjected to psychiatric test in 1978 following which he was recategorised as shape-II. [654G] 3. This subject of categorisation on the basis of psy- chiatric test is technical and should ordinarily be left to experts available in the Defence Department and the guidelines indicated by the Depart- ment should be followed. This Court has no intention to disturb the dis- cipline of the Defence Department, but on the basis of material avail- able on the record and on the ba- sis of the report of the Committee of Experts, the appellant is entitled to limited relief. Though there was no order reducing him from the rank of Acting Lieutenant Colonel to Ma- jor, he was treated as having been so reduced. Then followed the fre- quent psychiatric examinations with- out any real justi cation. This recat- egorisation, in these circumstances, was without any justi cation. [654H; 655A-B] [Reiterating that it would like the discipline of the Defence De- partment to be maintained by itself in the interest of the nation, this Court observed that this case may not be taken as a precedent.] [655F- G]

JUDGMENT: CIVIL APPEL-

207

LATE JURISDICTION: Civil Ap- peal No. 1702 of 1987 from the Judg- ment and order dated 31.3.1987 of the Allahabad High Court in Civil

Misc.   Writ Petition No. 5702
of 1985. Petitioner in-person (Lt.
Col. K.D. Gupta) Kuldeep Singh,
Additional Solicitor General, C.V.

Subba Rao and Pramod Swarup for the Respondents. The Judgment of the Court was delivered by RAN- GANATH MISRA, J. This appeal is by special leave and is directed against the judgment of the Alla- habad High Court dismissing the writ application of the appellant. He was granted a permanent Commis- sion in the Indian Army in 1958 and was initially appointed as a Sec- ond Lieutenant. He obtained suc- cessive promotions to the ranks of Lieutenant, Captain and Major. In December, 1974, he was selected for promotion to the rank of act- ing Lt. Colonel and was so pro- moted with e ect from 27th Febru- ary, 1975. From the following year, the appellant came to face a series of set backs in his service. On March 22, 1976, his Brigade Commander di- rected the appellant to report to the O cer Commanding, Military Hos- pital, Kirkee for his psychiatric ex- amination. He was examined by Lt. Colonel Mukherjee, specialist in psychiatry on 23rd March, 1976 and by Surgeon Commodore Dnetto, Psychiatry Consultant to the Indian Navy on the 26th March, 1976. On the basis of their reports, the ap- pellants medical classi cation was re- duced from Shape-I to Shape III by order dated August 13, 1976. By or- der dated November 16, 1976, the

appellant was posted as GLO (Ma- jor/Captain) 152, G.L. Sec. Type Vice Captain I.K. Bedi, a post or- dinarily held by a Major or Captain. Though there was no speci c order reducing the appellant in rank from Acting Lt. Colonel to that of Major, he was treated as Major. On Decem- ber 10, 1976, appellants classi cation was upgraded to Shape-II and on a second medical review on Septem- ber 2, 1977 to Shape-I. His author- ities, however, decided the appellant to be subjected to Special Review be- fore restoration of the rank of Act- ing Lt. Colonel and on October 31, 1977, required the Brigadier Com- mander to initiate a special report and submit it to the Headquarters. The Brigade Commander recorded appreciation of the appellants work and recommended his promotion as Lt. Colonel. Yet, the Army Head- quarters by letters dated October 12 and November 27, 1978, directed the appellant to be sent to the Military Hospital at Pune for further exami- nation by the psychiatry consultant. It was indicated by way of justi ca- tion for such requirement that when the appellant was graded as Shape I, an earlier incident of 1963 had been overlooked. On such examina- tion the appellant was permanently downgraded as Shape II. The appel- lant led an application under Arti- cle 32 being Writ Petition No. 5302 of 1980 challenging these actions and his downgrading. A two-Judge bench of this Court by judgment dated Au- gust 10, 1983, allowed the same. This Court stated: According to the peti- tioner, this was done entirely with- out any basis and that even the clin-

208 Lt Col K D Gupta v. Union of India 1988

ical reports would reveal that the petitioner was perfectly t. We do not desire to go into these claims of the petitioner since we are satis-ed on the material placed before us that even the very reduction of the petitioners rank in 1976 from Act- ing Lieutenant Colonel to Major was bad. Shri Abdul Khader, learned counsel for the respondents explained to us that the petitioner had been re- verted from the rank of Acting Lieu- tenant Colonel to Major for three reasons: (i) Reduction in rank had to follow as a matter of course on placement of the petitioner in a lower medical category; (ii) After the latest medical examination in 1978, he was not eligible to be considered for pro- motion for one year; his earlier reduc- tion in rank was, therefore, justi ed; and (iii) He performed no duty for six months from March 22, 1976 when he was admitted in the hospital and under the rules, he stood automat- ically reduced in rank. This Court examined all the three points and ul- timately ended by saying: As stated by us earlier, we nd no substance in any one of the reasons mentioned by Shri Abdul Khader on behalf of the respondents for the reversion of the petitioner from the rank of Acting Lieutenant Colonel to Major. The reversion or reduction in rank cannot be justi ed and it is 650 accordingly quashed. The petitioner is directed to be re stored to the rank of Acting Lieutenant Colonel with e ect from the date he was reverted and stripped o the badges indicating his rank. As a result of the restoration of the rank of the Acting Lieutenant Colonel to the petitioner, other consequences,

such as, consideration of the petition- ers further claims to advancement, pay, arrears of pay, etc., will have to be considered by the authority and it is directed that these claims may be considered and disposed of within a period of six months from today. The appellant waited for a reason- able time after lodging his claim and ultimately went before the Allahabad High Court by ling an application under Article 226 of the Constitu- tion being Writ Petition No. 5702 of 1985. Before the High Court he asked for quashing of the proceedings of the Review Medical Board dated 11th January, 1984, and for a dec- laration that he should be treated as belonging to medical category Shape- I for all purposes without interrup- tion since 2nd September, 1977. He also asked for an appropriate post- ing considering his entitlement and other service bene ts. The claim was resisted by the respondents on the ground that there was nothing wrong in the recategorisation and the di- rections of the Supreme Court had been fully complied with and the ap- pellant has no subsisting grievance. On 31st March, 1987, the High Court dismissed the petition. This appeal has been led after obtaining the spe- cial leave. The appellant as on the earlier occasion argued the appeal in person and began his arguments by contending that the respondents were guilty of not giving e ect to the directions contained in the judgment of this Court. When we heard the ap- pellant, we realised how very correct the observation of Chinnappa Reddy, J., where he re corded in the judg- ment of this Court were: As usual

209

with parties, who argued their cases themselves, he was so full of his facts and grievances, big and small, that we experienced, for quite a while, dif-culty in getting a picture of the case in its proper frame. After the mat- ter was heard at length, we found that there was absolutely no merit in the contention of the appellant that the respondents were guilty of not complying with the directions of this Court. Learned Additional Solicitor General was, therefore, right in tak- ing the stand that full e ect had been given to the directions contained in the judgment of this Court. We would like to recall here that there were several other contentions made in the writ petition which this Court did not go into by saying that even without considering them the appel- lant was entitled to his relief. The appellant had moved this Court on the earlier occasion under Article 32 of the Constitution but on this occa- sion he went before the High Court under Article 226. Some of his allega- tions had already been made in the writ petition before this Court and others related to subsequent events. It is unnecessary to go into several aspects which the appellant in his anxiety had pleaded and even can- vassed at the hearing. It is su cient to indicate that the main grievance of the appellant has been against recat- egorisation from Shape-I to Shape- II. We have already pointed out that the appellant enjoyed Shape-I until 1976 when he was reduced to Shape- 3 in August 1976. In 1977, he was brought back to Shape-I. According to the appellant, there was abso- lutely no justi cation for the direc-

tion made in March, 1976 to subject the appellant for psychiatric exami- nation. Similarly when the appellant had been recategorised in September, 1977, as Shape-I, there was no neces- sity to require him to be subjected to further examination at Pune. He denied the allegation that the inci- dent of 1963 had not been taken into account while recategorising him as Shape-I. According to the appel- lant, a prejudicial approach devel- oped against him in the Headquar- ters establishment without any jus- ti cation and he has been unduly subjected to psychiatric examination from time to time and on the ba- sis of the records built up against him, adverse opinion has been forth- coming. To meet this objection of the appellant and remove apprehen- sion of bias from his mind, in course of hearing, we suggested to learned Additional Solicitor General appear- ing on behalf of the respondents that the appellant may be examined by a board consisting of three experts spe- cially constituted with an outsider as Chairman. Respondents learned counsel after obtaining instructions accepted the suggestion. By or- der made on January 25, 1988, this Court directed: In course of hear- ing of the appeal, we suggested to learned Additional Solicitor General appearing on behalf of the respon- dent to have a fresh psychiatric eval- uation of the appellant by a compe- tent body of psychiatrists by includ- ing in the board some in-service and retired Army psychiatrists and some from outside. This was initially op- posed by learned Additional Solic- itor General by contending that it

210 Lt Col K D Gupta v. Union of India 1988

would be against the discipline of the Defence Department and would cre- ate in unwholesome precedent. We adjourned the matter and gave him the opportunity to take instructions from Government and we are happy to note that on the basis of instruc- tions, he has agreed. as a special case, to the constitution of such a board of psychiatrists. Appellant has also been heard in person in the mat- ter. He has made writ submissions by way of an application we have taken into consideration. We direct that a board of psychiatrists consist- ing of three experts be constituted with the Professor and Head of the Psychiatrist wing of the All India Institute of Medical Sciences, New Delhi, Air Com. K. Sethi Consul- tant of the Army Hospital at Delhi and Colonel M.A. Bhasin, Senior Ad- visor in Psychiatry, Southern Com- mand Hospital, Pune. The Head of the Department of the All India In- stitute of Medical Sciences, as re- ferred to above, shall act as the con- venor and chairman of the Board. The Board shall meet at Delhi at such place, date and time as may bexed by the convenor in consultation with the two other members. The Board shall peruse all the records relevant for the purpose of making psychiatric evaluation of the appel- lant and the respondents shall pro- duce all such records as may be nec- essary and required for such purpose by the Board including the relevant instructions of the Defence Depart- ment in the matter of such assess- ment. The appellant shall appear be- fore the Board when directed and the respondents shall take steps to en-

sure his availability before the Board. The report should be made available to this Court within six weeks from today. The expenses including pay- ment, if any, necessary to be made to any of the experts shall be borne by respondent No. 1. The evaluation shall inter alia indicate whether there was any justi cation to categorise the appellant as Shape-II after he had been adjudged as Shape-I and as to whether the present categorisation as Shape-II permanent is justi ed. We place on record that this shall not be treated as a precedent. The Board sent its report dated March 8, 1988, after examining the appellant between 22nd February, 1988 and 8th March, 1988. It evolved the follow- ing procedure: 653 (a) Each of the experts to examine the patient, in- dependently at least twice. (b) Each expert to maintain his own observa- tions. (c) Daily observations reports of the patient to be recorded by the Senior Resident Psychiatry. (d) Psy- chometeric evaluation (e) Perusal of old records of hospitalisation by the three consultants, after the current examination. (f) Maintenance of con dentiality of observation by the experts, Sr. Resident and the Psy- chologist. (g) Review of the unit re- ports after current examination. (h) Joint review and report by the board on 7th and 8th March, after examin- ing all the material collected above. In paragraph 5 of the Reports the Board observed. (a) During Septem- ber 1977, when he was recommended to be upgraded to medical category S-I Lt. Col. K.D. Gupta was a symptomatic as per the medical his- tories examined by the board. The

211

old medical records do not show any evidence of a psychiatric disorders between September 1977, when he was upgraded to S-I and the review board which took place in Novem- ber 1978 following which he was re- categorised to permanent S-II as per the opinion of that review board on the ground that a relapse could occur in future. (b) The current A043/78 and DG Memorandum 97 (extract attached as appendics A & B), pre- cludes such an individual to be up- graded from medical category S-II to S-I. (c) The natural history of af- fective psychosis (MDP) ICD 9, is strongly supported of the fact that relapse without 654 any precipitat- ing cause and remission without any medical intervention can take place. We felt that certain elucidation was necessary and requested the presence of the Chairman Professor Mohan in Court. Prof. Mohan appeared in due course and with reference to what was stated in paragraph 5(a), he stated: We were of the view that there was no material in the Medi- cal reports justifying the recategori- sation to S-II from S-I apart from ap- prehensions of relapse. In answer to a question posed by learned Additional Solicitor General, Dr. Mohan stated: During September 1977, when he was recommen- ded to be upgraded to medical category S-I Lt. Colonel K.D. Gupta was a symptomatic as per the medical histories examined by the board. We meant that there was no record in the history of med- ical papers to suggest that Lt. Col. Gupta was unwell. Upon the sugges- tion of the learned Additional Solic- itor General, Dr. Mohan was asked

as to whether he was of the view that the appellant was at the time of the present examination entitled to be categorised as S-I and he answered. If you take the natural history of the illness, it is di cult to say one way or the other, because it is self limiting and phasic and after the phase is over there is no residual de cit left. The individual is as normal as anybody else is. The period between attacks varies from one individual to another from months to year . The report and the statement made by Professor Mo- han make it clear that there was no justi cation for the appellant to be subjected to phychiatric test in 1978 following which he was recategorised as S-II. We agree with the learned Additional Solicitor General that the subject is technical and ordinarily should be left to experts available in the Defence Department and the guidelines indicated by the Depart- ment should be followed. This Court has no intention to disturb the disci- pline of the Defence Department but on the basis of material 655 available on the record which had been partly dealt with by this Court on the ear- lier occasion while disposing of the writ petition, and what we have now found on the basis of the report of ex- amination by the Committee of Ex- perts the appellant has become enti- tled to limited relief. Though there was no order reducing him from the rank of acting Lieutenent Colonel to Major, he was treated to have been so reduced. Then followed the fre- quent psychiatric examinations with- out any real justi cation. These have constituted the foundation of the ap- pellants grievance. His recategori-

212 Lt Col K D Gupta v. Union of India 1988

sation as S-II in 1978, in these cir- cumstances, was without justi ca- tion. He is, therefore, entitled to a reconsideration of his claim for pro- motion on the basis of his medical categorisation continuing as S-I. In a petition dated 2nd April, 1988, the appellant had asked for certain direc- tions and reliefs. The application is confused one inasmuch as arguments, pleadings and prayers have been jum- bled up. The appellant, inter alia, has asked for entitlements of promo- tion in view of promotions earned by his batchmates. We do not think that would be a safe guide but we do hope and trust that the respondents should consider his case for promo- tion with an open mind on the ba- sis of his continuity in shape-I. He has also indicated in paragraph 8 of that petition that he is prepared to be released from service after his pro-

motional entilement is nalised and he is given his dues on such basis as may be determined. The appellant has claimed compensation which we see no basis to grant. The appeal is allowed in part and to the extent that the appellants medical category shall be taken as being continued to be S-I from 1977 and on that basis his promotional entitlement shall benalised by the respondents within three months hence. We make it clear that it is open to the respon- dents to release the appellant from service after this has been done. This case may not be taken as a prece- dent and we reiterate that this Court would like the discipline of the De- fence Department to be maintained by itself in the interest of the nation Parties are directed to bear their own costs. G.N. Appeal partly allowed.

Chapter 15

Lt Col K.D. Gupta v. Union of India 1989

Lt. Colonel K.D. Gupta v. Union of India & Ors [1989] INSC 112 (31 March 1989)

Misra Rangnath Misra Rangnath

Dutt, M.M. (J)

CITATION: 1989 AIR 2071 1989 SCC (3) 566 JT 1989 (3) 283 1989 SCALE (2)174

ACT:

Army Act, 1964: Defence Services{Promotion{Unlike other government servants, requisite experience, consequent exposure and appropriate review by au- thorities, indispensable{Individual capacity and special qualities{ Basis for assessment{Lower med- ical categorisation{E ect of for purposes of promotion{Grant of compensation{Relevant factors{ Considerations thereof.

HEAD NOTE:

The appellant has led a con- tempt petition against the Respon- dents, alleging that the directions dated 20.4.1988 of this Court, have

not been complied with.

The Respondents were directed to reconsider the case of the appel- lant for promotion on the basis that his medical category continues to be S-I from 1977, and that the medi- cal category would be taken into ac- count if the rules for promotion so require; otherwise not. It was also di- rected that the consideration of pro- motion would be completed within four weeks; (See 1988(3) SCR 646).

On behalf of the respondents, it was stated that the promotional en- titlements of the petitioner had beennalised as per the directions of the Court, after re-examining the peti- tioner's case for promotion within the speci ed time and since there was no failure to comply with the direc- tions, no contempt had been com- mitted. It was also submitted that the petitioner's medical categorisa- tion has nothing to do with the re- fusal to promote him.

Disposing of the petition,

HELD: 1. The judgment of this

214 Lt Col K.D. Gupta v. Union of India 1989

Court did clearly proceed on the footing that the lower medical cat- egorisation prejudiced the petitioner in the matter of obtaining appropri- ate promotions. For the rst time, the respondents have taken the stand in the contempt proceeding that the lower categor- isation has nothing to do with the refusal to accord pro- motion to the petitioner. The plea now advanced cannot therefore be accepted. [377E-F] 371

2. The .defence services have their own peculiarities and special requirements. The considerations which apply to other government ser- vants in the matter of promotion can- not as a matter of course be ap- plied to defence personnel of the pe- titioner's category and rank. Req- uisite experience, conse- quent ex- poser and appropriate review are in- dispensable for according promotion, and the petitioner, therefore cannot be given promotions as claimed by him on the basis that his batch-mates have earned such promotions. Indi- vidual capacity and special qualities on the basis of assessment have to be found but in the case of the peti- tioner these are not available. [377G- H; 378A-B]

3.1 As regards compensation, the petitioner advanced tail claims by contending that he has su ered phys- ical and mental torture, loss of repu- tation and of social acceptance andnancial loss. What promotions the petitioner would otherwise have earned would be a matter of specu- lation and cannot be ascertained at this stage for lack of appropriate de- cisive criteria. His grievance that he

su ered in dignity and humiliation as a result of being looked down upon by his batch-mates, friends and rel- atives, has perhaps been su ciently met by the appellate judgment which has declared that his lower medi- cal categorisation was unjusti ed and the petitioner continued to be Shape- I without break from 1977. [368E-G]

3.2 The defence personnel have peculiar incidence of service. Life's course does not run smoothly for ev- eryone.

Some relevant factors to be con- sidered for award of compensation are the duration of time for which the petitioner was subjected to vari- ous medical checks and hospitalisa- tion, and the consequent su ering which he underwent, the loss of pro- motional prospects and the fact that he would now be obliged to request to be released from service prematurely.

A total compensation of RS.4 lakhs would meet the ends of jus- tice. The petitioner would not be entitled to any other claim on these heads, but he would be entitled to all other service bene ts which an o - cer of the Lt. Colonel's rank would be entitled to hold. [378G-H; 379A- B] Major K.D. Gupta v. Union of India, [1984] 1 S.C.C. 153 and Lt. Col. K.D. Gupta, v. Union of India, [1988] 3 SCR 646. referred to.

This Court directed that the amount of Rs.4 lakhs be paid to the petitioner within 2 months and the petitioner may be released from the defence service in accordance with any decision that might be taken on his request for such release. [379C-D]

215

372

CIVIL APPELLATE JURIS- DICTION: Civil Misc. Petition No. 20065 of 1988.

In Civil Appeal No. 1702 of 1987.

From the Judgment and Order dated 31.3.1987 of the Allahabad High Court in C.M.W.P. No. 5702 of 1985.

Petitioner-in-person.

G. Ramaswamy, Additional So- licitor General, C.V.S. Rao and A.K. Srivastava for the Respondents.

The Judgment of the Court was delivered by RANGANATH MISRA, J. Petitioner, a Lt. Colonel in the Indian Army, has led this applica- tion for taking contempt proceeding against the respondents on the alle- gation that the directions contained in the judgment of this Court, dated 20th April, 1988, in Civil Appeal No. 1702 of 1987 have not been complied with. This Court in the Civil Appeal found that the petitioner was entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation continuing as S-I and directed:

"The appeal is allowed in part and to the extent that the appellant's medical category shall be taken as being continued to be S-I from 1977 and on that basis his promotional entitlement shall be nalised by the respondents within three months hence." After this Court's decision, by a letter dated 17th of June, 1988, the respondents informed the peti- tioner to the following e ect:

"In this connection, I have been

directed to inform you that your case has been reexamined in the light of the judgment of the Supreme Court of India dated 20th April, 1988.

It may kindly be recalled that acting rank of Lt. Col. was granted to you with your original seniority based on the earlier directions of the Hon'ble Court. Substantive 373 rank of Lt. Col. was also granted to you along with your batch-mates. Conse- quent to the Supreme Court's judg- ment dated th August, 1983, your case for promotion to the rank of A/Colonel was considered on three occasions viz., July 86, April 87, November 87 and rejected on all the three occasions based on your overall performance and merit of your batch. Your medical category was not taken into consideration as per the laid down procedure. Therefore, upgra- dation of your medical category from Shape-2 to Shape-I by the Supreme Court vide their orders dated 20th April, 1988, does not warrant recon- sideration of your case for promo- tion because your medical category had not a ected your case for pro- motion to the rank of A/Colonel on any occasion. You failed to make the grade for promotion not on the basis of your medical category but on the basis of your overall perfor- mance and merit of your batch " Upon notice in this miscellaneous proceeding a counter a davit wasled on behalf of the respondents stating that the petition was miscon- ceived and he was not entitled to any relief as claimed. It was stated that the promotional entitlements of the petitioner had been nalised as per

216         Lt Col K.D. Gupta v. Union of India 1989
  ACR 84/85 (b) 'R' (Un t) in April,
the directions of this Court after re-
examining the petitioner's case for 1987 with ACR 6/85 to 2/86.  
promotion within the speci ed time (c) 'R' (Un t) in November, 1987
and as there was no failure to com-
with ACR 6/86 to 5/87  
ply with the directions, no contempt The O cer has been nally su-
had been committed. The counter-
perseded for promotion to the rank
a davit proceeded to state:   of acting Colonel based on his over-
"As per the selection procedure
all pro le and his medical category
explained in the proceeding para- was not taken into account during
graphs, the medical category of Lt. the above three considerations. How-
Col. K.D. Gupta was not taken into ever, the o cer has been granted the
cognizance.   On receipt of the di- substantive rank of Lt. Colonel w.e.f.
rections of the Supreme Court dated 01 August, 1979 vide Gazette No-
20th April, 1988, Lt. Cot. Gupta's ti cation No. 1774/87 dated 19th
case for promotion was reexamined. September, 1987.  
Since the Hon'ble Court had given Therefore, no further action is
no such directions to the e ect that
required by the department in pur-
the case of   Lt. Col. Gupta shall
be placed before the Selection Board suance of the judgment of this
and has only directed that the peti- Hon'ble Court dated 20.4.1988." "I
tioner's promotional entitlements be state that the petitioner had ad-
nalised in view of his continued dressed a demi o cial letter dated
medical category in Shape-I since 02.5.1988 to the Chief of Army Sta
1977, his case was reexamined and in this regard. The Chief of Army
nalised and the same was intimated Sta called for the details of the case
to him vide our letter dated 17th of the petitioner and the same were
June, 1988".         placed before the Chief of Army Sta
        on 03.6.1988. The Chief of Army
The record of consideration for
Sta after considering the note put
promotion of the petitioner at the up to him, directed the o ce to inti-
various stages by the Board was di- mate the petitioner accordingly. By
rected to be produced before the letter dated 17.6.1983, the o ce has
Court. In   a further a davit on informed the petitioner, a copy of
behalf of the respondents, Col. which is enclosed herewith. It is,
Bharucha stated that:     therefore, humbly submitted that the
             
"By letter dated 26.5. 1988, the case of the petitioner was considered
Military Secretary observed as un- after the judgment of this Hon'ble
der:             Court dated 20th April, 1988 by the
The O cer was considered by Military Secretary of the rank of Lt.
No. 3 Selection Board for promo- General and it was found that it is
tion to the acting rank of Colonel and not neces- sary to send him for selec-
awarded the following:     tion board as he was already found
    un t without reference to his medi-
(a) 'R' (Un t) in July 1986 with
cal certi cate Shape-II".  
                   

217

On 24th of January, 1989, this Court made the following order:

"After carefully considering the matter, we direct the respondents to reconsider the case of the appellant for promotion on the basis that his medical category continues to be S-I from 1977. The medical category will be taken into account if the rules for promotion so require, otherwise not. The consideration of promotion will be completed within four weeks from today ...... " We have been informed that the petitioner's case was consid- ered on the basis of record and he was not found t for any promotion.

It is relevant to notice at this stage that the petitioner had come before this Court on an earlier occa- sion by ling writ petition No. 5302 of 1980 which was disposed of on Au- gust 10, 1983 (1984 1 SCC 153). This Court in its judgment indicated:

"Shri Abdul Khader, learned counsel for the respondents explained to us that the petitioner had been re- verted from the rank of Acting Lt. Colonel to Major for three reasons:

(i)Reduction in rank had to fol- low as a matter of course on place- ment of the petitioner in a lower med- ical category;

(ii)After the latest medical ex- amination in 1978, he was not eli- gible to be considered for promotion for one year; his earlier reduction in rank was, therefore, justi ed; and

(iii)He performed no duty for six months from March 22, 1976 when he was admitted in the hospital and un- der the rules, he stood automatically reduced in rank.

We nd no substance in any of the reasons mentioned by Shri Ab- dul Khader. Shri Khader was unable to draw our attention to any rule, or- der or circular which prescribed that reduction in rank should inevitably follow on placement of an o cer in a lower medical category. In fact it was conceded by Shri Khader that an o cer whose medical classi cation is downgraded, will not be reduced in rank on that account, but will con- tinue to hold the same rank as 376 before. We are, therefore, unable to understand why the petitioner had to be reduced in rank because subse- quent to his promotion, his medical classi cation was downgraded. The second reason given by Shri Khader that the petitioner would not be eli- gible to be promoted for a year af- ter the latest medical examination and, therefore, his earlier reduction in rank was justi ed, is only to be stated as rejected. When the peti- tioner was promoted, he satis ed all the requirements including that of medical categorisation, if any.. Wend it impossible to agree with the proposition that since he would be ineligible to be promoted today, he could not have been promoted yes- terday when he satis ed all the re- quirements.

The reason really pressed before us was the third reason, namely, that the petitioner had not performed any duty for six months and, therefore, he had to be reduced in rank in ac- cordance with paragraph 5 of Special Army Instruction No. 1 dated Jan- uary 9, 1974. We do not propose to examine the question whether Spe-

218 Lt Col K.D. Gupta v. Union of India 1989

cial Army Instruction No. 1 au- thorises a reduction in rank for fail- ure to rejoin duties for more than six months since that appears to be the case of the petitioner also." The counter-a davit led in the writ pe- tition and the submissions of coun- sel advanced at the hearing thereof clearly indicate that the medical cat- egory of the petitioner was connected with his entitlement to promotion. In fact in the civil appeal itself the petitioner's claim for promotion to higher ranks, keeping the promotions accorded to his batch-mates in view, was challenged on the basis of the petitioner's lower medical category. In the a davits led in the civil appeal the respondents never took the stand that entitlement to pro- motion as claimed by the petitioner had nothing to do with the state of his health physical and mental. If that stand had been adopted, this Court would certainly have gone into that question before directing the pe- titioner's case to be reexamined by a Special Board of Psychiatrists, on the basis of whose report, the peti- tioner was allowed to be continued in shape-I from 1977 without any break. It is not disputed that the petitioner had in the second round of the liti- gation mainly pressed for his promo- tion by contending that his medical categorisation was vitiated. Coun- sel for the respondents at no stage during the hearing of the appeal ad- vanced the contention that the claim for promotion was not, in any man- ner, connected with the medical cat- egory of the petitioner. That is why this Court in its judgment stated:

" ..... on the basis of mate- rial available on the record which had been partly dealt with by this Court on the earlier occasion while disposing of the writ petition, and what we have now found on the ba- sis of the result of examination by the Committee of Experts the ap- pellant has become entitled to lim- ited relief. Though there was no order reducing him from the rank of acting Lt.Colonel to Major, he was treated to have been so reduced. Then followed the frequent psychi- atric examinations without any real justi cation. These have constituted the foundation of the appellant's grievance. His recategorisation as S- II in 1978, in these circumstances, was without justi cation. He is, therefore, entitled to a reconsidera- tion of his claim for promotion on the basis of his medical categorisa- tion continuing as S-I." "The appel- lant, inter alia, has asked for entitle- ment to promotion in view of pro- motions earned by his batchmates. We do not think that would be a safe guide but we do hope and trust that the respondents would consider his case for promotion with an open mind on the basis of his continu- ity in Shape- I." The judgment of this Court did clearly proceed on the footing that the lower medical cat- egorisation prejudiced the petitioner in the matter of obtaining appropri- ate promotions. For the rst time, the respondents have taken the stand in the contempt proceeding that the lower categorisation has nothing to do with the refusal to accord pro- motion to the petitioner. In the cir- cumstances indicated above, the plea

219

now advanced cannot be accepted. In fact, Mr. Ramaswamy, Addi- tional Solicitor General, appearing for the respondents being cognizant of this situation stated to us during the hearing of this application that the petitioner has justi cation to feel aggrieved.

The respondents have maintained that the petitioner has not served in the appropriate grades for the req- uisite period and has not possessed the necessary experience and train- ing and consequential assessment of ability which are a precondition for promotion. The defence services have their own peculiarities and spe- cial requirements. The considera- tions which apply to other govern- ment servants in the matter of pro- motion cannot as a matter of course be applied to defence personnel of the petitioner's category and rank.

Requisite experience, consequent exposer and appropriate review are indispensable for according promo- tion and the petitioner, therefore, cannot be given promotions as claimed by him on the basis that his batch-mates have earned such pro- motions. Individual capacity and special qualities on the basis of as- sessment have to be found but in the case of the petitioner these are not available. We nd force in the stand of the respondents and do not ac- cept the petitioner's contention that he can be granted promotion to the higher ranks as claimed by him by adopting the promotions obtained by his batch-mates as the measure.

In the appellate judgment, this Court said:

"He has also indicated in para- graph 8 of that petition that he is prepared to be released from ser- vice after his promotional entitle- ments are nalised and is given his dues on such basis as may be deter- mined. The appellant has claimed compensation which we see no basis to grant".

The petitioner also told us in course of the hearing of this case that even if he is not accorded promotions as claimed by him, he should suit- ably be compensated and thereafter he should be released from the Army on the basis of voluntary retirement. The respondents have also indicated that his retirement is being processed separately.

The question for consideration now is as to how the petitioner has to be compensated and what should be its measure. The petitioner has, of course, advanced tall claims by con- tending that he has su ered physi- cal and mental torture, loss of repu- tation and of social acceptance andnancial loss. What promotions the petitioner would otherwise have earned would be a matter of specu- lation and cannot be ascertained at this stage for lack of appropriate de- cisive criteria. His grievance that he su ered in dignity and humiliation as a result of being looked down upon by his batch-mates, friends and rel- atives has perhaps been su ciently met by the appellate judgment which has declared that his lower medi- cal categorisation was unjusti ed and the petitioner continued to be Shape- I without break from 1977.

The defence personnel have pecu-

220 Lt Col K.D. Gupta v. Union of India 1989

liar incidence of service. Life's course does not run smoothly for everyone. In the present proceeding which is for contempt, we do not think that we can award compensation under every head of claim. Some of fac- tors relevant for such purpose are the duration of time for which the peti- tioner was subjected to various med- ical checks and hospitalisation, and the consequent su ering which he underwent, the loss of promotional prospects and the fact that he would now be obliged to request to be re- leased from service prematurely. We are of the view that a total compen- sation of Rs. four lakhs would meet the ends of justice. This would obvi- ously mean that the petitioner would not be entitled to any other claim on these heads but we make it clear that he would be entitled to all other ser- vice bene ts which an o cer of the Lt. Colonel's rank, which the pe- titioner admittedly holds, would be

entitled to.

This judgment should serve the petitioner in vindication of his stand and to dispel clouds cast on his phys- ical and mental health by the pur- ported lower medical characterisa- tion and obviously in the event of his being considered for reemployment after retirement his suitability would be considered on the basis of his ser- vice records and the judgment of this Court.

We direct that the amount of Rs. four lakhs be paid to the petitioner within two months and the petitioner may be released from the defence ser- vice in accordance with any decision that may be taken on his request for such release.

The contempt proceeding is dis- posed of with these directions and no order as to costs.

G.N. Petition disposed of.

Chapter 16

S N Mukherjee v. Union Of India 1990

S.N. Mukherjee v. Union Of In-   1990 SCC (4) 594 JT 1990 (3) 630
dia on 28 August, 1990 Equivalent   1990 SCALE (2)383  
citations: 1990 AIR 1984, 1990 SCR    
  CITATOR INFO :  
Supl. (1) 44      
    RF 1991 SC 564 (6)  
Bench: Agrawal, S.C.    
  R 1992 SC1256 (7,9,11,14)
PETITIONER:    
    ACT:      
S.N. MUKHERJEE        
  Army Act 1950: Section
v.    
  164{Court Martial{Post con rma-
RESPONDENT:
tion petition{Central Government{
   
UNION OF INDIA Whether bound to give reasons.
DATE OF JUDGMENT28/08/1990   HEADNOTE:    
BENCH:     The Appellant was o ciating as
AGRAWAL, S.C. (J) a Major though he held a substan-
tive rank of Captain as a permanent
BENCH:  
  Commissioned O cer of the army
AGRAWAL, S.C. (J)
when on December 27, 1974 he took
   
MUKHARJI, SABYASACHI over as the O cer Commanding 38
(CJ)   Coy. A.S.C. (Sup) Type 'A' attached
KANIA, M.H.   to the Military Hospital, Jhansi. In
  August, 1975 the Appellant went
SHETTY, K.J. (J)
to attend a training course and re-
   
SAIKIA, K.N. (J) turned in the rst week of Novem-
   
CITATION:   ber. 1975. In his absence Captain
           
1990 AIR 1984 1990 SCR Supl. G.C. Chhabra was commanding the
(1) 44   unit of the appellant and he submit-
  ted a Contingent Bill dated Septem-
   
222 S N Mukherjee v. Union Of India 1990

ber 25, 1975 for Rs.16,280 for winter liveries of the depot civilian chowki- dars and sweepers. The said Bill was returned by the Controller of Defence Accounts (CDA) with cer- tain objections. Thereupon the ap- pellant submitted a fresh contingent Bill dated December 25, 1975 for a sum of Rs.7,029.57. In view of the wide di erence in the two Contingent Bills, the CDA reported the mat- ter to the Headquarters for investi- gation and a Court Enquiry blamed the appellant for certain lapses. Af- ter considering the said report of the Court of Enquiry the General O - cer Commanding, M.P., Bihar and Orissa recommended that 'severe dis- pleasure' (to be recorded) of the Gen- eral O cer Commanding-in-Chief of the Central Command be awarded to the appellant. The General O cer Commanding-in-Chief Central Com- mand, however. did not agree with the said opinion and by order dated August 26, 1977 directed that disci- plinary action be taken against the appellant for the lapses.

Pursuant to the said order a charge sheet dated July 20, 1978 con- taining three charges was served on the appellant and it was directed that he be tried by General Court Martial. The rst charge was, doing of a thing with intent to defraud under section 52(f) of the Act. The second charge was alternative to the rst charge i.e. committing an act prejudicial to good order and military discipline under section 63 of the Act and the third charge was also in respect of o ence under section 63 of the Act. 'the appellant pleaded not guilty to

the charges. The General Court Martial on November 29, 1978 found him guilty of rst and third charge and awarded the sentence of dis- missal from service. Thereupon the appellant submitted petition dated December 18, 1978 to the Chief of Army Sta praying that the ndings of the General Court Martial be not con rmed. The Chief of the Army Sta by his order dated May 11, 1979 con rmed the ndings and sen- tence of the General Court Martial. The appellant thereafter submitted a post-con rmation petition under sec- tion 164(2) of the Act. This was re- jected by the Central Government by order dated May 6, 1980. Thereupon the appellant led a writ petition in the High Court of Delhi which was dismissed in limine. Hence this ap- peal by special leave directed to be heard by the Constitution Bench for the reason that it involves the ques- tion as to whether it was incumbent for the Chief of the Army Sta , while con rming the ndings and sentence of the General Court Martial and for the Central Government while reject- ing the post-con rmation petition of the appellant to record their reasons for the orders passed by them.

Dismissing the appeal, this Court,

HELD: The requirement that reasons be recorded should govern the decisions of an administrative au- thority exercising quasi-judicial func- tions irrespective of the fact whether the decision is subject to appeal, re- vision or judicial review. It may, however, be added that it is not re- quired that the reasons should be

223

as elaborate as in the decision of a Court of law. The extent and na- ture of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indi- cate that the authority has given due consideration to the points in contro- versy. [62H; 63A-B]

The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it a rms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge. [63B]

Except in cases where the re- quirement has been dispensed with expressly or by necessary implica- tion, an administrative authority exercising judicial or quasi-judicial functions is required to record' the reasons for its decision.

The provisions contained in the Army Act, 1950 and the Army Rules, 1954 negative a requirement to give reasons for its ndings and sentence by a Court Martial and reasons are not required to be recorded in cases where the Court Martial makes a recommendation to mercy. Simi- larly, reasons are not required to be recorded for an order passed by the con rming authority con rming thendings and sentence recorded by the Court Martial as well as for the order passed by the Central Government dismissing the post-con rmation pe- tition. [70E-F]

Sub-section (1) of section 164 of

the Army Act enables a person ag- grieved by an order passed by a Court Martial to present a petition against the same. The expression "order" under sub-section (1) does not include a nding or sentence of the Court Martial and in so far as the nding and sentence of the Court Martial is concerned the only rem- edy that is available to a person ag- grieved by the same is under sub- section (2) of section 164 of the Army Act and the said remedy can be in- voked only after the nding or sen- tence has been con rmed by the con-rming authority and not before the con rmation of the same. [72B; D-E]

Though a person aggrieved by thending or sentence of a Court Mar- tial has no right to make a repre- sentation before the con rmation of the same by the con rming author- ity, but in case such a representation is made by a person aggrieved by thending or sentence of a Court Mar- tial it is expected that the con rm- ing authority shall give due consid- eration to the same while con rming the nding and sentence of the Court Martial. [72H; 73A]

Som Datt Datta v. Union of India & Ors., [1969] 2 S.C.R. 177; Bhagat Raja v. The Union of In- dia & Ors., [1967] 3 S.C.R. 302; Mahabir Prasad Sanotsh Kumar v. State of U.P. & Ors., [1971] 1 S.C.R. 201; Woolcombers of India Ltd. v. Woolcombers Workers Union & Ant., [1974] I S.C.R. 503; Siemens Engi- neering & Manufacturing Co. of In- dia Ltd. v. Union of India & Anr., [1976] Suppl. S.C.R. 489; Phelps Dodge Corporation v. National

224 S N Mukherjee v. Union Of India 1990

Labour Relations Board, [1940] 85 Law Edn. 1271 at p. 1284; Secu- rities and Exchange Commission v. Chenery Corporation, [1942] 87 Law Ed. 626 at p. 636; John T. Dun- lop v. Waiter Bachewski, [1975] 44 Law Ed. 2 377; Regina v. Gaming Board for Great Britain, Exparte Be- naim & Khaida, [1970] 2 Q.B. 417 at p. 431; Mc Innes v. Onslow-Fane & Anr., [1978] 1 W.I..R. 1520 at p. 1531; Breen v. Amalgamated Engi- neering Union & Ors., [1971] 2 Q.B. 175; Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] I.C.R. 120; Regina v. Immigration Appeal Tribunal Ex Parte Khan (Mahmud), [1983] Q.B. 790; Pure Spring Co. Ltd. v. Minister of National Rev- enue,

47

[1947] 1 D.L.R. 501 at p. 539; Re R.D.R. Construction Ltd. & Rent Review Commission, [1983] 139 D.L.R. 3d. 168; Re Yarmouth Hous- ing Ltd. & Rent Review Commis- sion, [1983] 139 D.L.R. (3d). 544; Osmond v. Public Service Board of New South Wales, [1985] 3 NSWLR 447; Public Service Board of New South Wales v. Osmond, [1986] 63 A.L.R. 559; M/s. Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhun- jhunwala & Ors., [1962] 2 S.C.R. 339; Madhya Pradesh Industries Ltd. v. Union of India & Ors., [1966] 1 S.C.R. 466; Tranvancore Rayon Ltd. v. Union of India, [1970] 3 S.C.R. 40; Tarachand Khatri v. Municipal Corporation of Delhi & Ors., [1977] 2 S.C.R. 198; Raipur Development Au- thority & Ors. v. M/s. Chokhamal Contractors & Ors., [1989] 2 S.C.C.

721; A.K. Kraipak & Ors. v. Union of India & Ors., [1970] 1 S.C.R. 457; R. v. Deputy Industrial Injuries Commissioner ex P. Moore, [1965] 1 Q.B. 456 and Mahon v. Air New Zealand Ltd., [1984] A.C. 648, re- ferred to.

JUDGMENT:

CIVIL APPELLATE JURIS- DICTION: Civil Appeal No. 417 of 1984.

From the Judgment and Order dated 12.8.1981 of the Delhi High Court in C.W.P. No. 1835 of 1981.

A.K. Ganguli, A. Sharan for the Appellant.

Kapil Sibal, Additional Solicitor General, Raju Ramachandran, Rajiv Dhawan, C.V. Subba Rao and Mrs. Sushma Suri for the Respondents.

T. Prasad for the Secretary, Min- istry of Defence. The Judgment of the Court was delivered by

S.C. AGRAWAL, J. This appeal, by special leave, is directed against the order dated August 12, 1981, passed by the High Court of Delhi dismissing the writ petition led by the appellant. In the writ petition the appellant had challenged the va- lidity of the nding and the sentence recorded by the General Court Mar- tial on November 29, 1978, the order dated May 11, 1979, passed by the Chief of Army Sta con rming thendings and the sentence recorded by the General Court Martial and the order dated May 6, 1980, passed by the Central Government dismissing the petition led by the appellant un- der Section 164(2) of the Army Act, 1950 (hereinafter referred to as 'the

225

Act'). 48

The appellant held a permanent commission, as an o cer, in the reg- ular army and was holding the sub- stantive rank of Captain. He was of-ciating as a Major. On December 27, 1974, the appellant took over as the O cer Commanding of 38 Coy. ASC (Sup) Type 'A' attached to the Military Hospital, Jhansi. In Au- gust 1975, the appellant had gone to attend a training course and he re- turned in the rst week of November 1975. In his absence Captain G.C. Chhabra was the o cer commanding the unit of the appellant. During this period Captain Chhabra submitted a Contingent Bill dated September 25, 1975 for Rs.16,280 for winter liver- ies of the depot civilian chowkidars and sweepers. The said Contingent Bill was returned by the Controller of Defence Accounts (CDA) Meerut with certain objections. Thereupon the appellant submitted a fresh Con- tingent Bill dated December 25, 1975 for a sum of Rs.7,029.57. In view of the di erence in the amounts men- tioned in the two Contingent Bills, the CDA reported the matter to the headquarters for investigation and a Court of Enquiry blamed the appel- lant for certain lapses.

The said report of the Court of Enquiry was considered by the Gen- eral O cer Commanding, M.P., Bi- har and Orissa Area, who, on Jan- uary 7, 1977 recommended that 'se- vere displeasure' (to be recorded) of the General O cer Commanding-in- Chief of the Central Command be awarded to the appellant. The Gen- eral O cer Commanding-in-Chief.

Central Command did not agree with the said opinion and by order dated August 26, 1977, directed that disci- plinary action be taken against the appellant for the lapses.

  In view of the aforesaid or-
der passed by the General O -

cer Commanding-in-Chief, Central Command, a charge sheet dated July 20. 1978, containing three charges was served on the appellant and it was directed that he be tried by Gen- eral Court Martial. The rst charge was in respect of the o ence under Section 52(f) of the Act, i.e. do- ing a thing with intent to defraud. the second charge was alternative to the rst charge and was in respect of o ence under Section 63 of the Act, i.e. committing an act prej- udicial to good order and military discipline and the third charge was also in respect of o ence under Sec- tion 63 of the Act. The appellant pleaded not guilty to the charges. The prosecution examined 22 wit- nesses to prove the charges. The General Court Martial. on Novem- ber 29, 1978, found the appellant not guilty of the second charge but found him guilty of the rst and the third charge and awarded the sen- tence of dismissal from service. The appellant submitted a petition dated December 18, 1978, to the Chief of Army Sta wherein he prayed that the ndings and the sentence of the General Court Martial be not con-rmed. The ndings and sentence of the General Court Martial were con rmed by the Chief of the Army Sta by his order dated May 11, 1979. The appellant, thereafter, sub-

226 S N Mukherjee v. Union Of India 1990

mitted a post-con rmation petition under Section 164(2) of the Act. The said petition of the appellant was re- jected by the Central Government by order dated May 6, 1980. The ap- pellant thereupon led the writ peti- tion in the High Court of Delhi. The said writ petition was dismissed, in limine, by the High Court by order dated August 12, 1981. The appel- lant approached this Court for grant of special leave to appeal against the said order of the Delhi High Court. By order dated January 24, 1984, special leave to appeal was granted by this Court. By the said order it was directed that the appeal be listed for nal hearing before the Constitu- tion Bench. The said order does not indicate the reason why the appeal was directed to be heard by the Con- stitution Bench. The learned coun- sel for the appellant has stated that this direction has been given by this Court for the reason that the appeal involves the question as to whether it was incumbent for the Chief of the Army Sta , while con rming thendings and the sentence of the Gen- eral Court Martial, and for the Cen- tral Government, while rejecting the post-con rmation petition of the ap- pellant, to record their reasons for the orders passed by them. We propose to deal with this questionrst. It may be mentioned that this question has been considered by this Court in Som Datt Datta v. Union of India and Others, [1969] 2 S.C.R. 177. In that case it was contended before this Court that the order of the Chief of Army Sta con rming the proceedings of the Court Martial under Section 164 of the Act was ille-

gal since no reason had been given in support of the order by the Chief of the Army Sta and that the Central Government had also not given any reason while dismissing the appeal of the petitioner in that case under Sec- tion 165 of the Act and that the or- der of the Central Government was also illegal. This contention was neg- atived. After referring to the provi- sions contained in Sections 164, 165 and 162 of the Act this Court pointed that while Section 162 of the Act ex- pressly provides that the Chief of the Army Sta may "for reasons based on the merits of the case" set aside the proceedings or reduce the sen- tence to any other sentence which the Court might have passed, there is no express obligation imposed by Sections 164 and 165 of the Act on the con rming authority or upon the Central Government to give reasons in support of its decision to con rm the proceedings of the Court Martial. This Court observed that no other section of the Act or any of the rules made

50

therein had been brought to its notice from which necessary implica- tion can be drawn that such a duty is cast upon the Central Government or upon the con rming authority. This Court did not accept the contention that apart from any requirement im- posed by the statute or statutory rule either expressly or by necessary im- plication, there is a general princi- ple or a rule of natural justice that a statutory tribunal should always and in every case give reasons m support of its decision.

227

Shri A.K. Ganguli has urged that the decision of this Court in Som Datt Datta's case (supra) to the ex- tent it holds that there is no gen- eral principle or rule of natural jus- tice that a statutory tribunal should always and in every case give reasons in support of its decision needs re- consideration inasmuch as it is not in consonance with the other decisions of this Court. In support of this sub- mission Shri Ganguli has placed re- liance on the decisions of this Court in Bhagat Raja v. The Union of In- dia and Others, [1967] 3 SCR 302; Mahabir Prasad Sanotsh Kumar v. State of U.P. and Others, [1971] 1 SCR 201; Woolcombers of India Ltd. v. Woolcombers Workers Union and Another, [1974] 1 S.C.R. 503 and Siemens Engineering & Manufactur- ing Co. of India Limited v. Union of India and Another, [1976] Suppl. S.C.R. 489. The learned Additional Solicitor General has refuted the said submission of Shri Ganguli and has submitted that there is no require- ment in law that reasons be given by the con rming authority while con-rming the nding or sentence of the Court Martial or by the Central Gov- ernment while dealing with the post- con rmation petition submitted un- der Section 164 of the Act and that the decision of this Court in Som Datt Datta's case (supra) in this re- gard does not call for reconsidera- tion.

The question under consideration can be divided into two parts:

(i) Is there any general principle of law which requires an administra- tive authority to record the reasons

for its decision; and

(ii) If so, does the said principle apply to an order con rming the nd- ings and sentence of a Court Mar- tial and post-con rmation proceed- ings under the Act? On the rst part of the question there is diver- gence of opinion in the common law countries. The legal position in the United States is di erent from that in other common law countries.

51

In the United States the courts have insisted upon recording of rea- sons for its decision by an adminis- trative authority on the premise that the authority should give clear in- dication that it has exercised the discretion with which it has been empowered because "administrative process will best be vindicated by clarity in its exercise" Phelps Dodge Corporation v. National Labour Re- lations Board, [1940] 85 Law Edn. 1271 at P. 1284. The said require- ment of recording of reasons has also been justi ed on the basis that such a decision is subject to judicial re- view and "the Courts cannot exercise their duty of review unless they are advised of the considerations under- lying the action under review" and that "the orderly functioning of the process of review requires that the grounds upon which the administra- tive agency acted be clearly disclosed and adequately sustained." Securi- ties and Exchange Commission v. Chenery Corporation, [1942] 87 Law Ed. 626 at P. 636. In John T. Dun- lop v. Waiter Bachowski, [1975] 44 Law Ed. 2 377) it has been observed that a statement of reasons serves

228 S N Mukherjee v. Union Of India 1990

purposes other than judicial review inasmuch as the reasons promotes thought by the authority and com- pels it to cover the relevant points and eschew irrelevancies and assures careful administrative consideration. The Federal Administrative Proce- dure Act, 1946 which prescribed the basic procedural principles which are to govern formal administrative pro- cedures contained an express provi- sion (Section g(b) ) to the e ect that all decisions shall indicate a state- ment of ndings and conclusions as well as reasons or basis the, for upon all the material issues of fact, law or discretion presented on the record. The said provision is now contained in Section 557(c) of Title 5 of the United States Code (1982 edition). Similar provision is contained in the state statutes.

In England the position at Com- mon law is that there is no require- ment that reasons should be given for its decision by the administrative authority (See: Regina v. Gaming Board for Great Britain Ex Party Be- naim and Khaida, [1970] 2 Q.B. 417 at p. 431 and McInnes v. Onslow- Fane and Another, [1978] 1 W.L.R. 1520 at p. 1531). There are, how- ever, observations in some judgments wherein the importance of reasons has been emphasised. In his dissent- ing judgment in Breen v. Amalga- mated Engineering Union and Oth- ers, [1971] 2 Q.B. 175 Lord Denning M.R., has observed that:

"the giving of reasons is one of the fundamental of good administra- tion." (P. 191)

In Alexander Machinery (Dud-

ley) Ltd. v. Crabtree, [1974] ICR 120 Sir John Donaldson, as President of the National Industrial Relations Court, has observed that: 52

"failure to give reasons amounts to a denial of justice." In Regina v. Immigration Appeal Tribunal Ex parte Khan (Mahmud), [1983] QB 790 Lord Lane, CJ., while express- ing his reservation on the proposi- tion that any failure to give reasons means a denial of justice, has ob- served: "A party appearing before a tribunal is entitled to know either ex- pressly stated by the tribunal or in- ferentially stated, what it is to which the tribunal is addressing its mind." (P. 794)

The Committee on Ministers' Powers (Donoughmore Committee) in its report submitted in 1932, rec- ommended that "any party a ected by a decision should be informed of the reasons on which the deci- sion is based" and that "such a de- cision should be in the form of a rea- soned document available to the par- ties a ected." (P. 100) The Commit- tee on Administrative Tribunals and Enquiries (Franks Committee) in its report submitted in 1957, recom- mended that "decisions of tribunals should be reasoned and as full as pos- sible." The said Committee has ob- served:

"Almost all witnesses have advo- cated the giving of reasoned decisions by tribunals. We are convinced that if tribunal proceedings are to be fair to the citizen reasons should be given to the fullest practicable extent. A decision is apt to be better if the reasons for it have to be set out in

229

writing because the reasons are then more likely to have been properly thought out. Further, a reasoned de- cision is essential in order that, where there is a right of appeal, the appli- cant can assess whether he has good grounds of appeal and know the case he will have to meet if he decides to appeal." (Para 98)

The recommendations of the Donoughmore Committee and the Franks Committee led to the enact- ment of the Tribunals and Enquiries Act, 1958 in United Kingdom. Sec- tion 12 of that Act prescribed that it shall be the duty of the Tribunal or Minister to furnish a statement, either written or oral, of the rea- sons for the decision if requested, on or before the giving of noti cation of the decision to support the deci- sion. The said Act has been replaced by the Tribunals and Enquiries Act, 1971 which contains a similar provi- sion in Section 12. This requirement is. however, con ned. in its applica- tions to tribunals and statutory au- thorities speci ed in Schedule I to the said enactment. In respect of the tri- bunals and authorities which are not covered by the aforesaid enactment, the position, as prevails at common law, applies. The Committee of JUS- TICE in its Report, Administration Under Law, submitted in 1971, has expressed the view:

"No single factor has inhibited the development of English admin- istrative law as seriously as the ab- sence of any general obligation upon public authorities to give reasons for their decisions."

The law in Canada appears to be

the same as in England. In Pure Spring Co. Ltd. v. Minister of Na- tional Revenue, [1947] 1 DLR 501 at P. 539 it was held that when a Minister makes a determination in his discretion he is not required by law to give any reasons for such a determination. In some recent de- cisions, however, the Courts have recognised that in certain situations there would be an implied duty to state the reasons or grounds for a decision (See: Re R D.R. Construc- tion Ltd. And Rent Review Com- mission, [1983] 139 DLR (3d) 168) and Re Yarmouth Housing Ltd. And Rent Review Commission, [1983] 139 DLR (3d) 544. In the Province of Ontario the Statutory Powers Pro- cedure Act, 1971 was enacted which provided that "a tribunal shall give its nal decision, if any, in any pro- ceedings in writing and shall give reasons in writing therefore if re- quested by a party." (Section 17). The said Act has now been replaced by the Statutory Powers and Proce- dure Act, 1980, which contains a sim- ilar provision.

The position at common law is no di erent in Australia. The Court of Appeal of the Supreme Court of New South Wales in Osmond v. Public service Board of New South Wales, [1985] 3 NSWLR 447) had held that the common law requires those entrusted by Statute with the discretionary power to make deci- sions which will a ect other persons to act fairly in the performance of their statutory functions and nor- mally this will require an obligation to state the reasons for their deci-

230 S N Mukherjee v. Union Of India 1990

sions. The said decision was over- ruled by the High Court of Australia in Public Service Board of New South Wales v. Osmond, [1986] 63 ALR 559 and it has been held that there is no general rule of the common law, or principle of natural justice, that requires reasons to be given for ad- ministrative decisions, even decisions which have been made in the ex- ercise of a statutory discretion and which may adversely a ect the inter- ests or defeat the legitimate or rea- sonable expectations, of other per- sons. Gibbs CJ., in his leading judg- ment, has expressed the view that "the 'rules of natural justice are de- signed to ensure fairness in the mak- ing of a decision and it is di cult to see how the fairness of an admin- istrative decision can be a ected by what is done after the decision has been made." The learned Chief Jus- tice has. however. observed that "even assuming that in special cir- cumstances natural justice may re- quire reasons to be given, the present case is not such a case." (P. 568). Deane J., gave a concurring judg- ment, wherein after stating that "the exercise of a decision making power in a way which adversely a ects oth- ers is less likely to be. or appear to be, arbitrary if the decision maker formulates and provides reasons for his decision", the learned Judge has proceeded to hold that "the stage has not been reached in this coun- try where it is a general prima fa- cie requirement of the common law rules of natural justice or procedu- ral fair play that the administrative decision maker having extended to persons who might be adversely af-

fected by a decision an adequate op- portunity of being heard. is bound to furnish reasons for the exercise of a statutory decision making power." (P. 572). The learned Judge has fur- ther observed that the common law rules of natural justice or procedu- ral fair play are neither standardized nor immutable and that their content may vary with changes in contem- porary practice and standards. In view of the statutory developments that have taken place in other coun- tries to which reference was made by the Court of Appeal, Deane, J. has observed that the said develop- ments "are conducive to an environ- ment within which the courts should be less reluctant than they would have been in times past to discern in statutory provisions a legislative intent that the particular decision maker should be under a duty to give reasons." (P. 573).

This position at common law has been altered by the Common- wealth Administrative Decisions (Ju- dicial Review) Act. 1977. Section 13 of the said Act enables a person who is entitled to apply for review the decision before the Federal Court to request the decision maker to fur- nish him with a statement in writ- ing setting out the ndings on mate- rial questions of fact, referring to the evidence or other material on which those ndings were based and giving the reasons for the decision and on such a request being made the deci- sion maker has to prepare the state- ment and furnish it to the persons who made the request as soon as practicable and in any event within

231

28 days. The provisions of this Act are not applicable to the classes of decisions mentioned in Schedule I to the Act. A similar duty to give reasons has also been imposed by Sections 28 and 37 of the common- wealth Administrative Appeals Tri- bunal Act. 1975.

In India the matter was consid- ered by the Law Commission in the 14th Report relating to reform in Judicial Administration. The Law Commission recommended:

\In the case of administrative de- cisions provision should be made that they should be accompanied by rea- sons. The reasons will make it possi- ble to test the validity of these deci- sions by the machinery of appropri- ate writs." (Vol. II P. 694).

No laws has, however, been en- acted in pursuance of these recom- mendations, imposing a general duty to record the reasons for its deci- sion by an administrative authority though the requirement to give rea- sons is found in some statutes.

  The question as to whether
an administrative authority should

record the reasons for its decision has come up for consideration be- fore this Court in a number of cases. In M/s. Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala and Others, [1962] 2 SCR 339, a Consti- tution Bench of this Court. while dealing with an order passed by the Central Government in exercise of its appellate powers under Section 111(3) of the Companies Act, 1956 in the matter of refusal by a company to register the transfer of shares, has

held that there was no proper trial of the appeals before the Central Gov- ernment since no reasons had been given in support of the order passed by the Deputy Secretary who heard the appeals. In that case it has been observed:

\If the Central Government acts as a tribunal exercising judicial pow- ers and the exercise of that power is subject to the jurisdiction of this Court under Article 136 of the Con- stitution we fail to see how the power of this Court can be e ectively exer- cised if reasons are not given by the Central Government in support of its order." (P. 357) In Madhya Pradesh Industries Ltd. v. Union of India and Others, [1966] 1 S.C.R. 466 the order passed by the Central Govern- ment dismissing the revision petition under Rule 55 of the Mineral Conces- sion Roles, 1960, was challenged be- fore this Court on the ground that it did not contain reasons. Bachawat, J., speaking for himself and Mud- holkar, J., rejected this contention on the view that the reason for re- jecting the revision application ap- peared on the face of the order be- cause the Central Government had agreed with the reasons given by the State Government in its order. The learned Judges did not agree with the submission that omission to give reasons for the decision is of itself a su cient ground for quashing it and held that for the purpose of an appeal under Article 136 orders of courts and tribunals stand on the same footing. The learned Judges pointed out that an order of court dismissing a revision application of-

232 S N Mukherjee v. Union Of India 1990

ten gives no reasons but this is not a su cient ground for quashing it and likewise an order of an admin- istrative tribunal rejecting a revision application cannot be pronounced to be invalid on the sole ground that it does not give reasons for the re- jection. The decision in Hari Nagar Sugar Mills case (supra) was distin- guished on the ground that in that case the Central Government had re- versed the decision appealed against without giving any reasons and the record did not disclose any apparent ground for the reversal. According to the learned Judges there is a vital di erence between an order of rever- sal and an order of a rmance. Subba Rao, J., as he then was, did to con- cur with this view and found that the order of the Central Government was vitiated as it did not disclose any rea- sons for rejecting the revision appli- cation. The learned Judge has ob- served:

\In the context of a welfare State, administrative tribunals have come to stay. Indeed, they are the neces- sary concomitants of a Welfare State. But arbitrariness in their function- ing destroys the concept of a welfare State itself. Self-discipline and su- pervision exclude or at any rate min- imize arbitrariness. The least a tri- bunal can do is to disclose its mind. The compulsion of disclosure guar- antees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appel- late or supervisory court to keep the

tribunals within bounds, A reasoned order is a desirable condition of judi- cial disposal." (P. 472). \If tribunals can make orders without giving rea- sons, the said power in the hands of unscrupulous or dishonest o cer may turn out to be a potent weapon for abuse of power. But, if reasons for an order are given, it will be an e ective restraint on such abuse, as the order, if its discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and cor- rection. A speaking order will at its best be a reasonable and at its worst be at least a plausible one. The pub- lic should not be deprived of this only safeguard." (P. 472).

\There is an essential distinction between a court and an administra- tive tribunal. A Judge is trained to look at things objectively, unin-uenced by considerations of policy or expediency; but an executive o - cer generally looks at things from the standpoint of policy and expediency. The habit of mind of an executive of-cer so formed cannot be expected to change from function to function or from act to act. So it is essential that some restrictions shall be imposed on tribunals in the matter of passing or- ders a ecting the rights of parties; and the least they should do is to give reasons for their orders. Even in the case of appellate courts invari- ably reasons are given, except when they dismiss an appeal or revision in limine and that is because the appel- late or revisional court agrees with the reasoned judgment of the subor- dinate court or there are no legally permissible grounds to interfere with

233

it. But the same reasoning cannot apply to an appellate tribunal, for as often as not the order of the rst tri- bunal is laconic and does not give any reasons." (P. 472-73).

With reference to an order of af-rmance the learned Judge observed that where the original tribunal gives reasons, the appellate tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons and that what is essential is that reasons shall be given by an appellate or revisional tribunal ex- pressly or by reference to those given by the original tribunal. This mat- ter was considered by a Constitution Bench of this Court in Bhagat Raja case (supra) where also the order un- der challenge had been passed by the Central Government in exercise of its revisional powers under Section 30 of the Mines and Minerals (Regu- lation and Development) Act, 1957 read with rules 54 and 55 of the Min- eral Concession Rules, 1960. Dealing with the question as to whether it was incumbent on the Central Gov- ernment to give any reasons for its decision on review this Court has ob- served:

\The decisions of tribunals in In- dia are subject to the supervisory powers of the High Courts under Art. 227 of the Constitution and of appel- late powers of this Court under Art. 136. It goes without saying that both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word 'rejected', or 'dismissed'. In such a case, this Court can prob-

ably only exercise its appeallate ju- risdiction satisfactorily by examining the entire records of the case and af- ter giving a hearing come to its con- clusion on the merits of the appeal. This will certainly be a very unsat- isfactory method of dealing with the appeal." (P. 309).

This Court has referred to the de- cision in Madhya pradesh Industries case (supra) and the observations of Subba Rao, J., referred to above, in that decision have been quoted with approval. After taking note of the observations of Bachawat, J., in that case, the learned Judges have held: \After all a tribunal which ex- ercises judicial or quasijudicial pow- ers can certainly indicate its mind as to why it acts in a particular way and when important rights of parties of far reaching consequences to them are adjudicated upon in a summary fashion, without giving a personal hearing when proposals and counter proposals are made and examined, the least that can be expected is that the tribunals shall tell the party why the decision is going against him in all cases where the law gives a fur- ther right of appeal.\ (P.315).

Reference has already been made to Som Datt Datta's case (supra) wherein a Constitution Bench of this Court has held that the con rming authority, while con rming the nd- ings and sentence of a Court Martial, and the Central Government, while dealing with an appeal under Section 165 of the Act, are not required to record the reasons for their decision and it has been observed that apart from any requirement imposed by the

234 S N Mukherjee v. Union Of India 1990

statute or statutory rule either ex- pressly or by necessary implication, it could not be said that there is any general principle or any rule of nat- ural justice that a statutory tribunal should always and in every case give reasons in support of its decision. In that case the Court was primarily concerned with the interpretation of the provisions of Act and the Army Rules, 1954. There is no reference to the earlier decisions in Harinagar Sugar Mills case (supra) and Bha- gat Raja case (supra) wherein the duty to record reasons was imposed in view of the appellate jurisdiction of this Court and the supervisory ju- risdiction of the High Court under Articles 136 and 227 of the Consti- tution of India respectively.

In Travancore Rayon Ltd. v. Union of India, [1970] 3 SCR 4(1 this Court has observed:

\The Court insists upon disclo- sure of reasons in support of the or- der on two grounds; one, that the party aggrieved in a proceedings be- fore the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the au- thority to reject his case were erro- neous; the other, that the obligation to record reasons operates as a deter- rent against possible arbitrary action by the executive authority invested with the judicial power." (P. 46) In Mahabir Prasad Sanotsh Kumar v. State of U.P. and Others (supra) the District Magistrate had cancelled the licence granted under the' U.P Sugar Dealers' Licensing Order, 1962 with- out giving any reason and the State Government had dismissed the ap-

peal against the said order of the District Magistrate without record- ing the reasons. This Court has held:

\The practice of the executive au- thority dismissing statutory appeal against orders which prima facie se- riously prejudice the rights of the ag- grieved party without giving reasons is a negation of the rule of law." (P. 204) \Recording of reasons in sup- port of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached accord- ing to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinar- ily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to ap- peal, the necessity to record reasons is greater, for without recorded rea- sons the appellate authority has no material on which it may determine whether the facts were properly as- certained, the relevant law was cor- rectly applied and the decision was just." (P. 205)

In Woolcombers of India Ltd. case (supra) this Court was dealing with an award of an Industrial Tri- bunal. It was found that the award stated only the conclusions and it did not give the supporting reasons. This Court has observed: \The giving of reasons in support of their conclu- sions by judicial and quasi-judicial authorities when exercising initial ju- risdiction is essential for various rea- sons. First, it is calculated to pre- vent unconscious unfairness or arbi- trariness in reaching the conclusions. The very search for reasons will put

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the authority on the alert and min- imise the chances of unconscious in-ltration of personal bias or unfair- ness in the conclusion. The author- ity will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrel- evant or extraneous considerations. Second, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the de- cision of judicial and quasi-judicial authorities to this Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court." (P. 507)

In Siemens Engineering & Manu- facturing Co. of India Limited case (supra) this Court was dealing with an appeal against the order of the Central Government on a revision application under the Sea Customs Act, 1878. This Court has laid down:

\It is now settled law that where an authority makes an order in ex- ercise of a quasi-judicial function it must record its reasons in support of the order it makes. Every quasijudi- cial order must be supported by rea- sons." (P 495) \If courts of law are to be replaced by administrative au- thorities and tribunals, as indeed, in some kinds of cases, with the prolif- eration of Administrative Law they may have to be so replaced, it is es-

sential that administrative authori- ties and tribunals should accord fair and proper hearing to the persons sought to be a ected by their orders and give su ciently clear and explicit reasons in support of the orders made by them. Then along administra- tive authorities and tribunals, exer- cising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring con dence in the adjudica- tory process. The rule requiring rea- sons to be given in support of an or- der is, like the principle of audi al- teram partera, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compli- ance with it would not satisfy the re- quirement of law." (496)

Tarachand Khatri v. Munici- pal Corporation of Delhi & Others, [1977] 2 SCR 198 was a case where an inquiry was conducted into charges of misconduct and the disciplinary au- thority, agreeing with the ndings of the Inquiry O cer, had imposed the penalty of dismissal. The said order of dismissal was challenged on the ground that the disciplinary author- ity had not given its reasons for pass- ing the order. The said contention was negatived by this Court and dis- tinction was drawn between an order of a rmance and an order of rever- sal. It was observed:

\ ..... while it may be neces- sary for a disciplinary or adminis- trative authority exercising quasiju- dicial functions to state the reasons in support of its order if it di ers

236 S N Mukherjee v. Union Of India 1990

from the conclusions arrived at and the recommendations made by the Inquiry O cer in view of the scheme of a particular enactment or the rules made thereunder, it would be lay- ing down the proposition too broadly to say that even an ordinary con- currence must be supported by rea- sons." (P. 208) In Raipur Develop- ment Authority and Others v. Mls. Chokhamal Contractors and Others, [1989] 2 S.C.C. 721 a Constitution Bench of this Court was consider- ing the question whether it is obliga- tory for an arbitrator under the Ar- bitration Act, 194(1 to give reasons for the award. It was argued that the requirement of giving reasons for the decision is a part of the rules of natural justice which are also appli- cable to the award of an arbitrator and reliance was placed on the de- cisions in Bhagat Raja case (Supra) and Siemens Engineering Co. case (Supra). The said contention was rejected by this Court. After re- ferring to the decisions in Bhagat Raja case (Supra); Som Datt Datta case (Supra) and Siemens Engineer- ing Co. case (Supra) this Court has observed:

\It is no doubt true that in the decisions pertaining to Administra- tive Law, this court in some cases has observed that the giving of reasons in an administrative decision is a rule of natural justice by an extension of the prevailing rules. It would be in the interest of the world of commerce that the said rule is con ned to the area of Administrative Law ..... But at the same time it has to be borne in mind that what applies generally

to settlement of disputes by authori- ties governed by public law need not be extended to all cases arising under private law such as those arising un- der the law of arbitration which is in- tended for settlement of private dis- putes." (P. 751-52)

The decisions of this Court re- ferred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the Amer- ican Courts. An important consid- eration which has weighed with the Court for holding that an admin- istrative authority exercising quasi- judicial functions must record the reasons for its decision, is that such a decision is subject to the appel- late jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the rea- sons, if recorded, would enable this Court or the High Courts to e ec- tively exercise the appellate or su- pervisory power. But this is not the sole consideration. The other con- siderations which have also weighed with the Court in taking this view are that the requirement of record- ing reasons would (i) guarantee con- sideration by the authority; (ii) in- troduce clarity in the decisions; and (iii) minimise chances of arbitrari- ness in decisionmaking. In this re- gard a distinction has been drawn be- tween ordinary Courts of law and tri- bunals and authorities exercising ju- dicial functions on the ground that a Judge is trained to look at things ob- jectively unin uenced by considera-

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tions of policy or expediency whereas an executive o cer generally looks at things from the standpoint of policy and expediency.

Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi- judicial functions, would no doubt facilitate the exercise of its jurisdic- tion by the appellate or supervisory authority. But the other considera- tions, referred to above, which have also weighed with this Court in hold- ing that an administrative authority must record reasons for its decision, are of no less signi cance. These considerations show that the record- ing of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbi- trariness and ensures a degree of fair- ness in the process of decision mak- ing. The said purpose would apply equally to all decisions and its ap- plication cannot be con ned to de- cisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should gov- ern the decisions of an administra- tive authority exercising quasijudi- cial functions irrespective of the fact whether the decision is subject to ap- peal, revision or judicial review. It may, however, be added

63

that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit

so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revi- sional authority, if it a rms such an order, need not give separate reasons if the appellate or revisional author- ity agrees with the reasons contained in the order under challenge.

Having considered the rationale for the requirement to record the rea- sons for the decision of an admin- istrative authority exercising quasi- judicial functions we may now exam- ine the legal basis for imposing this obligation. While considering this aspect the Donough more Committee observed that it may well be argued that there is a third principle of natu- ral justice, namely, that a party is en- titled to know the reason for the de- cision, be it judicial or quasi-judicial. The committee expressed the opin- ion that \there are some cases where the refusal to give grounds for a deci- sion may be plainly unfair; and this may be so, even when the decision isnal and no further proceedings are open to the disappointed party by way of appeal or otherwise" and that \where further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tri- bunal should deprive them of the op- portunity." (P 80) Prof. H.W.R. Wade has also expressed the view that \natural justice may provide the best rubric for it, since the giving of reasons is required by the ordi- nary man's sense of justice." (See

238 S N Mukherjee v. Union Of India 1990

Wade, Administrative Law, 6th Edn. P. 548). In Siemens Engineering Co. case (Supra) this Court has taken the same view when it observed that \the rule requiring reasons to be given in support of an order is, like the prin- ciples of audi alteram parlem, a ba- sic principle of natural justice which must inform every quasi-judicial pro- cess." This decision proceeds on the basis that the two well known prin- ciples of natural justice, namely (i) that no man should be a Judge in his own cause and (ii) that no person should be judged without a hearing, are not exhaustive and that in addi- tion to these two principles there may be rules which seek to ensure fairness in the process of decision making and can be regarded as part of the prin- ciples of natural justice. This view is in consonance with the law laid down by this Court in A.K. Kraipak and Others v. Union of India and Oth- ers, [1970] 1 SCR 457, wherein it has been held:

\The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without a ording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more sub- sidiary rules came to be added to the

rules of natural justice." (P. 468-69) A similar trend is discernible in the decisions of English Courts wherein it has been held that natural justice demands that the decision should be based on some evidence of probative value. (See: R. v. Deputy Industrial Injuries Commissioner ex P. Moore, [1965] 1 Q.B. 456; Mahon v. Air New Zealand Ltd., [1984] A.C. 648.

The object underlying the rules of natural justice \is to prevent mis- carriage of justice" and secure \fair- play in action." As pointed out ear- lier the requirement about record- ing of reasons for its decision by an administrative authority exercis- ing quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision making. Keeping in view the ex- panding horizon of the principles of natural justice, we are of the opin- ion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by admin- istrative authorities. The rules of natural justice are not embodied rules. The extent of their appli- cation depends upon the particular statutory framework whereunder ju- risdiction has been conferred on the administrative authority. With re- gard to the exercise of a particu- lar power by an administrative au- thority including exercise of judicial or quasi-judicial functions the legisla- ture, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the adminis-

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trative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that a ect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative De- cisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain speci ed authorities are excluded from the ambit of the en- actment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the 65

enactment. The public in- terest underlying such a provision would outweight the salutary pur- pose served by the requirement to record the reasons. The said require- ment cannot, therefore, be insisted upon in such a case.

For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dis- pensed with expressly or by nec- essary implication, an administra- tive authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. We may now come to the second part of the question, namely, whether the con rming authority is required to record its reasons for con rming the nding and sentence of the court martial and the Central Government or the competent authority entitled to deal with the post-con rmation petition is required to record its rea- sons for the order passed by it on such petition. For that purpose it will be necessary to determine

whether the Act or the Army Rules, 1954 (hereinafter referred to as 'the Rules') expressly or by necessary im- plication dispense with the require- ment of recording reasons. We pro- pose to consider this aspect in a broader perspective to include thendings and sentence of the court martial and examine whether rea- sons are required to be recorded at the stage of (i) recording of nd- ings and sentence by the court mar- tial; (ii) con rmation of the nd- ings and sentence of the court mar- tial; and (iii) consideration of post- con rmation petition. Before refer- ring to the relevant provisions of the Act and the Rules it may be men- tioned that the Constitution contains certain special provisions in regard to members of the Armed Forces. Arti- cle 33 empowers Parliament to make law determining the extent to which any of the rights conferred by Part Ill shall, in their application to the members of the Armed Forces be re- stricted or abrogated so as to en- sure the proper discharge of their du- ties and the maintenance of discipline amongst them. By clause (2) of Ar- ticle 136 the appellate jurisdiction of this Court under Article 136 of the Constitution has been excluded in relation to any judgment, determi- nation, sentence or order passed or made by any Court or tribunal con- stituted by or under any law relat- ing to the Armed Forces. Similarly clause (4) of Article 227 denies to the High Courts the power of superin- tendence over any Court or tribunal constituted by or under any law re- lating to the Armed Forces. This Court under Article 32 and the High

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Courts under Article 226 have, how- ever, the power of judicial review in respect of proceedings of courts mar- tial and the proceedings subsequent thereto and can grant appropriate re- lief if the said proceedings have re- sulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said pro- ceedings su er from a jurisdictional error or any error of law apparent on the face of the record.

Reference may now be made to the provisions of the Act and the Rules which have a bearing on the requirement to record reasons for thendings and sentence of the court martial. Section 108 of the Act makes provision for four kinds of courts martial, namely, (a) general courts martial; (b) district courts martial; (c) summary general courts martial and (d) summary courts martial. The procedure of court mar- tial is prescribed in Chapter XI (Sec- tions 128 to 152) of the Act. Sec- tion 129 prescribes that every general court martial shall, and every dis- trict or summary general court mar- tial, may be attended by a judge ad- vocate, who shall be either an o - cer belonging to the department of the Judge Advocate General, or if no such o cer is available, an o - cer approved of by the Judge Advo- cate General or any of his deputies. In sub-section (1) of Section 131 it is provided that subject to the provi- sions of sub-sections (2) and (3) ev- ery decision of a court martial shall be passed by an absolute majority of votes, and where there is an equal- ity of votes on either the nding or

the sentence, the decision shall be in favour of the accused. In sub- section (2) it is laid down that no sentence of death shall be passed by a general court martial without the concurrence of at least two-thirds of the members of the court and sub- section (3) provides that no sentence of death shall be passed by a sum- mary general court martial without the concurrence of all the members. With regard to the procedure at trial before the General and District courts martial further provisions are made in Rules 37 to 105 of the Rules. In Rule 60 it is provided that the judge advocate (if any) shall sum up in open court the evidence and ad- vise the court upon the law relating to the case and that after the sum- ming up of the judge advocate no other address shall be allowed. Rule 61 prescribes that the Court shall de- liberate on its ndings in closed court in the presence of the judge advo- cate and the opinion of each member of the court as to the nding shall be given by word of mouth on each charge separately. Rule 62 prescribes the form, record and announcement of nding and in sub-rule (1) it is provided that the nding on every charge upon which the accused is ar- raigned shall be recorded and, ex- cept as provided in these rules, shall be recorded simply as a nding of \Guilty" or of \Not guilty". Sub-rule (10) of Rule 62 lays down that thending on charge shall be announced forthwith in open court as subject to con rmation. Rule 64 lays down that in cases where the nding on any charge is guilty, the court, before deliberating on its sentence, shall,

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whenever possible take evidence in the matters speci ed in sub-rule (1) and thereafter the accused has a right to address the court thereon and in mitigation of punishment. Rule 65 makes provision for sentence and pro- vides that the court shall award a sin- gle sentence in respect of all the of- fences of which the accused is found guilty, and such sentence shall be deemed to be awarded in respect of the o ence in each charge and in respect of which it can be legally given, and not to be awarded in re- spect of any o ence in a charge in respect of which it cannot be legally given. Rule 66 makes provisions for recommendation to mercy and sub- rule (1) prescribes that if the court makes a recommendation to mercy, it shall give its reasons for its rec- ommendation. Sub-rule (1) of Rule 67 lays down that the sentence to- gether with any recommendation to mercy and the reasons for any such recommendation will be announced forthwith in open court. The pow- ers and duties of judge advocate are prescribed in Rule 105 which, among other things, lays down that at the conclusion of the case he shall sum up the evidence and give his opinion upon the legal bearing of the case be- fore the court proceeds to deliberate upon its nding and the court, in fol- lowing the opinion of the judge advo- cate on a legal point may record that it has decided in consequences of that opinion. The said rule also prescribes that the judge advocate has, equally with the presiding o cer, the duty of taking care that the accused does not su er any disadvantage in con- sequences of his position as such, or

of his ignorance or incapacity to ex- amine or cross-examine witnesses or otherwise, and may, for that purpose, with the permission of the court, call witnesses and put questions to wit- nesses, which appear to him neces- sary or desirable to elicit the truth. It is further laid down that in ful-lling his duties, the judgeadvocate must be careful to maintain an en- tirely impartial position. From the provisions referred to above it is evi- dent that the judge advocate plays an important role during the courts of trial at a general court martial and he is enjoined to maintain an impartial position. The court martial records its ndings after the judge advocate has summed up the evidence and has given his opinion upon the legal bear- ing of the case. The members of the court have to express their opinion as to the nding by word of mouth on each charge separately and the nd- ing on each charge is to be recorded simply as a nding of \guilty" or of \not guilty". It is also required that the sentence should be announced forthwith in open court. Moreover Rule 66(1) requires reasons to be recorded for its recommendation in cases where the court makes a rec- ommendation to mercy. There is no such requirement in other provisions relating to recording of ndings and sentence. Rule 66(1) proceeds on the basis that there is no such require- ment because if such a requirement was there it would not have been nec- essary to have a speci c provision for recording of reasons for the recom- mendation to mercy. The said pro- visions thus negative a requirement to give reasons for its nding and

242 S N Mukherjee v. Union Of India 1990

sentence by the court martial and reasons are required to be recorded only in cases where the court martial makes a recommendation to mercy. In our opinion, therefore, at the stage of recording of ndings and sentence the court martial is not required to record its reasons and at that stage reasons are only required for the rec- ommendation to mercy if the court martial makes such a recommenda- tion.

As regards con rmation of thendings and sentence of the court martial it may be mentioned that Section 153 of the Act lays down that no nding or sentence of a General, District or summary General Court Martial shall be valid except so far as it may be con rmed as provided by the Act. Section 158 lays down that the con rming authority may while con rming the sentence of a court martial mitigate or remit the pun- ishment thereby awarded, or com- mute that punishment to any pun- ishment lower in the scale laid down in Section 71. Section 160 empowers the con rming authority to revise thending or sentence of the court mar- tial and in sub-section (1) of Section 160 it is provided that on such revi- sion, the court, if so directed by the con rming authority, may take addi- tional evidence. The con rmation of the nding and sentence is not re- quired in respect of summary court martial and in Section 162 it is pro- vided that the proceedings of every summary court martial shall With- out delay be forwarded to the o cer commanding the division or brigade within which the trial was held or to

the prescribed o cer; and such o - cer or the Chief of the Army Sta or any o cer empowered in this behalf may, for reasons based on the mer- its of the case, but not any merely technical grounds, set aside the pro- ceedings or reduce the sentence to any other sentence which the court might have passed. In Rule 69 it is provided that the proceedings of a general court martial shall be sub- mitted by the judge advocate at the trial for review to the deputy or as- sistant judge advocate general of the command who shall then forward it to the con rming o cer and in case of district court martial it is provided that the proceedings should be sent by the presiding o cer, who must, in all cases. where the sentence is dis- missal or above, seek advice of the deputy or assistant judge advocate general of the command before con-rmation. Rule 70 lays down that upon receiving the proceedings of a general or district Court Martial, the con rming authority may con rm or refuse con rmation or reserve con-rmation for superior authority, and the con rmation, non-con rmation, or reservation shall be entered in and form part of the proceedings. Rule 71 lays down that the charge, nding and sentence, and any recommenda- tion to mercy shall, together with the con rmation or non-con rmation of the proceedings, be promulgated in such manner as the con rming au- thority may direct, and if no direc- tion is given, according to custom of the service and until promulgation has been e ected, con rmation is not complete and the nding and sen- tence shall not be held to have been

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con rmed until they have been pro- mulgated.

The provisions mentioned above show that con rmation of the nd- ings and sentence of the court mar- tial is necessary before the said nd- ing or sentence become operative. In other words the con rmation of thendings and sentence is an integral part of the proceedings of a court martial and before the ndings and sentence of a court martial are con-rmed the same are examined by the deputy or assistant judge advocate general of the command which is in- tended as a check on the legality and propriety of the proceedings as well as the ndings and sentence of the court martial. Moreover we nd that in Section 162 an express provision has been made for recording of rea- sons based on merits of the case in re- lation to the proceedings of the sum- mary court martial in cases where the said proceedings are set aside or the sentence is reduced and no other requirement for recording of reasons is laid down either in the Act or in the Rules in respect of proceedings for con rmation. The only inference that can be drawn from Section 162 is that reasons have to be recorded only in cases where the proceedings of a summary court martial are set aside or the sentence is reduced and not when the ndings and sentence are con rmed. Section 162 thus neg- atives a requirement to give reasons on the part of the con rming au- thority while con rming the ndings and sentence of a court martial and it must be held that the con rming authority is not required to record

reasons while con rming the ndings and sentence of the court martial.

With regard to post-con rmation proceedings we nd that subsection

(2) of Section 164 of the Act pro- vides that any person subject to the Act who considers himself aggrieved by a nding or sentence of any court martial which has been con rmed, may present a petition to the Central Government, the Chief of the Army Sta or any prescribed o cer supe- rior in command to the one who con-rmed such nding or sentence and the Central Government, the Chief of the Army Sta or other o cer, as the case may be, may pass such or- ders thereon as it or he thinks t. In so far as the ndings and sentence of a court martial and the proceedings for con rmation of such ndings and sentence are concerned it has been found that the scheme of the Act and the Rules is such that reasons are not required to be recorded for the same. Has the legislature made a de- parture from the said scheme in re- spect of post-con rmation proceed- ings? There is nothing in the lan- guage of sub-section (2) of Section 164 which may lend support to such an intention. Nor is there anything in the nature of post con rmation pro- ceedings which may require record- ing of reasons for an order passed on the post-con rmation petition even though reasons are not required to be recorded at the stage of recording of ndings and sentence by a court martial and at the stage of con rma- tion of the ndings and sentence of the court martial by the con rming authority. With regard to recording

244 S N Mukherjee v. Union Of India 1990

of reasons the considerations which apply at the stage of recording ofndings and sentence by the court martial and at the stage of con rma- tion of ndings and sentence of the court martial by the con rming au- thority are equally applicable at the stage of consideration of the post- con rmation petition. Since reasons are not required to be recorded at the rst two stages referred to above, the said requirement cannot, in our opinion, be insisted upon at the stage of consideration of post-con rmation petition under Section 164(2) of the Act.

For the reasons aforesaid it must be held that reasons are not re- quired to be recorded for an order passed by the con rming authority con rming the ndings and sentence recorded by the court martial as well as for the order passed by the Cen- tral Government dismissing the post- con rmation petition. Since we have arrived at the same conclusion as in Sorn Datt Datta case (Supra) the submission of Shri Ganguli that the said decision needs reconsideration cannot be accepted and is. there- fore, rejected. But that is not the end of the matter because even though there is no requirement to record reasons by the con rming author- ity while passing the order con rm- ing the ndings and sentence of the Court Martial or by the Central Gov- ernment while passing its order on the post-con rmation petition, it is open to the person aggrieved by such an order to challenge the validity of the same before this Court under Ar- ticle 32 of the Constitution or before

the High Court under Article 226 of the Constitution and he can ob- tain appropriate relief in those pro- ceedings. We will, therefore, exam- ine the other contentions that have been urged by Shri Ganguli in sup- port of the appeal. The rst con- tention that has been urged by Shri Ganguli in this regard is that un- der sub-section (1) of Section 164 of the Act the appellant had a right to make a representation to the con-rming authority before the con r- mation of the ndings and sentence recorded by the court martial and that the said right was denied inas- much as the appellant was not sup- plied with the copies of the relevant record of the court martial to en- able him to make a complete repre- sentation and further that the repre- sentation submitted by the appellant under sub-section (1) of Section 164 was not considered by the con rm- ing authority before it passed the or- der dated May 11, 1979 con rming the ndings and sentence of the court martial. The learned Additional So- licitor General, on the other hand, has urged that under sub-section (1) of Section 164 no right has been con- ferred on a person aggrieved by thendings or sentence of a court mar- tial to make a representation to the con rming authority before the con-rmation of the said ndings or sen- tence. The submission of learned Additional Solicitor General is that while sub-section (1) of Section 164 refers to an order passed by a court martial, sub-section (2) of Section 164 deals with the ndings or sen- tence of a court martial and that the only right that has been conferred

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on a person aggrieved by the nd- ing or sentence of a court martial is that under sub-section (2) of Section 164 and the said right is available af- ter the nding and sentence has been con rmed by the con rming author- ity. We nd considerable force in the aforesaid submission of learned Ad- ditional Solicitor General.

Section 164 of the Act provides as under:

\(1) Any person subject to this Act who considers himself aggrieved by any order passed by any court martial may present a petition to the o cer or authority empowered to con rm any tinging or sentence of such court martial and the con rm- ing authority may take such steps as may be considered necessary to sat- isfy itself as to the correctness. legal- ity or propriety of the order passed or as to the regularity of any pro- ceeding to which the order relates.

(2) Any person subject to this Act who considers himself aggrieved by a nding or sentence of any court martial which has been con rmed, may present a petition to the Central Government, the Chief of the Army Sta or any prescribed o cer supe- rior in command to the one who con-rmed such nding or sentence and the Central Government, the Chief of the Army Sta or other o cer, as the case may be, may pass such or- ders thereon as it or he thinks t."

In sub-section (1) reference is made to orders passed by a court martial and enables a person ag- grieved by an order to present a peti- tion against the same. The said peti- tion has to be presented to the o cer

or the authority empowered to con-rm any nding or sentence of such court martial and the said author- ity may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or pro- priety of the order or as to the reg- ularity of any proceedings to which the order relates. Sub-section (2), on the other hand, makes speci c ref- erence to nding or sentence of a court martial. and confers a right on any person feeling aggrieved by a nding or sentence of any court martial which has been con rmed, to present a petition to the Central Government, Chief of the Army Sta or any prescribed o cer. The use of the expression \order" in sub-section

(1) and the expression \ nding or sentence" in sub-section (2) indicates that the scope of sub-section (1) and sub-section (2) is not the same and the expression \order" in sub-section

(1) cannot be construed to include a \ nding or sentence". In other words in so far as the nding and sentence of the court martial is con- cerned the only remedy that is avail- able to a person aggrieved by the same is under sub-section (2) and the said remedy can be invoked only af- ter the nding or sentence has been con rmed by the con rming author- ity and not before the con rmation of the same. Rule 147 of the Rules also lends support to this view. In the said Rule it is laid down that every person tried by a court mar- tial shall be entitled on demand, at any time after the con rmation of the nding and sentence, when such con rmation is required, and before the proceedings are destroyed, to ob-

246 S N Mukherjee v. Union Of India 1990

tain from the o cer or person hav- ing the custody of the proceeding a copy thereof including the proceed- ings upon revision, if any. This Rule envisages that the copies of proceed- ings of a court martial are to be supplied only after con rmation of the nding and sentence and that there is no right to obtain the copies of the proceedings till the nding and sentence have been con rmed. This means that the appellant can- not make a grievance about non- supply of the copies of the proceed- ings of the court martial and conse- quent denial of his right to make a representation to the con rming au- thority against the ndings and sen- tence of the court martial before the con rmation of the said nding and sentence. Though a person aggrieved by the nding or sentence of a court martial has no right to make a repre- sentation before the con ramtion of the same by the con rming author- ity, but in case such a representation is made by a person aggrieved by thending or sentence of a court mar- tial it is expected that the con rm- ing authority shall give due consid- eration to the same while con rming the nding and sentence of the court martial.

In the present case the represen- tation dated December 18, 1978 sub- mitted by the appellant to the con-rming authority was not considered by the con rming authority when it passed the order of con rmation dated May 11, 1979. According to the counter a davit led on behalf of Union of India this was due to the reason that the said representa-

tion had not been received by the con rming authority till the passing of the order of con rmation. It ap- pears that due to some communica- tion gap within the department the representation submitted by the ap- pellant did not reach the con rming authority till the passing of the or- der of con rmation. Since we have held that the appellant had no le- gal right to make a representation at that stage the non-consideration of the same by the con rming authority before the passing of the order of con-rmation would not vitiate the said order.

Shri Ganguli next contended that the rst and the second charge lev- elled against the appellant are identi- cal in nature and since the appellant was acquitted of the second charge by the court martial his conviction for the rst charge can not be sus- tained. It is no doubt true that the allegations contained in the rst and the second charge are practically the same. But as mentioned earlier, the second charge was by way of alter- native to the rst charge. The ap- pellant could be held guilty of either of these charges and he could not be held guilty of both the charges at the same time. Since the appel- lant had been found guilty of the rst charge he was acquitted of the sec- ond charge. There is, therefore, no in rmity in the court martial having found the appellant guilty of the rst charge while holding him not guilty of the second charge. Shri Gan- guli has also urged that the ndings recorded by the court martial on therst and third charges are perverse

247

inasmuch as there is no evidence to establish these charges. We nd no substance in this contention. Therst charge was that the appellant on or about December 1975, having received 60.61 meters woollen serge from M/s Ram Chandra & Broth- ers, Sadar Bazar, Jhansi for stitch- ing 19 coats and pants for Class IV civilian employees of his unit with intent to defraud got altered ord- nance pattern woollen pants issued to the said civilian employees instead of pants stitched out of the cloth received. To prove this charge the prosecution examined Ram Chander P.W. 1 and Triloki Nath P.W. 2 of M/s Ram Chandra & Brothers, Sadar Bazar, Jhansi who have de- posed that 60.61 meters of woollen serge cloth was delivered by them to the appellant in his o ce in Decem- ber, 1975. The evidence of these wit- nesses is corroborated by B.D. Joshi, Chowkidar, P.W. 3, who has deposed that in the last week of December, 1975, the appellant had told him in his o ce that cloth for their liveries had been received and they should give their measurements. As regards the alteration of 19 ordnance pat- tern woollen pants which were issued to the civilian employees instead of the pants stitched out of the cloth that was received, there is the evi- dence of N/sub. P. Vishwambharam P.W. 19 who has deposed that he was called by the appellant to his o ce in the last week of December, 1975 or the rst week of January, 1976 and that on reaching there he found ordnance pattern woolien pants ly- ing by the side of the room wall next to the appellant's table and that the

appellant had called Mohd. Sharif P.W. 15 to his o ce and had asked him to take out 19 woolien trousers out of the lot kept there in the of-ce. After Mohd. Sharif had se- lected 19 woollen trousers the ap- pellant told Mohd. Sharif to take away these pants for alteration and re tting. The judge advocate, in his summing up, before the court mar- tial, has referred to this evidence on the rst charge and the court mar- tial, in holding the appellant guilty of the rst charge, has acted upon it. It cannot, therefore, be said that there is no evidence to establish therst charge levelled against the ap- pellant and the ndings recorded by the court martial in respect of the said charge is based on no evidence or is perverse.

The third charge, is that the ap- pellant having come to know that Capt. Gian Chand Chhabra while o ciating OC of his unit, improperly submitted wrong Contingent Bill No. 341/Q dated September 25, 1975 for Rs.16,280 omitted to initiate action against Capt. Chhabra.

In his summing up before the court martial the judge advocate re- ferred to the CDA letter M/IV/191 dated November 20, 1975 (Exh. 'CC') raising cert in objection with regard to Contingent Bill No. 341/Q dated September 25, 1975 for Rs.16,280 and pointed out that the said letter was received in the unit on or about November 28, 1975 and bears the initials of the appel- lant with the aforesaid date and re- mark \Q Spk with details". This would show that the appellant had

248 S N Mukherjee v. Union Of India 1990

knowledge of the Contingent Bill on November 28, 1975. It is not the case of the appellant that he made any complaint against Captain Chhabra thereafter. It cannot, therefore, be said that the nding recorded by the court martial on the third charge is

based on no evidence and is perverse.

In the result we nd no merit in this appeal and the same is accord- ingly dismissed. But in the circum- stances there will be no order as to costs.

R.N.J. Appeal dismissed.

Chapter 17

Ex-Hav Ratan Singh v. Union of India 1991

EX-HAVILDAR RATAN SINGH mary Court Martial held without ju-
v. UNION OF INDIA AND ORS. risdiction.
PETITIONER: EX-HAVILDAR HEADNOTE: The appellant, a
RATAN SINGH     Havildar, was charge-sheeted on the
v.       ground that during an armed action
      against a group of militants when
RESPONDENT: UNION OF IN-
the militants opened re he ran away
DIA AND ORS.     in a cowardly manner and left his
DATE OF JUDGMENT19/11/1991
post without permission of his su-
BENCH: SHARMA, L.M. (J) perior. The respondent-authorities
BENCH: SHARMA, L.M. (J) proceeded on the ground that his of-
VERMA, JAGDISH SARAN (J) fence was covered by section 36 of the
AGRAWAL, S.C. (J)     Army Act, 1950 and accordingly sec-
CITATION: 1992 AIR 415 1991 tion 120 (1) of the Act was applica-
SCR Supl. (2) 370 1992 SCC Supl. ble. Consequently, he was tried by a
(1) 716 JT 1991 (4) 427 1991 SCALE summary court Martial and was con-
(2)1047       victed and reduced in rank and im-
      prisoned for one year. He led an
ACT: Army Act, 1950. Section
application under Article 226 before
3(x), 34(a)(h), 36 and 120. Summary the Delhi High Court which was dis-
Court MartialJurisdiction ofHavildar missed. In appeal to this Court it
engaged in armed action against mil- was contended on behalf of the appel-
itantsCharge of running away in a lant that having regard to the nature
cowardly manner and leaving the of the charge against him section 34
post without permission of superi- of the Army Act was attracted and
orNature of o ence and jurisdiction- in view of section 120(2) of the Act
Held o ence covered by Section 34 trial by summary Court was not per-
and not by section 36Trial by Sum-    
           
250 Ex-Hav Ratan Singh v. Union of India 1991

mitted. Allowing the apeal and set- ting aside the judgment of the High Court, this Court, HELD: 1. Un- der section 120 (2) of the Army Act, 1950 if an o ence is covered by sec- tion 34 and immediate action for the speci ed reasons is not warranted, the summary court martial shall not have jurisdiction to hold the trial. [372 D-F] 2. Section 36 covers a wide range of o ences and the scope of 371 section 34 is limited to a smaller area where the o ence is more seri- ous attracting more severe punish- ments. The operation in which the appellant was engaged was directed against the militants who were undis- putedly included in the expression enemy within section 3 (x). If the allegations are assumed to be true, than the appellant, on the militants opening re shamefully abandoned the place comitted to his charge and which he was under a duty to defend. Both clauses (a) and (h) of section 34 are clearly attracted. The appel- lant was therefore guilty of a more serious o ence under clauses (a) and

(h) of section 34 of the Act than under section 36. 1373 D-G] It is also not suggested on behalf of the respondents that there was in exis- tence any grave reason for immedi- ate action so as to justify trial by an o cer holding summary court mar- tial. Consequently the impugned, hed trial by Summary Court Mar- tial and the decision thereby must be held to be without jurisdiction and is quashed. The conviction and sentence passed against the appel- lant is set aside. [373 E-G] 3. The respondents-authorities can proceed to hold a fresh trial of the appellant

in accordance with law. [374.-C]

JUDGMENT: CRIMINAL AP- PELLATE JURISDICTION: Crimi- nal Appeal No. 710 of 1991. From the Judgment and Order dated 29.1. 1991 of the Delhi High Court in Cr. W.P. No. 9 of 1991. B.Pajha and Manoj Prasad for the Appel- lant. V.C.Mahajan, S.D.Sharma and S.N.Terde for the Respondents. The Judgment of the Court was deliv- ered by SHARMA, J. Special leave is granted. 2. The appellant, Havil- dar Ratan Singh was tried and con- victed by Summary Court martial. He was reduced in rank and sen- tenced to su er rigorous imprison- ment for one year. He led an appli- cation under Article 226 of the Con- stitution of India before the Delhi High Court, which was dismissed by the impugned judgment. 372 3. Al- though a number of questions were raised in the writ petition and the special leave petition, the ground urged by the learned counsel for the appellant before us is con ned to one point. It has been contended that having regard to the nature of the charge against the appellant, the pro- visions of section 34 of the Army Act, 1950 (herein-after referred to as the Act) are attracted, and in view of section 120 (2) of the Act, trial by summary not permitted. The learned counsel has placed the rel- evant provisions of the Act indicat- ing that the appellant would have been entitled to a qualitatively bet- ter right of defence before a court martial other than a summary court martial which was denied to him on a wrong assumption that the case

251

was covered by section 36, and not by section 34. The question which arises in this case, is whether the Summary Court Martial had juris- diction to try the appellant in the facts as alleged in the present case. 4. The charge sheet states that whenred upon by a group of terrorist- militants during an armed operation against them, the appellant quitted his place without orders from his su- perior o cer. Section 120 of the Act states that subject to the pro- visions of sub-section (2) of the sec- tion a summary court martial may try any o ence punishable under the Act. Sub-section (2) reads as follows :- (2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the o cer empowered to convene a district court martial or on active service a summary general court martial for the trial of the al- leged o ender, an o cer holding a summary court martial shall not try without such reference any o ence punishable under any of the sections 34, 37 and 69, or any o ence against the o cer holding the Court. The po- sition, thus, is that if the o ence is covered by section 34 and immedi- ate action for the speci ed reasons is not warranted, the summary court martial shall not have jurisdiction to hold the trial. 5. Section 34 states that any person subject to the Act, who commits any of the o ences enu- merated thereunder, shall on convic- tion by court martial, be liable to suf- fer death or such less punishment as prescribed. The o ences are detailed in 12 clauses and clauses (a) and (h) appear to be relevant in the present

context. They are quoted below:-

(a) shamefully abandons or delivers up any garrison, fortress, post, place or guard, committed to his charge, or which it is his duty to defend or uses any means to compel or in- duce any 373 commanding o cer or other person to commit any or the said acts; or (h) in time of action leaves his commanding o cer or his post,guard, picquet, patrol or party without being regularly, relived or without leave; or. 6. The evidence in the case, included in the paper book prepared by the appellant, in- dicates that the appellant while en- gaged in an armed action against a group of militants is alleged to have run away when the militants openedre and he, thus, in a cowardly man- ner left his post without permission of his superior o cer. The allega- tions included in the charge sheet on the basis of which the appellant was tried are also to the same e ect. The appellant is, therefore, right in his stand that if the prosecution case be assumed to be correct (which he de- nies) he was guilty of a more serious o ence under clauses (a) and (h) of section 34 of the Act than under sec- tion 36. In reply it is contended on behalf of the respondents that the case is covered by section 36, and, therefore, the Summary Court Mar- tial was fully authorised to try the appellant under section 120 (1). 7. There is no dispute that the appel- lant is governed by the provisions of the Act. It is also not suggested on behalf of the respondents that there was in existence any grave reason for immediate action so as to justify trial by an o cer holding summary court

252 Ex-Hav Ratan Singh v. Union of India 1991

martial. The Operation in which the appellant was engaged was directed against the militants who were undis- putedly included in the expression enemy within section 3(x). The im- pugned order is attempted to be jus- ti ed solely on the ground that sec- tion 36 covers the case. The argu- ment overlooks the position that it is not the scope of section 36 which can answer the question raised in the present case. The issue is whether the o ence is punishable under sec- tion 34 or not. Section 36 covers a wide range of o ences and the scope of section 34 is limited to a smaller area where the o ence is more seri- ous attracting more severe punish- ments. If the allegations are as- sumed to be true then the appellant, on the militants opening re, shame- fully abandoned the place committed to his charge and which he was un- der a duty to defend. Both clauses

(a) and (h) are, therefore, clearly at- tracted. The impugned trial by sum- mary court martial and the decision thereby must be held to be without jurisdiction and have to be quashed. 8. We do not nd any merit in the other points mentioned in the writ petition or in the special leave peti- tion. They are nally rejected. 9. During the course of the hearing we drew the pointed attention of the

learned counsel for the appellant that if he succeeded on the basis that the Summary Court Martial was with- out jurisdiction, he (the appellant) may have to be retired and awarded a more severe punishment, The learned counsel, however, decided to press the point even at the risk of a sec- ond trial of the. appellant. The learned counsel for the respondents stated that a fresh proceeding may now be barred by the law of Limita- tion, and in view of the fact that the appellant is guilty of a very serious charge, this Court should decline to exercise its power under Article 136. In reply the learned counsel for the appellant pointed out that the pe- riod of limitation for commencing a fresh proceeding against the appel- lant shall not expire before 05.02.92 and the apprehension expressed on behalf of the respondents that the appellant, even if guilty, may escape a trial is misconceived. We hold that the appellant is correct. Accordingly we set aside the impugned judgment of the High Court as also the con- viction and sentence passed against the appellant by the Summary Court Martial, but allow the respondents- authorities to proceed to hold a fresh trial of the appellant in accordance with law. The appeal is accordingly allowed. T.N.A. Appeal allowed.

Chapter 18

Bhuwneshwar Singh v. Union Of India 1993

Bhuwneshwar Singh vs Union Of India (Uoi) And Ors. on 1 September, 1993 Equivalent cita- tions: (1993) 2 CALLT 31 SC, 1993 CriLJ 3454, JT 1993 (5) SC 154 Au- thor: A S Anand Bench: J Verma, A Anand

JUDGMENT

A. S. Anand, J.

1.This appeal by special leave is directed against the judgment of the Division Bench of the Calcutta High Court in FMAT No. 3636/91 decided on 1st April, 1992.

2.Pursuant to his trial by the District Court Martial, on various charges, the appellant, who was a sepoy in the Indian Army, was dis- missed from service and also sen- tenced to su er rigorous imprison- ment for four months. Through a writ petition in the High Court of Calcutta, he challenged his dismissal, conviction and sentence. In the writ petition, apart from disputing the factual foundation of the charges and the unsatisfactory nature of evidence

to establish the same he also alleged violation of Rule 22 of the Army Rules; denial of his right to be repre- sented by a Defending O cer at the DCM; defect in the promulgation of the ndings and sentence, contrary to the mandate of Rule 71 of the Army Rules; the defect in the sign- ing of the warrant for commitment to civil prison, by the o ciating Com- mander instead of the Head of the Unit and violation of Rule 27 of the Army Rules read with Sections 101- 103 of the Army Act as regards his pre-trial detention beyond the per- missible period. Besides, the appel- lant also raised a plea that the period undergone by him in custody, before the trial by DCM was required to be set o against the sentence imposed on him by virtue of the provisions of Section 428 of the CrPC 1974. All the contentions raised by the appel- lant were considered by the learned single Judge who rejected the same, except the grievance concerning his pre-trial detention beyond the pe- riod prescribed under Sections 101-

254 Bhuwneshwar Singh v. Union Of India 1993

103 of the Army Act read with Rule

27 of the Army Rules. The learned single Judge found that the appel- lant had been detained beyond a pe- riod of three months, before the con- vening of the District Court Mar- tial, without obtaining approval of the Central Government which ren- dered his detention beyond the pe- riod of three months illegal. The learned single Judge accordingly di- rected the respondents to pay a sum of Rs. 1,000/- by way of compensa- tion to the appellant for his illegal detention of about one month, be- yond the permissible period of three months. The appellant unsuccess- fully pursued the matter by way of an appeal before the Division Bench of the High Court, which con rmed the ndings recorded by the learned single Judge and dismissed the ap- peal.

3. The appellant has appeared in person before us and made his submissions in Hindi, not being fa- miliar with the court language. We suggested to him that we could pro- vide him the assistance of an advo- cate through the Legal Aid Board or request one of the advocates to ap- pear for him, amicus curiae, with- out any nancial burden on him, but the appellant did not want the as- sistance of any counsel and insisted on arguing the matter himself. Not being conversant with the procedure of the Court or the law, the appel- lant took time to argue on matters, which were strictly speaking not rel- evant, and inspite of our advising him to allow us to appoint a counsel for him, in his own interest, he re-

mained adamant and therefore lot of judicial time, which could have been utilised for other work, was spent by us in trying to grasp his grievances, in which task, Mr. Reddy the learned Additional Solicitor General gave us his valuable assistance. Taking note of the increase in the number of cases in which the parties appear in person in this Court, we feel that a stage has now reached when this Court, on the administrative side, is required to consider the desirability of pro- viding some procedure to scrutinise their petitions and screen the par- ties, appearing in person, and only such of the parties who are certi ed by an authority/committee as \com- petent" to assist the Court in person, may, with the leave of the Court, be permitted to argue in person. Those of the litigants, who are not so cer- ti ed, or those to whom leave is not granted by the court, should be re- ferred to the Legal Aid and Advice board or the \Supreme Court Se- nior Advocates Free Legal Aid So- ciety", which is a voluntary body and o ers assistance, in appropri- ate cases, irrespective of the nancial position of the concerned litigant. Apart from providing proper assis- tance to the Court, the assistance by the lawyers would ultimately tend to be in the interest of the litigants themselves. It would also take care of preventing objectionable and unpar- liamentary language in the pleadings, which some of the \parties in per- son" permit themselves the liberty of indulging in, not being familiar with the court craft and the bounds of law within which the parties must for- mulate their pleadings in proper lan-

255

guage. Such a course would advance public interest while safeguarding in- dividual interest also. Our expe- rience shows that every advocate- senior, not so senior and junior- whenever requested by the Court to o er assistance has responded posi- tively and generously and therefore the interest of the \party in person" who would be represented by such a counsel would stand adequately pro- tected. We say no more on this as- pect at this stage.

4. The appellant invited us to go through the evidence recorded by the District Court. Martial and examine the discrepancies appearing therein. He disputed the correctness of the factual basis on which the proceed- ings had commenced, for recording of the summary of evidence and the trial by the District Court Martial. Undeterred by the ndings recorded by the District Court Martial, which were con rmed by the con rming au- thority and against which the depart- mental appeal had also failed, as well as the judgments of the single Judge, and the Division Bench of the High Court, the appellant insisted that we should reappraise the evidence and accept his version regarding the in- cident and set aside his conviction and sentence. We politely but rmly declined the invitation to reappraise the evidence for testing the validity of the ndings, as indeed it is not a case, nor was it the contention of the appellant in the High Court or before us, that the ndings of the District Court Martial -were based on no ev- idence at all. Both the single Judge and the Division Bench of the High

Court found that the proceedings be- fore the District Court Martial had been conducted in accordance with law and that there was no defect in the appraisal of evidence by the Dis- trict Court Martial. We agree. This Court cannot, in an appeal under Ar- ticle 136 of the Constitution of India, be requested to reappraise the evi- dence and examine whether the inci- dent took place in the manner sug- gested by the appellant or the prose- cution.

5.Both the learned single Judge and the Division Bench of the High Court have considered the grievance of the appellant, based on the al- leged non-compliance with Rule 22 of the Army Rules which requires hearing of the charge in the pres- ence of the accused and found that Rule 22 had been properly complied with. We agree. The charges were heard on 29.3.1989 by Lt. Col. R.S. Sidhu, the then Commanding O - cer, in the presence of the appellant, who was a orded ample opportunity to cross-examine the prosecution wit- nesses. It was only after consider- ing the evidence so recorded, that the Commanding O cer ordered the recording of summary of evidence. In the counter a davit led by the re- spondents in the High Court, it was clearly brought out that the require- ments of Rule 22 had been complied with. The appellant was unable to point out any in rmity in the nd- ings recorded by the learned single Judge or the Division Bench of the High Court on this aspect of the case.

6.The grievance of the appellant that he was denied an opportunity to

256 Bhuwneshwar Singh v. Union Of India 1993

be represented by a Defending O - cer is wholly untenable. The High Court also found it so. A perusal of the record reveals that though the appellant had requested that one of the three o cers named by him be nominated as defence counsel, on be- ing informed that none of those three o cers were available at the station, and having been supplied with a list of the o cers available at the sta- tion, he was represented by Major S.K. Sharma as his defence counsel. Not only did the appellant agree to the appointment of Major Sharma but the said Defending O cer cross- examined the witnesses on behalf of the appellant and also led written submissions at the close of the ad- dress. The appellant, during the pro- ceedings in the District Court Mar- tial did not raise any objection to be defended by Major S.K. Sharma. There has, thus, been no denial of providing proper defence assistance to the appellant during the Court Martial proceedings.

7. Both the leaned single Judge and the Division Bench also did notnd any merit in the submission of the appellant that the warrant for his committal to civil prison had not been signed by the competent authority as envisaged by Section 169(2) of the Army Act. The ap- pellant submitted before us also that since, the warrant for committal of a person sentenced by court martial, to a civil prison under Section 169(2) of the Army Act read with Rule 166 of the Army Rules, is required to be signed and forwarded either by the Commanding O cer or such other

o cer as may be prescribed, but in his case had been signed by respon- dent No. 4, in spite of the presence of the Commanding O cer in the unit, it was illegal. We cannot agree. Un- der Section 169(2) of the Army Act read with Army Rule 166, a war- rant for the committal of a person sentenced by court martial to a civil prison is required to be forwarded and signed either by the Command- ing O cer or such other O cer as may be prescribed. Respondent No. 4, at the relevant time was perform- ing the duties as an o ciating Com- manding O cer of the Unit to which the appellant was attached, as an o ciating incumbent, and therefore, Respondent No. 4 was fully compe- tent to sign the warrant.

8.The grievance that there has been no promulgation of the ndings and sentence recorded by the DCM, as required by Rule 71 of the Army Rules is also without any merit. A perusal of the record, which was pro- duced before the High Court, es- tablishes that the sentence was in fact promulgated together with its con rmation on 18.10.1989 as evi- denced by letter of 3/4 Gorkha Ri es No. 425287-1K/TCM/BS/A dated 18.10.1989, addressed to the Head Quarters Calcutta, Sub-Area with a copy for record to the Defence Secu- rity Corps and 376 DSC Planoton. There has, thus, been no defeat in the promulgation of the ndings and the sentence.

9.We, however, nd good and genuine basis for the grievance of the appellant that he had been detained beyond the permissible period, as

257

prescribed under Sections 101-103 of the Army Act read with Rule 27 of the Army Rules, before his trial by the DCM. This grievance had found acceptance by the High Court also and-the respondents have not ques- tioned the nding of the High Court in that behalf in this Court either.

10. Section 101 of the Army Act provides that any person subject to the Army Act charged with an of- fence may be taken into military cus- tody, under orders of the superior of-cer. The method of arresting a per- son subject to Army Act, however, is informal. Section 102 of the Act provides that a Commanding O - cer shall ensure that such a person is not detained for more than 48 hours after the committal of such person into custody, without the charge be- ing investigated, unless investigation within that period appears to the Commanding O cer to be imprac- ticable having regard to the public service. In case the period of de- tention is to exceed 48 hours, Sec- tion 102(2) of the Act enjoins that the reasons thereof shall be reported by the Commanding O cer to the General or other o cer, competent to convene a general or district Court Martial for the trial of the person charged. In calculating the period of 48 hours, Sundays and other pub- lic holidays, are required to be ex- cluded. Section 103 of the Act then deals with the intervals between com- mittal and the court martial and pro- vides that where a person remains in custody for a period longer than 8 days, without the Court Martial for his trial being ordered to assem-

ble, a special report giving reasons for the delay shall be made by the Commanding Operator and a similar report shall be forwarded at the in- terval of every 8 days, till the Court Martial is convened or the person is released from custody. The form in which the report is required to be made, every 8 days of the continued detention of such a person, is pre- scribed by Army Rules 27. Sub Rule 3 of Rule 27 lays down that the de- tention in military custody beyond 2 months of a person in whose case a court martial has been ordered to as- semble (before the commencement of the trial), would require sanction of the Army Chief or any o cer autho- rised in that behalf with the approval of the Central Government and that the period of detention in such a case may extend to a total period of three months but not beyond. Rule 27 (3)(ii) of the Rules then mandates that any detention beyond a period of three months, would required the approval of the Central Government. The basic object of Sections 101-103 of the Act read with Rule 27 of the Rules appears to be to dispose of court martial cases expeditiously and to minimise the period of pre-trial detention. The object is both salu- tary and laudable. It is not dis- puted that in the instant case, the appellant was taken into custody on 28th March 1989 and the District Court Martial was convened on 25th July 1989. The appellant, there- fore, remained in custody for more than three months prior to his trial by the District Court Martial. No sanction or approval of the Central Government for the detention of the

258 Bhuwneshwar Singh v. Union Of India 1993

appellant beyond a period of three months was obtained and, therefore, the safeguards provided for in Sec- tions 101-103 of the Army Act read with Rule 27 of the Rules were re- spected in their breach, without any explanation being furnished for non- compliance with the requirements of those provisions. The learned single Judge noticed this and observed:

Therefore, the petitioner was kept in custody for more than 3 months. Any detention beyond a period of 3 months requires the ap- proval of the Central Government. There is nothing to show that any approval of the Central Government has been obtained. Therefore, I am of the view that the petitioner has been detained from 29th June 1989 to 25th July 1989 illegally without any approval of the Central Govern- ment. There is no explanation as to why no such approval of the Central Government was taken.

(Emphasis ours)

11. The Single Judge, however, held that the \illegal detention" of the appellant did not vitiate his \de- tention" and came to the conclusion that the appellant deserved to be awarded compensation for his illegal detention and awarded Rs. 1,000/- as compensation to him. The Divi- sion Bench concurred with the abovendings. In the established facts and circumstances of the case, we agree with the ndings recorded by the High Court that the pre-trial deten- tion of the appellant for a period be- yond three months without the ap- proval of the Central Government as required by Rule 27(3)(ii) of the

Rules was illegal. Would this illegal vitiate the trial and if not, is the com- pensation of Rs. 1,000/-awarded by the High Court proper and reason- able, is the question which now needs our attention?

12.The continued pre-trial de- tention of the appellant for a period beyond three months was on account of the fact that there was delay in the convening of the District Court Martial. No mala de have been al- leged, let alone established, for de- taining the appellant beyond a pe- riod of three months, without obtain- ing the approval of the Central Gov- ernment. The authorities appear to have been negligent and have shown scant respect for the provisions of the Army Act and the Rules. That is objectionable. Those who feel called upon to deprive other persons of their liberty in the discharge of their duty, must strictly and scrupu- lously observe the norms and rules of law. The object of Sections 101-103 of the Army Act read with Rule 27 of the Army Rules is that a person charged under the Act should not be unnecessarily deprived of his freedom on the ground that he is accused of an o ence triable by the Court Mar- tial. The protection granted to per- sons subject to the Act by the above provision would become meaningless if one who is supposed to be the pro- tector of the person concerned acts callously and unconcerned with the rights available to such a person.

13.Keeping in view the limited nature of judicial review in matters arising out of Court Martial proceed- ings, it is not only desirable but nec-

259

essary that the authorities under the Army Act strictly follow the require- ments of the Act and the Rules. The authorities cannot be permitted to deal with the liberty of a person sub- ject to the Army Act, in a casual manner and cannot be allowed by their commission or omission, to frus- trate the object of speedy trial as en- visaged by the Act, of the persons to be tried by a Court Martial In our opinion, however, keeping in view the object of the provisions of Sec- tion 101-103 of the Act and Rule 27 of the Rules, the illegal detention of the person charged under the Army Act, for a period beyond the pre- scribed one, before commencement of his trial by the Court Martial, would neither vitiate the Constitu- tion of the District Court Martial nor e ect the trial held by the District Court Martial under the provisions of the Army Act, much less render the conviction and sentence recorded thereat bad. The failure to pre- vent unnecessary and prolonged cus- tody prior to the trial by the Court Martial would not, in any way, ef- fect the Court Martial would not, in any way e ect the Court Martial proceedings or render negatory thendings of the District Court Mar- tial or the General Court Martial, as the case may be. Since the proceed- ings of the District Court Martial were held strictly in accordance with the provisions of the Army Act and the Rules framed thereunder and do not su er from any in rmity whatso- ever, the pre-trial illegal detention of the appellant for a period of about one month or so would not vitiate the nding of guilt and the sentence

recorded by the District Court Mar- tial, which was con rmed by the con-rming authority and against which departmental appeal was dismissed by the appellate, authority and the challenge in the High Court failed. We, therefore, hold that for the fail- ure of the authorities to obtain ap- proval of the Central Government for detaining the appellant in custody, prior to his trial by DCM, for a pe- riod beyond 3 months, would not vi- tiate his trial by the DCM or oth- erwise e ect his conviction and sen- tence. The pre-trial illegal detention does not e ect the jurisdiction of the DCM, validly convened, and such an illegal detention would not amount to a jurisdictional defeat vitiating the trial or the ndings.

14.We, however nd that the award of compensation of Rs. 1,000/- by the High Court for the established illegal detention of the appellant, for about one month or so, is grossly inadequate and hope- lessly unimaginative. After having recorded the ndings that the appel- lant had been illegally detained from 29th June 1989 to 25th July 1989, the High Court was expected to take

amore realistic view of the depriva- tion of the personal liberty of the ap- pellant, rather than indulge only in a lip service, by awarding him a poul- try sum of Rs. 1,000/- as compensa- tion.

15.This Court in Nilabati Be- hera v. State or Orissa and Ors. (1) observed:

This Court and the High Courts, being the protectors of the civil lib- erties of the citizen, have not only

260 Bhuwneshwar Singh v. Union Of India 1993

the power and jurisdiction but also an obligation to grant relief in exer- cise of its jurisdiction under Article 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are es- tablished to have been agrantly in- fringed by calling upon the State to repair the damage done by its o - cers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings....

It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into ac- count not only the interest of the ap- plicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or o cials do not act unlaw- fully and do perform their public du- ties properly particularly where the fundamental right of a citizen under Article 21 is concerned.

16. The Court then opined:

The public law proceedings serve a di erent purpose than the private law proceedings. The relief of mon- etary compensation, as exemplary damages, in proceedings under Ar- ticle 32 by this Court or under Ar- ticle 226 by the High Courts for es- tablished infringement of the indefea- sible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contraven- tion of the guaranteed basic and in-

defeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to as- sure the citizen that they live under a legal system which aims to pro- tect their interests and preserve their rights. Therefore, when the court moulds the relief by granting 'com- peasation' in proceedings under Ar- ticle 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and xing the liabil- ity for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensa- tion in such case is to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of pro- viding relief by an order of making 'monetary amends' under the pub- lic law for the wrong done due to breach of public duty, of not protect- ing the fundamental rights of the cit- izen. The compensation is in the na- ture of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty.

17. This Court as also the High Courts under Article 226 have the power of judicial review, in respect of proceedings of court martial as well as the proceedings subsequent thereto, even though to a limited ex- tent, and can in appropriate cases grant relief, where there has been de- nial of the fundamental rights of the citizen or if the proceedings before the Court Martial su er from a ju- risdictional defect or any other sub-

261

stantive error of law apparent on the face of the record See S.N. Mukher- jee v. Union of India - Constitution Bench.

Having found that the appellant was in illegal detention from 29th June 1989 to 25th July 1989, in our opinion it would be appropriate to award him adequate compensation for violation of his fundamental right of personal liberty as guaranteed by Article 21 of the Constitution and we accordingly direct that the appel- lant shall be entitled to a sum of Rs. 30,000/- as compensation for his ille- gal pre-trial detention and we make an order accordingly.

18. In so far as the last submis- sion made by the appellant i.e. with regard to the set o of the period of pre-trial detention against the pe- riod of sentence is concerned, su ce it to say that it is now settled by this Court in Ajmer Singh and Ors. v. Union of India and Ors. (2) that in the case of person tried by court

mertial, there is neither any in- vestigation nor inquiry, nor trial un- der the CrPC and as such the pro- visions of set o contained in Sec- tion 428 of the Cr.P.C. are not at- tracted to the cases of persons con- victed and sentenced by court mar- tial to undergo imprisonment. The High Court was therefore, perfectly justi ed in rejecting the prayer of the appellant and the view of the High Court is unexceptionable.

19. Since, the period of pre-trial detention is not set o against the sentence of imprisonment under Sec- tion 428 Cr. PC, the Parliament with

a view to avoid hardship to the per- sons convicted by Court Martial, has in 1992 incorporated in the Army Act itself a provision similar in terms as Section 428 Cr. PC. Section 169A of the Army Act, as introduced by the Army Amendment Act, 1992, pro- vides:

169A. Period of detention un- dergone by the accused to be set- o against the sentence of imprison- ment. - When a person or o cer subject to this Act is sentenced by a court-martial to a term of imprison- ment, not being an imprisonment in default of payment of ne, the period spent by him in civil or military cus- tody during investigation, inquiry or trial of the same case and before the date of order of such sentence, shall be set o against the term of impris- onment imposed upon him and the liability of such person or o cer to undergo imprisonment on such order of sentence, shall be restricted to the remainder, if any, of the term of im- prisonment imposed upon him.

Section 169A of the Army Act would, therefore, after 1992 mitigate the hardship of the persons sentenced by the Court Martial under the Army Act. However, the bene t of this pro- vision is not available to the appel- lant, because he was sentenced to suf- fer the imprisonment long before this amendment came into force in 1992.

20. Thus, except for the en- hancement of compensation from Rs. 1,000/- to Rs. 30,000/- payable by the respondent to the appellant for his pre-trial illegal custody. We do not nd any in rmity in any othernding recorded by the High Court

262 Bhuwneshwar Singh v. Union Of India 1993

and therefore in all other respects, the appeal Sails and is dismissed.

21. The amount of compensation shall be paid by the respondents to the appellant within Three months

from the date of this order provided, however, the appellant shall deposit his kit etc. with the competent au- thority, in case he is still retaining the same, before receiving the com- pensation.

Chapter 19

P Chandramouli v. Union Of India 1994

P. CHANDRAMOULY v. UNION OF INDIA AND ANR.

CASE NO.: Appeal (crl.) 623-24 of 1987

PETITIONER: P. CHAN- DRAMOULY

RESPONDENT: UNION OF IN- DIA AND ANR.

DATE OF JUDGMENT: 22/07/1994

BENCH: M.M. PUNCHHI & KJ. REDDY

JUDGMENT:

WITH

Criminal Appeal Nos. 620-22 of 1987 and Criminal Appeal No. 625 of 1987.

1994 SUPPL. (2) SCR 43

The following Order of the Court was delivered ;

Criminal Appeal Nos. 620 to 622 of 1987 on behalf of three members of the General Reserve Engineers Force, Criminal Appeals Nos. 623-624 by one more such member and Crim-

inal Appeal No. 625 of 1987 by the Union of India are against the common judgment and order dated 31.3.1987 passed by a Division Bench Of the Gauhati High Court in Writ Appeals Nos. 1,2 and 3 of 1980.

The four appellants, members of the General Reserve Engineers Force (hereinafter referred to as the Force) were accused of having committed of- fences punishable under Section 63 of the Army Act under four counts, as also under Section 39(a) and 41 of the said Act under one count each. For the six charges framed they were tried by a Court Martial and con- victed under all the six counts and awarded sentences of imprisonment, They invoked the jurisdiction of the Central Government under Sections 164 and 165 of the Army Act, 1950 but with no success. They led two separate writ petitions before the Gauhati High Court challenging their convictions and sentences. The writ petitions to the o cers were ac- cepted partially to the extent that of-

264 P Chandramouli v. Union Of India 1994

fence under Section 63 in relation to one count was quashed. The learned Single Judge also took the view that orders of the Competent Authority under Sections 164 and 165 of the Army Act required a speaking or- der. The learned Single Judge in re- lation to the other charges suggested to the Competent Authority whether it would be worthwhile to keep oper- ating the sentence s imposed under other charges due to the quashing of one of the charges under Section 63 of the Act. Against the partial ac- ceptance of their writ petitions, the four o cers led their respective let- ters patent appeals before the Divi- sion Bench of that Court as did the Union of India, aggrieved as it was against the quashing of charge un- der one count under Section 63 of the Act. The Division Bench on reappraisal of the entire matter came to the conclusion that all the six charges against the o cers stood es- tablished and that there was no oc- casion for the learned Single Judge to have quashed one charge. While doing so it agreed with the learned Single Judge that the Authority exer- cising jurisdiction under Sections 164 and 165 of the Army Act was re- quired to pass a speaking order. All the same, the convictions and sen- tences were maintained despite the requirement of the Authority passing a speaking order. Recommendation, however, as made to the Union of In- dia that it was a case where sentences of the o cers deserve commuting. We are told that the Union of India accepting the suggestion committed accordingly the sentences of impris- onment of the four members and they

are at large.

It is the conceded case of the o cer-appellants that the provisions of the Army Act, subject to some ex- ceptions are applicable to the Force with e ect from 23.9.1960. The of- fences herein were committed in the year 1971. The plea of the appel- lants is that the Court Martial set up under a warrant of the Chief of the Army Sta , authorising the Chief Engineer to conduct it, was not legally constituted under the Army Act since there was no parallel o cer of an Army rank posted in the Force. It is stated that this objection to ju- risdiction was taken before the Court Martial but not ignored. The appel- lants learned counsel was unable to support his contention. We do notnd any material in support thereof because the proceedings of the Court Martial have not been placed before us as part of the record. The judg- ment under appeal is also not re-ective of the question of jurisdic- tion having been raised in such man- ner. Even otherwise it is not avail- able to the appellants because of the settled position in law that the Gen- eral Reserve Engineers Force is part and parcel of the Armed Forces to which the Army Act is applicable. In this connection R. Viswan & Ors. v. The Union of India & Ors, [1983] 3 S.C. R. 60 and Devi Prasad Mishra v: Union of India and Ors., S L P. (Crl.) No. 1020 of 1978 may with advan- tage be seen. Such argument is not open to the appellants. The ancil- lary question raised that those judg- ments applied prospective and did not cover the state of law as exist-

265

ing prior thereto and the instant be- ing a case which arose priority is to be noted and rejected. That Court, in those cases, not only declared the state of law as existing but inter- preted it to have always existed from the date of the noti cation applying the Army Act to the Force.

Undeniably, when the Army Act is applicable, the Chief of the Army Sta is the person, besides the Cen- tral Government, to issue a warrant for convening a Court Martial. He can, therefore, authorise not only anyone from the personnel directly governed under the Army Act but also from the personnel to which the Army Act stands extended. Here the Chief Engineer could be issued a war- rant for the purpose being on the roll of the Force to which the Army Act had been extended. The argu- ment thus being of no substance is rejected.

Lastly, it has been contended on behalf of the appellants that while these appeals were pending in this Court they have been served Show Cause Notices under the Central Civil Services (Classi cation, Con- trol and Appeal) Rules so as to take disciplinary action against them on the basis of their convictions. It has been urged that o ence of violation of good Order and discipline punish- able under Section 63 of the Army Act had come to be committed be- cause the appellants genuinely be- lieved that they were not members of the Armed Forces and thus not bound by the strict standards of good order and discipline as expected from the Armed Forces. Now while pro-

ceeding with this judgment our at- tention has been drawn to the lim- ited leave granted in these matters, only on two questions. One of the questions is to examine the e ect of substitution of the word discipline in place of the expression military disci- pline in Section 63 of the Act by or- der of the Central Government dated September 23, 1960 issued in exercise of the powers conferred under Sec- tion 4(1) of the Act, as applicable to the members belonging the General Reserve Engineers Force and ques- tions incidental thereto. It was also made clear that such grant of leave would not entitle the parties to re- open the questions decided by the Constitution Bench in R. Viswan & Ors. v. Union of India & Ors., yet the learned counsel for the ap- pellants went on raising the question of applicability of the Army Act to the members of the General Reserve Engineers Force and transgressed the limits of special leave. Keeping that apart. Section 63 of the Act never- theless is applicable to the members of the Force and they can be tried for any act or omission which, though not speci ed in the Act, is prejudi- cial to good order and discipline and can be convicted by a Court Martial and be held liable to su er imprison- ment for a term which may extend to seven years or less, As we view it, the dropping of the word military from the text of Section 63 rather enlarges its scops in a sense for it obligates maintenance of discipline in a wider sense. It may be true, as has been contended by the learned counsel for the appellants, that the discipline en- visaged for the Engineers Force can-

266 P Chandramouli v. Union Of India 1994

not be of such strict standards as is regimental or military discipline but it is, however, forgotten when so can- vassing that even ordinary discipline, which is expected to be observed by the members of the Engineers Force, when violated, would attract the ju- risdiction of the Court Martial which is empowered to impose sentences of imprisonment. Such imprisonment is extendable up to seven years and can be either rigorous or simple as is plain from the language of Sec- tion 71(c) of the Army Act. Other punishments enumerated in clauses (d), (e), (f), (g) and (h) of Sec- tion 71, though forming part of the Army Act, are excepted from appli- cation to the Engineers Force. Those are cashiering, dismissal from ser- vice, reduction in rank, forfeiture of seniority of rank or forfeiture of ser- vice. These cannot be imposes by the Court Martial when trying of- fences against the members of the Engineers Force. Since these punish- ments do hot fall within the domain of the Court Martial insofar as mem- bers of the Engineers Force are con- cerned, then obviously the Central Civil Services (C.CA) Rules come in to ll the vacuum. The members of the Engineers Force are not due for a better treatment than ordinary Government servants who have to su er disciplinary action under the said Rules on the basis of criminal convictions. Therefore, we are of the considered view that the expres- sion military discipline when substi- tuted as discipline, for the purpose of the Engineers Force serves the pur- pose above-mentioned. It goes with- out saying that the behaviour of the

members of the Engineers Force sub- jected to good order and discipline cannot work to its prejudice. Anyone violating that good order and disci- pline would thus have to su er. We hold accordingly.

The second question on which the limited leave was granted was to dis- cover the duty of the Con rming Au- thority to pass a reasoned order un- der Sections 150, 154 and 164 of the Act. The understanding of Sections 154, 164 of the Act would govern the role assigned under Section 165 of the Act. These provisions do not speci cally require any speaking or- der to be passed. The learned Single Judge as also the Division Bench of the High Court opined that passing of a speaking order would be: nec- essary. The High Court has taken this view against the Constitution Bench of this Court in Som Datta v. Union of India & Ors., [1969] 2 S.C.R. 177 wherein it has been au- thoritatively held that there is no express obligation imposed by Sec- tion 164 or Section 165 of the Army Act on the Conforming Authority or upon the Central Government to give reasons in support of its deci- sion to con rm the proceedings of the Court Martial. Before the Constitu- tion Bench, as here, no provision of the Act or any Rule made thereun- der has been shown from which im- plication can be drawn that such a duty was cast upon the Government and the Con rming Authority. This Bench is bound by the view express by the Constitution Bench. Addi- tionally, we do not see that absence of a speaking order, in these circum-

267

stances, b any way thwarts judicial review should the court undertake the exercise since the parent order is always available to build argument? upon. This part of the view of the High Court relating to the passing of the speaking order, we cannot ap- prove and thus we set it aside retriev- ing it from the judgment under ap- peal.

Before we part With the judg- ment, we need to observe that much of our time was employed by learned

Counsel without bringing to our no- tice the limitations within which the debate could go on terms of the spe- cial leave. Therefore, We are con- strained to award costs. Criminal Appeals Nos. 620 to 624 are, there- fore, dismissed with costs which we quantify at Rs. 5,000.

Criminal Appeal No. 625 of 1987led on behalf of the Union. of India is allowed in the above terms. In this appeal there shall be no costs.

268 P Chandramouli v. Union Of India 1994
BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J)
JEEVAN REDDY, B.P. (J) CITATION:
1996 AIR 845 1995 SCC Supl. (3)
426 1995 SCALE (4)711 ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
Azad 1995
Union Of India & Ors v. R.K.L.D. Azad on 9 August, 1995 Equivalent citations: 1996 AIR 845, 1995 SCC Supl. (3) 426 Author: M Mukherjee Bench: M M.K.
PETITIONER:
UNION OF INDIA & ORS. v.
RESPONDENT:
R.K.L.D. AZAD
Chapter 20
Union Of

India v. R.K.L.D.

M.K. MUKHERJEE, J.

Special leave granted.

The two short questions that ate required to be answered in these ap- peals are:-

(i) whether a person who is sub- ject to the Army Act, 1950 (`Act' for short) can be dismissed from ser- vice for committing an o ence un- der the Act even after he had retired

on attaining the age of superannua- DATE OF JUDGMENT09/08/1995tion? and (ii) whether a Junior Com-

missioned O cer of the Indian Army who has to his credit the minimum period of qualifying service required to earn a pension or gratuity is eli- gible for the same in case he is dis- missed from service under the provi- sions of the Act? The question arise in the wake of the following undis- puted facts. While employed as a Ju- nior Commissioned O cer in the In- dian Army the respondent herein was placed under closed arrest on August 7, 1990 pending his trial by a General Court Martial for an o ence under Section 64 (e) of the Act. Since the

270 Union Of India v. R.K.L.D. Azad 1995

respondent was due to retire on Au- gust 31, 1990 on attaining the age of superannuation the Army authorities passed an order on August 23, 1990, extending his subjection to the Act till completion of the trial. In the trial that commenced from Novem- ber 1, 1990 and ended on November 26, 1990, the respondent was con- victed and the sentences imposed for the conviction were rigorous impris- onment for one year and dismissal from service. After due con rmation in accordance with Section 154 of the Act the order of conviction and sen- tence was promulgated on January 15, 1991.

Assailing the above order of the General Court Martial the respon- dent led a writ petition in the Andhra Pradesh High Court which was heard by a learned Single Judge. The learned Judge allowed the writ petition in part by setting aside the order of dismissal of the respon- dent, but upholding his conviction and sentence of rigorous imprison- ment for one year. The reason which weighed with the learned Judge in setting aside the dismissal was that consequent his retirement on August 31, 1990 the question of his dis- missal from service could not have arisen. According to the learned Judge the order dated August 23, 1990, whereby the respondent was to be subject to the Act till conclusion of the trial, only entitled the General Court Martial to proceed with the trial which, otherwise, would have been impermissible and illegal from the date of the respondent's retire- ment. Such an order under Section

123 of the Act, the learned Judge ob- served, could not give any statutory imprimatur to an order of dismissal passed against an o cer of the Army after he had ceased to hold his post consequent upon his retirement.

As success of either of the con- testing parties in the writ petition was only partial, both preferred Let- ters Patent Appeals in the High Court but they were dismissed and the order of the learned Single Judge was con rmed. Aggrieved thereby these appeals have been led at the instance of the Army authorities.

Relying upon the provisions of sub-section (1) and (2) of Section 123 of the Act which read as under: \123 Liability of o ender who ceases to be subject to Act-

(1)Where an o ence under this Act had been committed by any per- son while subject to this Act, and he has ceased to be so subject, he may be taken into and kept in military custody, and tried and punished for such o ence as if he continued to be so subject.

(2)No such persons shall be tried for an o ence, unless his trial com- mences within a period of three years after he had ceased to be subject to this Act; and in computing such pe- riod, the time duting which such per- son has avoided arrest by absconding or concealing himself or where the institution of the proceeding in re- spect of the o ence has been stayed by an injunction or order, the pe- riod of the continuance of the injunc- tion or order, the day on which it was issued or made, and the day on

271

which it was withdrawn, shall be ex- cluded." it was contended on behalf of the appellants that a plain reading thereof made it abundantly clear that notwithstanding the fact that the re- spondent had ceased to be subject to the Act consequent upon his retire- ment, he could be tried for the of- fence under Section 64(e) of the Act, as it was committed before his retire- ment, and punished for the same in view of the deemed extension of his subjection to the Act under Section 123 of the Act. It was next contended that both the trial, and the pun- ishment of dismissal that followed, were legal and valid as the former commenced within the period stipu- lated under sub-section (2) of Section 123 and the latter could be combined with the sentence of imprisonment imposed upon the respondent in view of Section 73 of the Act. In sup- port of their contention the appel- lant relied upon Major (Retd.) Hari Chand Pahwa v. Union of India & Anr. 1995 Supp (1) SCC 221. While repudiating the above contention of the appellants by adopting the rea- soning of the learned single Judge in this regard, as con rmed by the Di- vision Bench in the Letters Patent Appeal, the learned counsel for the respondent submitted that in case it was held that the order of dismissal of the respondent was legally sustain- able still he could not be deprived of his pension and gratuity in the ab- sence of any express embargo to that e ect in the dismissal order.

In the case of Maj. (Retd.) Hari Chand Pahwa (supra) this Court while repelling the contention raised

on behalf of the appellant therein that he could only be awarded a punishment of imprisonment after conviction but not also of being cashiered from the Army (which was imposed upon the appellant therein) because he had earlier retired this Court observed:

Though the appellant had retired from the Army service but by op- eration of sub-section (1) of Section 123 of the Army Act, he could be tried by the GCM in respect of the o ences committed by him during the period of his actual service and could be committed and punished in the same manner who was subject to the Army Act could be tried and punished. The said provision clearly states that a retired person can be tried and punished for such o ences as if he continued to be so subject. We, therefore, do not agree with therst contention raised by the learned counsel for the appellant and reject the same. The GCM could award any of the punishments which could be awarded by the said court under law including to be cashiered from the Army. The provisions of sec- tion 123 make no di erence between an o cer who is still in service and who was retired from service pro- vided the GCM proceedings are ini- tiated within the period of limita- tion provided under sub-section (2) of Section 123 of the Army Act."

As the facts of the case presented before us are on all fours with those in Hari Chand Pahwa (Supra) and as we respectfully agree with the above quoted observations, the rst ques- tion must be answered in the a r-

272 Union Of India v. R.K.L.D. Azad 1995

mative. Coming now to the second question we nd that the grant of pension and gratuity to Junior Com- missioned O cers, other Ranks and Non-Combatants (Enrolled) is regu- lated by Chapter III of the Pension Regulations for the Army, 1961 (Part I). Regulation 113 which comes un- der Section I of the above Chapter reads, after its amendment in 1967, as follows:

\113 (a) An individual who is dis- missed under the provisions of the Army Act, is ineligible for pension or gratuity in respect of all previous ser- vice.

In exceptional cases, however, hemay, at the discretion of the Pres- ident be granted service pension or gratuity at a rate not exceeding that for which he would have otherwise quali ed had he been discharged on the same date.

(b) An individual who is dis- charged under the provisions of Army Act and the rules made there- under remains eligible for pension or

gratuity under these Regulations."

In view of the plain language of the above regulation the respon- dent cannot lay anylegal or legiti- mate claim for pension and gratu- ity on the basis of his previous ser- vice as, admittedly, he stands dis- missed in accordance with Section 73 read with Section 71 of the Act. The second question must, therefore, be answered in the negative. On the conclusions as above these appeals are allowed. The impugned judg- ments of the High Court so far as they held that the dismissal of the respondent was legally unsustainable are hereby set aside and the writ pe- tition led by the respondent is dis- missed. There will be no order as to costs.

Before we part with this record we make it clear that this judgment of ours will not stand in the way of the respondent to make a represen- tation seeking exercise of the discre- tionary powers of the President un- der Regulation 113 to grant pension or gratuity.

Chapter 21

Union Of India v. Major General Madan Lal Yadav 1996

Union Of India & Ors v. Ma- jor General Madan Lal Yadav ... on 22 March, 1996 Equivalent citations: 1996 AIR 1340, 1996 SCC (4) 127 Author: K Ramaswamy Bench: Ra- maswamy, K.

PETITIONER:

UNION OF INDIA & ORS.

v. RESPONDENT:

MAJOR GENERAL MADAN LAL YADAV [RETD.]

DATE OF JUDGMENT: 22/03/1996

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

AHMAD SAGHIR S. (J)

G.B. PATTANAIK (J)

CITATION:

1996 AIR 1340 1996 SCC (4) 127

JT 1996 (3) 465 1996 SCALE (3)72

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

K. Ramaswamy, J.

This appeal on reference to this Bench raises an interesting question of law. The respondent while work- ing as Major General, Army Ord- nance Corps., Southern Command, Pune between December 1, 1982 and July 7, 1985 was in-charge of pur- chase. The Controller General of De- fence Accounts in special audit on the local purchases sanctioned by the respondent prima facie found that respondent had derelicted his duty and action under the Act was ini- tiated against him. At that time, the respondent was attached to Col- lege of Military Engineering, Pune and was promoted as Major Gen-

274 Union Of India v. Major General Madan Lal Yadav 1996

eral. After initiation of the proceed- ings he was ordered to retire which he had challenged by ling Writ Pe- tition No.3189 of 1986 in the Bombay High Court which stood dismissed on August 29, 1986.

On August 30, 1986, action was initiated against the respondent un- der Section 123 of the Army Act, 1950 [for short, the 'Act']. He was kept under open arrest from that date onwards and retired from ser- vice on August 31, 1986 as Major General. On September 22, 1986, the respondent was issued a chargesheet and recording of the summary evi- dence commenced on September 25, 1986. The respondent led habeas corpus petition in this Court under Article 32 of the Constitution on September 26, 1986 and refused to cross-examine witnesses examined at preliminary enquiry between Octo- ber 20 and 25, 1986. He sought for, and the proceedings were adjourned to November 3, 1986, on the ground that his lawyer from Delhi was to come to Pune for cross-examination of the witnesses. Due to non- availment of the opportunity given to the respondent to cross-examine the witnesses between November 20, 1986 and December 8, 1986, the case was closed for prosecution on November 20, 1986. The respon- dent sought 14 days' time to pre- pare his case which was duly al- lowed. However, the respondent did not give list of his defence witnesses till November 30, 1986. Consequent upon it, on December 26, 1986, the Controller General of Defence Ac- counts directed the Controller, De-

fence Accounts, Southern Command to carry out special audit for the pe- riod in question. The respondent had sought permission to go to Delhi in connection with his writ petition which was granted between Decem- ber 16 and 18, 1986. The writ peti- tion was dismissed by this Court on December 18, 1986 against which heled special leave petition. On Jan- uary 3, 1987, the recording of sum- mary evidence against the respon- dent was concluded. He sought per- mission to go to Delhi in connec- tion with his special leave petition which was granted between January 12 and February 5, 1987. The sum- mary evidence was considered and GOC in Command, Southern Com- mand submitted his report on Febru- ary 2, 1987. The special leave pe- tition came to be dismissed by this Court on February 5, 1987. Pursuant thereto, general Court martial [for short, 'GCM'] was ordered on Febru- ary 24, 1987; the GCM assembled to try the respondent on February 25, 1987. On perusal of the report, it was found that the respondent should be tried for the o ence. He was directed to be produced on February 26, 1987 but it transpired that the respondent had escaped lawful military custody on the intervening night of February 15 and 16, 1987. Warrant was is- sued for his arrest. The respondent voluntarily surrendered on March 1, 1987 and was placed under closed ar- rest w.e.f. 2130 hours on the said day. The Court Martial assembled on March 2, 1987 but it appears that the respondent had, in the mean- while, led writ petition in the Bom- bay High Court challenging the ju-

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risdiction of the Court Martial to try him. In W.P. No.301 or 1987, invok- ing the provisions of Section 123 [2] of the Acts the Division Bench had held that the trial of the accused had not commenced within six months of his ceasing to be subject to the Act. The trial by the Court Martial was, therefore, held to be illegal and ac- cordingly writ was issued. Calling in question this order, this appeal has been led.

It is undisputably clear that the respondent had retired from service on August 31, 1986. He was kept un- der open arrest from August 26, 1986 and had escaped from lawful mili- tary custody on the intervening night of February 15 and 16, 1987 and voluntarily surrendered on March 1, 1987. Though the respondent has pleaded in the High Court that he had gone with prior permission of the authorities, the same has been de- nied by the o cer concerned. The High Court has recorded, as a fact, that the respondent had absconded himself. Section 123 of the Act fas- tens culpability of the o ender who ceased to be subject to the provisions of the Act. Sub-section [1] postulates that where an o ence under the Act had been committed by any person while subject to the Act, and he has ceased to be so subject, he may be taken into and kept in military cus- tody, and tried and punished for such o ence as if he continued to be so subject. Sub section [2] which stands amended by Army Act [Amendment] Act, 37 of 1992, prescribed limita- tion on such action, at the relevant time, that no such person shall be

tried for an o ence, unless his trial commences within six months after he had ceased to be subject to the Act. The amended sub-section [2] is not relevant for our purpose since the o ence in question was indisputably committed prior to the Amendment came into existence. The proviso and other sub-sections are also not rel- evant for our purpose. The ques- tion, therefore, is: on which date did the trial of the respondent com- mence? In other words, whether the trial of the respondent commenced within six months from the date of his retirement, viz., August 31, 1986? By prescription of six months' limi- tation under sub-section [2], the trial of the respondent was to commence before February 28, 1987. Conse- quently, the question, therefore, is: what is the meaning of the words \trial commenced" as used in sub- section [2] of Section 123 and as to when it commences?

It is contended by Shri Malho- tra, learned counsel for the appel- lants, that the word 'commenced' must be understood and considered in the setting and scenario of the op- eration of relevant provisions of the Act and the rules framed thereunder, viz., the Army Rules, 1954 [for short, the 'Rules']. Their conjoint reading would indicate that the moment the Court martial assembles, takes cog- nisance of the o ence and direct to proceed further, the trial must be deemed to have been commenced, as all the steps from the stage are integrally connected with the trial. When Court martial assembled on February 25, 1987 and found prima

276 Union Of India v. Major General Madan Lal Yadav 1996

facie case against the respondent to proceed with the trial and directed to secure his presence, it was discov- ered that the respondent had escaped the lawful open military custody and made himself unavailable. Conse- quently, Court Martial could not pro- ceed with the trial of the respondent until he was arrested and brought be- fore the Court martial or he himself surrendered. Since presence and par- ticipation by the respondent in the trial was a condition precedent, due to non-availability of the respondent, the Court martial could not be pro- ceeded with. After re-appearance of the respondent or, March 1, 1987, further steps were taken to conduct the trial by the Court martial. The trial, therefore, was not barred by op- eration of sub-section [2] of Section 123. Shri Bobde, appearing for the respondent, on the other hand, con- tended that Section 122 [3] provides for exclusion of time during which the accused avoided arrest after the commission of the o ence. Similar provision, preceding amendment to sub-section [2] of Section 123 is not expressly made available on statute. The o ence being of criminal nature, having regard to the provisions of Section 123 limitation should strictly be construed, particularly when it in- volves liberty of the citizen. He ar- gues that the legislature had made a dichotomy of Sections 122 and 123 of the Act. The time during which the accused was not available can- not, therefore, be excluded in com- putation of six months' period pre- scribed in sub-section [2] of Section 123. It is further contended that the trial commenced only when the

Court martial assembled, took oath in terms of Rule 45; applied their mind under Rule 41 to proceed fur- ther under Rule 43. The oath envis- ages thus: \.....I will well and truly try the accused before the Court ac- cording to the evidence and that I will duly administer justice accord- ing to the Army Act without par- tiality, favour or a ection and if any doubt shall arise, then, according to my conscience, the best of my un- derstanding and the customs of war and....". The scheme would indicate that there is a distinction between inquiry and trial and the trial com- mences only when the Court Martial arraigns the accused on the charge against him under Rule 48 whereby the accused shall be required to plead separately to each charge. Since the above Procedure had not been fol- lowed, the trial did not commence. It is further argued that the accused has a valuable right under Rule 48 to object to the charge. If the ob- jection is sustained, the charge is re- quired to be amended under Rule 50. He has also right to object to the members of the Court Martial empanelled. He is also entitled un- der Rule 51 to object to the juris- diction of the Court Martial. Un- til the Court martial assembles to proceed further, the trial cannot be said to have commenced. The ques- tion, therefore, is: as to when the trial commences within the meaning of Section 123 [2]? With a view to appreciate the rival contentions it is necessary to grasp the relevant provi- sion of the Act and the Rules. Arti- cle 33 of the Constitution empowers the Parliament to modify the funda-

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mental rights enshrined in Part III in their application to the members of the Armed Forces or members of the Forces charged with the mainte- nance of the public order etc. The Act was made to regulate the gov- ernance of the regular Army. Under Section 2 [1] (a), o cers shall be sub- ject to the Act wherever they may be. Under Section 3, unless the context otherwise requires \active service" as applied to a person subject to this Act, means the time during which such person is attached to, or forms part of, a force which is engaged in operations against any enemy, or..." \Court Martial" under sub-section [vii] means a court martial held un- der the Act. \Military custody" un- der sub-section [xiii] means the arrest or con nement of a person accord- ing to the usages of the service and includes naval or air force custody. \O ence" has been de ned under sub-section [xvii] to mean \any act or omission punishable" under the Act and \includes a civil o ence as here- inbefore de ned". Chapter IX deals with "arrest and proceedings before trial". Section 101 enables custody of o enders. Under sub-section [1] thereof, any person subject to the Act who is charged with an o ence may be taken into military custody. Under subsection [3] thereof, an o - cer may order into military custody of any \o cer", though he may be of a higher rank, engaged in a quar- rel, a ray or disorder. Chapter X deals with \Court Martial" The de- tails thereof are not material for the purpose of this case since the admit- ted position is that G.C.M. was or- dered against the respondent which

is not under challenge. Section 122 deals with \period of limitation for trial" of \any person" subject to the Act. As stated earlier, sub-section [3] thereof make provision for exclu- sion of time, in computation of the prescribed periods i.e., of any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the o ence. Section 123 deals with liability of o enders who cease to be subject to the provisions of the Act. Sub-section [1] thereof envisages that where an o ence under the Act had been committed by any person while subject to the Act, and he has ceased to be so subjects he may be taken into and kept in military custody, and tried and punished for such of- fence as if he continued to be so sub- ject In other words, though the o - cer governed by the provisions of Act ceases to be the person governed by the provisions of the Act, no trial for an o ence under the Act shall be proceeded with and no such per- son shall be tried for an o ence un- less the trial commences within six months of his ceasing to be subject to the Act. Chapter V of the Rules relates to investigation of the charge and trial by court martial. Rule 22 deals with hearing of charge. Sub- rule [1] provides the procedure to deal with the charge in the presence of the accused who shall have full lib- erty to cross-examine any witness ex- amined against him and he may call any witness and make any statement in his defence. Rule 23 provides pro- cedure for taking down the summery of evidence. Rule 24 empowers re- mand of the accused. Rule 25 pre-

278 Union Of India v. Major General Madan Lal Yadav 1996

scribes procedure on charge against o cer. Rule 26 provides procedure for summary disposal of the charge against the o cers. If delay occa- sions in postal, under Rule 27, it is required to be reported. Rule 28 deals with framing of charge-sheet containing the details and issue or issues to be tried by a Court Mar- tial. The charge-sheet may contain one charge or several charges. Rule 29 deals with commencement of the charge-sheet. Rule 30 contains con- tents of the charge. Rule 33 provides procedure for preparation or defence by the accused. Rule 34 enjoins that before the accused is arraigned for an o ence, he shall be informed by an o cer of every charge for which he is to be tried and also that on his giving the names of the witnesses whom he desire to call in his defence, reason- able steps will be taken for procur- ing their attendance etc. Rule 35 deals with Joint-trial of several ac- cused persons. Due to military exi- gencies or on grounds of necessity of discipline Rule 36 empowers the sus- pension of rules.

In Section 2 of the Rules deal- ing with General and District Courts Martial, convening the Court mar- tial has been envisaged. Under Rule 38, Court Martial may be adjourned if before arraigning the accused in- su cient number of o cers of the Court martial are noticed. Rule 39 speaks of disquali cation and ineli- gibility of o cers for Court Martial. Rule 40 envisages composition of the GCM Rule 41 prescribes procedure to be followed at trial and constitu- tion of Court Martial which is rele-

vant for the purposes of this Court. The rule reads as under: \41. In- quiry be court as to legal constitu- tion. [1] On the court assembling, the order convening the court shall be laid before it together with the charge sheet and the summary of ev- idence or a true copy thereof, and also the ranks, names, and corps of the o cers appointed to serve on the court; and the court shall satisfy it- self that it is legally constituted; that is to say-

(a)that, so far as the court can ascertain, the court has been con- vened in accordance with the provi- sions of the Act and these rules;

(b)that the court consists of a number of o cers, not less than the minimum required by law and, save as mentioned in rule 38, not less than the number detailed;

(c)that each of the o cers so as- sembled is eligible and not disquali-ed for serving on that court martial; and

(d)that in the case of general court martial, the o ces are of the required rank.

[2]The court shall, further, if it is

ageneral or district court martial to which a judge advocate has been ap- pointed, ascertain that the judge ad- vocate is duly appointed and is not disquali ed for sitting on that court martial.

[3]The court, if not satis ed with regard to the compliance with the aforesaid provisions, shall report its opinion to the convening authority, and may adjourn for that purpose.

Rule 43 prescribes procedure of

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trial - challenge and swearing. if the court has satis ed itself that the pro- visions of Rule 41 and 42 have been complied with, it shall cause the ac- cused to be brought before the court and the prosecutor, who must be a person subject to the Act, shall take his due place in the court. As seen, under Rule 45, oath is to be admin- istered to the members of the Court Martial etc. They are required to swear by Almighty God or a rma- tion to \well and truly try the ac- cused". Similar oath may be ad- ministered to Judge Advocate and other o cers under Rules 46 and 47. Rule 48 speaks of \arraignment of accused". It envisages that \af- ter the members of the Court Mar- tial and other persons are sworn or a rmed as above mentioned, the accused shall be arraigned on the charges against him which shall be read out and, if necessary, translated to him in his mother tongue, and he shall be required to plead sepa- rately to each charge". Rule 49 deals with objection by the accused to the charge and Rules 50 allows amend- ment of the charge, if necessary. Rule 51 gives him right to take a special plea on the jurisdiction of GCM and under Rule 52 he can plead guilty or not guilty. Rule 53 deals with \plea in bar" and Rule 54 with \pro- cedure after plea of guilty". Rule 56 deals with plea of not guilty, applica- tion and adduction of evidence by the prosecution. Rule 57 deals with plea of no case and Rule 58 with \close of case for the prosecution and proce- dure for defence where accused does not call witness". Rule 59 deals with the \defence where the accused calls

witnesses" and Rule 60 with \sum- ming up of the case by the judge ad- vocate". Rule 61 deals with \consid- eration of nding" and Rule 62 with \forms record and announcement ofnding". Rule 63 concerns \proce- dure on acquittal" and Rule 64 \pro- cedure on conviction". Rule 65 gives power to the Court Martial to im- pose sentence and Rule 66 deals with recommendation to mercy. Rule 67 deals with \announcement of sen- tence and signing and transmission of proceedings". It is true, as rightly contended by Shri Bobde that on ad- ministration of oath to the members of the Court Martial, the members swear to try the accused according to the provisions of Act and Rules etc. and to administer justice ac- cording to the Act without partiality, favour or a ection. Under Rule 44, names of the members of the Court and presiding o cer will be read over to the accused. He shall be asked, under Section 130, of his objections, if any, for trial by any o cer sit- ting on the court. Any such objec- tion shall be disposed or according to the Rules. The presence and partic- ipation by the accused, therefore, is an indispensable pre-condition. Rule 42 enjoins the court to be satis ed that the requirements of Rule 41 have been complied with. It shall, further, satisfy itself in respect of the charge brought before it and then proceed further. If he pleads \guilty", the procedure contemplated in Rule 54 is to be followed and if he pleads \not guilty", the procedure contemplated in Rule 56 shall be proceeded with and evidence recorded etc.

280 Union Of India v. Major General Madan Lal Yadav 1996

The words \trial commences" employed in Section 123 [2] shall be required to be understood in the light of the scheme of the Act and the Rules. The question is as to when the trial is said to commence? The word 'trial' according to Collins En- glish Dictionary means:

\the act or an instance of try- ing or proving; test or experiment...

Law. a. the judicial examination of the issues in a civil or criminal cause by a competent tribunal and the de- termination of these issues in accor- dance with the law of the land. b. the determination of an accused per- son's guilt or innocence after hearing evidence for the prosecution and nor the accused and the judicial exami- nation of the issues involved".

According to Ballentine's Law Dictionary [2nd ed.] 'trial' means:

\an examination before a compe- tent tribunal according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue. When a court hears and determines any issue of fact or law for the purpose of de- termining the right of the parties, it may be considered a trial"

In Block's Law Dictionary [Sixth Edition] Centennial Edition, the word 'trial' is de ned thus: \A judi- cial examination and determination of issues between parties to action, whether they be issues of law or of fact, before a court that has jurisdic- tion... A judicial examination, in ac- cordance with law of the land, of a cause, either civil or Criminal, of the issues between the parties, whether

of law or facts, before a court that has proper jurisdiction".

In Webster's Comprehensive Dic- tionary International Edition, at page 1339, the word 'trial' is de ned thus: \....The examination, before a tribunal having assigned jurisdiction, of the facts or law involved in ail issue in order to determine that is- sue. A former method of determin- ing guilt or innocence by subjecting the accused to physical tests of en- durance, as by ordeal or by combat with his accuser... In the process of being tried or tested... Made or per- formed in the course of trying or test- ing...".

The word `commence' is de ned in Collins English Dictionary to mean \to start or begin; come or cause to come into being, operation etc." In Black's Law Dictionary it is de ned to mean : \to initiate by per- forming the rst act or step. To be- gin, institute or start Civil action in most jurisdictions is commenced byling a complaint with the court....

Criminal action is commenced within statute of limitations at time prelimi- nary complaint or information is led with magistrate in good faith and a warrant issued thereon... A crimi- nal prosecution is \commenced" [1] when information is laid before mag- istrate charging commission of crime, and a warrant of arrest is issued, or [2] when grand jury has returned an indictment".

In the \Words and Phrases" [Per- manent Edition] Vol.42A, at page 171, under the head \Commence- ment", it is stated that \.4 'trial' commences at least from the time

281

when work of empanelling of a jury begins".

It would, therefore, be clear that trial means act of proving or judi- cial examination or determination of the issues including its own jurisdic- tion or authority in accordance with law or adjudging guilt or innocence of the accused including all steps neces- sary thereto. The trial commences with performance of the rst act or steps necessary or essential to pro- ceed with trial. It would be seen from the scheme of the Act and the Rules that constitution of court martial for trial of an o ence under the Act is a pre-condition for commencement of trial. Members of the court martial and the presiding o cer on nomina- tion get jurisdiction to try the person for o ence under the Act. On their assembly, the accused has the right to object to the nomination of any or some of the members of the court martial or even the presiding o cer, On the objection(s) so raised, it is to be dealt with and thereafter the pre- liminary report recorded after sum- mary trial and the charge trammed would be considered. The charge is required, if need be or asked by the accused to be read over and could be objected by the accused and found tenable, to be amended. Thereafter, the accused would be arraigned and in his presence the trial would be- gin. The accused may plead guilty or not guilty. If he pleads guilty, the procedure prescribed under Rule 54 should be followed and if he pleads not guilty, procedure prescribed un- der Rule 56 is to be followed. Be- fore actual trial begins, oath would

be administered to the members of the court martial the Judge Advo- cate and the sta . The regular trial begins and ends with record- ing the proceedings either convicting and sentencing or acquitting the ac- cused. Thus two views would be pos- sible while considering as to when the trial commences. The broader view is that the trial commences the mo- ment the GCM assembles for pro- ceeding with the trial, consideration of the charge and arraignment of the accused to proceed further with the trial including all preliminaries like objections to the inclusion of the members of the Court Martial. read- ing out the charge/charges, amend- ment thereof etc. The narrow view is that trial commences with the actual administration of oath to the mem- bers etc. and to the prosecution to examine the witnesses when the ac- cused pleads not guilty. The ques- tion then emerges: which of the two views would be consistent with and conducive to a fair trial in accordance with the Act and the Rules?

It is true that the legislature has made a distinction between Section 122 [3] and Section 123 [2]. While in the former, power to exclude time taken in speci ed contingencies is given, in the little, no such provi- sion is made for exclusion of the time since the accused will be kept under detention after he ceased to be gov- erned by the Act. It is equally set- tled law that penal provisions would be construed strictly. As posed ear- lier, which of the two views broader or narrow - would subserve the object are purpose of the Act is the ques-

282 Union Of India v. Major General Madan Lal Yadav 1996

tion We are of the considered view that from a conpectus of the scheme or the Act and Rules the broader view appears to be more conducive to and consistent with the scheme of the Act and the Rules. As soon as GCM assembles the members are charged with the duty to examine the charge/charges framed in sum- mary trial to give an opportunity to the accused to exercise his right to object to the empanelment of mem- ber/members of the GCM to amend the charge and the right to plead guilty or not guilty. These proce- dural steps are integral and insepa- rable parts of trial. If the accused pleads guilty further trial by adduc- ing evidence by the prosecution is ob- viated. The need for adduction of ev- idence arises only where the accused pleads \not guilty". In that situ- ation, the members are required to take oath or a rmation according to Rule 45. It is to remember that the members get right power and duty to try an accused only on appoint- ment and the same ends with the close of the particular case. There- fore, Rule 45 insists on administra- tion of oath in the prescribed man- ner. For a judicial o cer the act of appointment gives power to try the o ender under Criminal Procedure Code; warrant of appointment by the President of India and the oath taken as per the form prescribed in Sched- ule III of the Constitution empow- ers the High Court/Supreme Court Judges to hear the petition or ap- peals. For them, need to take oath on each occasion of trial or hearing is obviated. Therefore, the occasion to take oath as per the procedure for

GCM and the right of the member of the GCM arises with their empan- elment GCM and they get power to try the accused the moment they as- semble and commence examination of the case, i.e., charge-sheet and the record. The trial, therefore, must be deemed to have commenced the mo- ment the GCM assembles and exam- ination of the charge is undertaken. Our view gets forti ed by two deci- sions of this Court in Harish Chan- dra Baijapi & Anr. v Triloki Singh & Anr. [AIR 1957 SC 444] wherein the question was: as to when the trial begins in an election dispute under the provisions of the Repre- sentation of the People Act, 1951? The respondents had led election petitions against the appellant under Section 81 of that Act alleging that the appellant had committed number of corrupt practices and the respon- dents prayed for declaration that the appellant's election was void. Af- ter trial, the election was set aside against which the appeal came to beled ultimately in this Court. One of the questions was: whether the par- ticulars of the corrupt practices and amendment therefore is vaild in law and whether they are maintainable in appeal? In that context, the ques- tion arose: as to when the trial be- gan? It was contended therein that the order amending pleadings under Order 6 Rule 17, CPC was not part of the trial and, therefore, it could not be subject of consideration in appeal. Considering the above question, this Court held that:

\Taking the rst contention, the point for decision is as to what the

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word 'trial' in s.90(2) means.

According to the appellants, it must be understood in a limited sense, as meaning the nal hearing of the petition, consisting of exami- nation of witnesses, ling documents and addressing arguments. Accord- ing to the respondent, it connotes the entire proceedings before the Tri- bunal from the time that the petition is transferred to it under s.86 of the Act until the pronouncement of the award. While the word 'trial' stand- ing by itself is susceptible of both the narrow and the wider senses in- dicated above, the question is, what meaning attaches to it in s.90(2), and to decide that, we must have regard to the context and the set- ting of the enactment. Now, the provisions of the Act leave us in no doubt as to in what sense the word is used in s.90(2). It occurs in Chap- ter III which is headed \Trial of elec- tion petitions". Section 86(4) pro- vides that if during the course of the trial any member of a Tribunal is unable to perform his functions, the Election Commission is to ap- point another members, and there- upon the trial is to be continued. This provision must apply to retire- ment or relinquishment by a mem- ber, even before the hearing com- mences and the expression \during the course of trial" must therefore in- clude the stages prior to the hearing.

Section 88 again provides that the trial is to be held at such places as the Election Commission may ap- point. The trial here must necessar- ily include the matters preliminary to the hearing such as the settlement

of issues, issuing direction and the like. After the petition is transferred to the Election Tribunal under s.86, various steps have to be taken before the stage can be set for hearing it. The respondent has to le his written statement, issues have to be settled. If 'trial' for the purpose of s.90(2) is to be interpreted as meaning only the hearing, then what is the provision of law under which the Tribunals to call for written statements and set- tle issues? Section 90(4) enacts that when an election petition does not comply with the provisions s.81, s.83 or s.117, the Tribunal may dismiss it. But if it does not dismiss it, it must necessarily have the powers to order recti cation of the defects arising by reason of non-compliance with the requirements of s.81, s.83 or s.117. That not being a power expressly conferred on it under s.92 can only be sought under s. 90(2), and resort to that section can be had only if trial is understood as including proceedings prior to hear- ing. Section 92 enacts that the Tri- bunal shall have powers in respect of various matters which are vested in 3 court under the Civil Procedure Code when trying a suit, and among the matters set out therein are dis- covery and inspection, enforcing at- tendance of witnesses and compelling the production of documents, which clearly do not form part of the hear- ing but precede it. In our opinion, the provisions of Chapter III read as a whole, clearly show that 'trial' is used as meaning the entire pro- ceedings before the Tribunal from the time when the petition is transferred to it under s.86 until the pronounce-

284 Union Of India v. Major General Madan Lal Yadav 1996

ment of the award."

In Om Prabha Jain v. Gian Chand & Anr. [AIR 1959 SC 837], it was held that the word \trial" clearly means entire proceedings before tri- bunal from the reference to it by the Election Commission to the con- clusion. This Court found no rea- son to attribute a restricted mean- ing to the word 'trial' in Section 98 of the Representation of the Peo- ple Act, 1951. In the light of the above discussion, we hold that the trial commences the moment GCM assembles to consider the charge and examines whether they would pro- ceed with the trial. The preced- ing preliminary investigation is only part of the process of investigation to nd whether a charge could be framed and placed before the com- petent authority to constitute GCM. On February 25, 1987, the GCM as- sembled and recorded the proceed- ings as under:

\Trial of Shri Yadava, Madan Lal formerly IC-5122N Lt. Gen [Sub- stantive Maj Gen] Yadava Madan Lal of Army Ordnance Corps. School Ja- balpur, attached to National Defence Academy, Khadakwasla. The order convening the court, the charge-sheet and the summary of evidence are laid before the court. The court sat- isfy themselves as provided by Army Rules 41 and 42.

I have satis ed myself, that no Court of Inquiry was held respect the matters forming the subject or the charge before this court martial.

At this stage, the court observe that the Prosecutor and the Defend-

ing O cer have taken their respec- tive places but the accused is not present before the court. The Prose- cutor submits that the accused Shri Madan Lal Yadava formerly Lt Gen [Substantive Maj Gen] Madan Lal Yadava of Army Ordnance Corps School, Jabalpur retired from service with e ect from 31 August 86 [AN]. He has been subjected to the provi- sions of Section 123 of the AA with e ect from the same date and put under open arrest with e ect from 1200 h on 30 August 1986. Ac- cording to a note dated 15 February 1987, found in his room the accused had proceeded to Bombay to engage a suitable counsel. Though he had stated therein that he would keep the Comdt, NDA Khadakwasla informed about his whereabouts, they are not yet known. Vigorous e orts are be- ing made to trace him out and pro- duce him before the Court. In view of this he requests that the Court be adjourned till 1100 h 26 February 1987.

The Defending O cer, IC-6727F Maj Gen Yadav Yitendra Kumar, who is present in the court submits in reply that he too had had no op- portunity to get in touch with the accused and as such has no informa- tion regarding whereabouts of the ac- cused".

\Advice by the Judge Advocate Gentlemen, you have heard the sub- mission made by the Prosecutor with regard to the absence of the accused as also reply of the learned Defend- ing O cer. The Prosecutor has given the detailed circumstances in which the accused had escaped from mili-

285

tary custody. He further submitted before you that vigorous e orts were being made to secure his presence be- fore you to stand the trial and to this e ect, prayed for the adjournment of the Court until 1100 h on 26 Feb 87. In view of the foresaid submis- sion made by the Prosecutor, I advise you to consider granting him suitable adjournment to secure the presence of the accused. The Court decide to adjourn until 1100 h 26th Feb 1987. The above decision is announced in the court".

On February 26, 1987 when it again assembled, the GCM was in- formed by the prosecutor that de- spite their diligent steps taken to have the accused traced and pro- duced before the court they were un- able to do that and a request for ad- journing the proceedings to the next day was made and the defence coun- sel also had expressed his inability to know the whereabouts of the respon- dent. On advice by the Judge Ad- vocate, the court adjourned the case to February 27, 1987. Similarly, the case was adjourned to February 28, 1987 on which date when it assem- bled, the proceedings were recorded as under:

\At 1000 h on 28 February 1987, Court re-assemble, pursuant to the adjournment; present the same mem- bers and the Judge Advocate as on 27 February, 1987. The Court ob- serve that the accused is still not present before the court.

The Prosecutor submits that de- spite the best e orts including tak- ing help from the various civil agen- cies to locate the accused he has not

yet been able to nd out his where- abouts and as such unable to pro- duce him before the court. It is, how- ever, earnestly hoped that he would be able to get some clue about his whereabouts by 01 March 1987. In that event he would be able to pro- duce him before the court on 02 March 1987. He therefore, prays that an adjournment until 1000 h 02 March 1987 be granted. He further gives an undertaking that he will seek no further adjournment on this ac- count and if he is not in a position to produce the accused by that dates will seek sine die adjournment of the Court.

The learned Defending O cer submits that he too has so far no in- formation about the accused.

Advice by the Judge Advocate:

Gentlemen, you have heard the submissions of the Prosecutor and the learned Defending O cer. The Prosecutor submitted before you that he would be in a position to pro- duce the accused on 02 March 1987 and that he would not seek any fur- ther adjournment of the Court on this account in case he failed to se- cure his presence on or before that date. In the interest of the justice, you may therefore, consider granting him yet another adjournment to help secure the presence of the accused .

The Court decide to adjourn un- til 0900 h on 2 March 1987."

Accordingly, on March 2, 1987 when the court re-assembled the ac- cused was present, the charge was handed over to him and he asked for adjournment for 15 days and on ad-

286 Union Of India v. Major General Madan Lal Yadav 1996

vice it was adjourned to March 18, 1987 on which day the respondent informed the court of his ling the writ petition and the assurance given by the counsel appearing for the ap- pellants in the High Court not to proceed with the trial. Accordingly, it was adjourned pending Writ Pe- tition No.301 of 1987, the subject of this appeal. It would thus be clear that the respondent having es- caped from the open military deten- tion caused adjournment of the trial beyond February 28, 1987 to secure the presence and arrangement of the respondent at the trial by GCM.

Our conclusion further gets for- ti ed by the scheme of the trial of a criminal case under the Code of Criminal Procedure, 1973, viz., Chapter XIV \Conditions requisite for initiation of proceedings" con- taining Sections 190 to 210, Chap- ter XVIII containing Sections 225 to 235 and dealing with \trial before a Court of Sessions" pursuant to com- mittal order under Section 209 and in Chapter XIX \trial of warrant-cases by Magistrates" containing Sections 238 to 250 etc. It is settled law that under the said Code trial commences the moment cognizance of the of- fence is taken and process is issued to the accused for his appearance etc. Equally, at a Sessions trial, the court considers the committal order under Section 209 by the Magistrate and proceeds further. It takes cognizance of the o ence from that stage and proceeds with the trial. The trial begins with the taking of the cog- nizance of the o ence and taking fur- ther steps to conduct the trial.

Even if narrow interpretation is plausible, on the facts in this case, we have no hesitation to conclude that the trial began on February 25, 1987 on which date the Court Martial as- sembled, considered the charge and the prosecution undertook to pro- duce the respondent who was found escaped from the open detention, be- fore the Court. It is an admit- ted position that GCM assembled on February 25, 1987. On consideration of the charge, the proceedings were adjourned from day to day till the re- spondent appeared on March 2, 1987. It is obvious that the respondent had avoided trial to see that the trial would not get commenced. Under the scheme of the Act and the Rules, presence of the accused is a pre- condition for commencement of trial. In his absence and until his presence was secured, it became di cult, may impossible, to proceed with the trial of the respondent-accused. In this behalf, the maxim nullus commodum capere potest de injuria sua propria- meaning no man can take advantage of his own wrong - squarely stands in the way of avoidance by the re- spondent and he is estopped to plead bar of limitation contained in Section 123 [2]. In Broom's Legal Maximum [10th Edn.] at page 191 it is stated \it is a maxim of law, recognized and established, that no man shall take advantage of his own wrong"; and this maxim, which is based on el- ementary principles, is fully recog- nized in Courts of law and of eq- uity, and, indeed, admits of illustra- tion from every branch of legal pro- cedure. The reasonableness of the rule being manifest, we proceed at

287

once to show its application by ref- erence to decided cases. It was noted therein that a man shall not take advantage of his own wrong to gain the favourable interpretation of the law. In support thereof, the au- thor has placed reliance on another maxim frustra legis auxilium quoerit qui in legem committit. He relies on Perry v. Fitzhowe [8 Q.B. 757]. At page 192, it is stated that if a man be bound to appear on a cer- tain day, and before that day the obligee put him in prison, the bond is void. At page 193, it is stated that \it is moreover a sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned". At page 195, it is further stated that \a wrong doer ought not to be per- mitted to make a pro t out of his own wrong". At page 199 it is observed that \the rule applies to the extent of undoing the advantage gained where that can be done and not to the ex- tent of taking away a right previously possessed".

The Division Bench of the High Court has recorded the nding that the respondent has absconded from open military detention. From the narration of the facts it is clear that the respondent was bent upon pro- tracting preliminary investigation. Ultimately, when the GCM was con- stituted, he had challenged his de- tention order. When he was un- successful and the trial was to be- gin he escaped the detention to frus- trate the commencement of the trial and pleaded bar of limitation on and from March 1, 1987. The respondent

having escaped from lawful military custody and prevented the trial from being proceeded with in accordance with law, the maxim nullus com- modum capere potest de injuria sua propria squarely applies to the case and he having done the wrong, can- not take advantage of his own wrong and plead bar of limitation to frus- trate the lawful trial by a competent GCM. Therefore, even on the narrow interpretation, we hold that contin- uation of trial from March 2, 1987 which commenced on February 25, 1987 is not a bar and it is a valid trial. It is next contended that trial of the respondent at this distance of time is not justiciable. In support of this contention, reliance is placed by Shri Bobde on Devi Lal & Anr. v. The State of Rajasthan [(1971) 3 SCC 471] wherein the High Court had con-rmed the conviction under Section 302 read with Section 34, IPC and sentence for imprisonment for life. This Court found that the prosecu- tion had not proved as to which of the two persons had opened the re as found by the Sessions Court and the distinction between Section 149 and 34, IPC was not clearly noticed by the Sessions Court and the High Court. When retrial was sought for by the prosecution, this Court re- jected the contention on the ground that retrial at such a belated stage was not justi able. The ratio has no application to the facts in this case. Therein, the trial was proceeded with and when the accused was convicted by the Sessions Court and con rmed by the High Court, this Court found that the prosecution had not estab- lished the case in accordance with

288 Union Of India v. Major General Madan Lal Yadav 1996

law and had not proved the guilt be- yond reasonable doubt. Under those circumstances, this Court had rightly declined to order retrial. But the ra- tio does not t into the facts of this case. It is seen that the respondent had frustrated the trial by escaping from detention and reappeared after the limitation for trial of the o ence was barred. Therefore, acceptance of the contentions would amount to putting a premium on avoidance.

We nd ourselves unable to agree with the view expressed by the As- sam High Court in Gulab Nath Singh v. The Chief of the Army Sta [1974 Assam LR 260]. It is next contended that since the respondent had sur- rendered himself, trial could be con-

ducted by GCM at Delhi. We nd no equity in this behalf. The witnesses are at Pune; records are at Pune, and the o ence has taken place at Pune. Therefore, the GCM should be con- ducted at Pune. We nd no justi - cation in shifting the trial to Delhi.

The appeal is accordingly al- lowed. The judgment of the High Court is set aside. The writ petition stands dismissed. The appellants are at liberty to secure the presence of the respondent; it would be open to the respondent to surrender himself to closed military detention; and the respondent would keep him in deten- tion and conduct the trial as expedi- tiously as possible.

Chapter 22

Major Kadha Krishan v. Union Of India 1996

Major Kadha Krishan v. Union Of India & Ors on 25 March, 1996 Equivalent citations: 1996 SCC (3) 507, JT 1996 (3) 650 Author: M Mukherjee Bench: M M.K.

PETITIONER:

MAJOR KADHA KRISHAN

v. RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT: 25/03/1996

BENCH:

MUKHERJEE M.K. (J)

BENCH:

MUKHERJEE M.K. (J)

G.B. PATTANAIK (J)

CITATION:

1996 SCC (3) 507 JT 1996 (3) 650

1996 SCALE (3)241

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

M.K. MUKHERJEE, J.

Leave granted.

The appellant was a permanent Commissioned O cer of the Indian Army holding the substantive rank of Major. While he was posted at the Military Farm in Jullunder City he was served with a notice dated September 10, 1990 issued under the directions and on behalf of the Chief of the Army Sta calling upon him to show cause why his services should not be terminated under Section 19 of the Army Act, 1950 (`Act' for short) read with Rule 14 of the Army Rules, 1954 (`Rules' for short) for the misconducts he was found to have committed during his tenure as the O cer in-charge of the Military Farm, Jaipur. The misconducts are set out in paragraph 3 of the no- tice but as they are not germane for the purpose of this appeal, it is not necessary to detail them. The rea- sons which prompted the Chief of the Army Sta to take recourse to the

290 Major Kadha Krishan v. Union Of India 1996

above provisions of the Act and the Rules are contained in paragraph 4 of the notice, which reads as under:

\And whereas the Chief of the Army Sta is further satis ed that your trial for the above misconduct is impracticable having become time barred by the time the court of in- quiry was nalized and he is of the opinion that your further retention in service is undesirable."

In due course the appellant showed cause against his proposed termination of services but it did not nd favour with the authorities. Hence, on their recommendations, the Central Government issued an order on February 28, 1992 terminat- ing the service of the appellant. Ag- grieved thereby the appellant led a writ position before a learned Judge of the Rajasthan High Court. In as- sailing the order of termination the principal ground that was raised by the appellant was that the provisions of Section 19 of the Act and Rule 14 of the Rules could not be inverted as the period of limitation prescribed under Section 122 of the Act for hold- ing his trial by a Court Martial was long over. Besides, it was contended that the satisfaction of the authori- ties that it was impracticable to hold the trial was not obtained in accor- dance with Rule 14. The appellant also denied that he was guilty of the misconducts alleged in the no- tice and gave out his defence against the same. The learned Judge allowed the writ petition, quashed the or- der under challenge and directed that the appellant be reinstated in service with all consequential bene ts. In

passing the above order the learned Judge rstly held that the appellant was made a scape goat for the lapses and delinquencies of others. As re- gards the applicability of Section 19 of the Act and Rule 1 of the Rules the learned Judge concurred with the submissions of the appellant relying principally upon the Division Bench judgment of the Delhi High Court in Lt. Col. (T.S.) H.C. Dhingra v. Union of India & Anr. 1988

(2) Delhi lawyer 109. In appeal pre- ferred by the respondent - Union of India a Division Bench of the High Court set aside the above judgment of the learned Single Judge and dis- missed the writ petition of the appel- lant. The Division Bench held that the view taken by the Delhi High Court in H.C. Dhingra's case (supra) was not correct and that proceedings under Section 19 of the Act read with Rule 14 of the Rules could be taken even after the expiry of the period of limitation prescribed under Section 122 of the Act. The ndings of fact recorded by the learned Single Judge in favour of the appellant were also upset. The above order of the Divi- sion bench is under challenge in this appeal.

To appreciate the contentions raised by Mr. Ramachandran in sup- port of the appeal it will be appropri- ate to rst refer to the relevant provi- sions of the Act and the Rules. Sec- tion 19 of the Act reads as under:

\Subject to the provisions of this Act and the rules and regulations made thereunder the Central Gov- ernment may dismiss or remove from the service, any person subject to

  291
this Act." tunity to show cause in the manner
The other section of the Act speci ed in sub-Rule (2) against such
which need reproduction is Section action:
122 which, at the material time, Provided that this sub-rule shall
stood as under: \(1) Except as pro- not apply -
vided by sub- section (2), no trial by (a) when the service is termi-
court martial of any person subject
nated on the ground of conduct
to this Act for any o ence shall be which has led to his conviction by a
commenced after the expiration of a criminal court; or
period of three years from the date (b) where the Central Govern-
of such o ence.
ment is satis ed that for reasons, to
 

(2)The provisions of sub-section be recorded in writing, it is not ex-

(1)shall not apply to a trial for an pedient or reasonably practicable to

o ence of desertion or fraudulent en- give to the o cer an opportunity of
rollment or for any of the o ences showing cause.
mentioned in Section 37. (2) When after considering the
(3) In the computation of the pe-
reports on an o cer's misconduct,
riod of time mentioned in subsection the Central Government, or the
(1), any time spent by such person Chief of the Army Sta is satis ed
as a prisoner of war, or in enemy ter- that the trial of the o cer by a court
ritory, on in evading arrest after the martial is inexpedient or impractica-
commission of the o ence, shall be ble, but is of the opinion that the fur-
excluded. ther retention of the said o cer in
 
(4) No trial for an o ence of de- the service is undesirable, the Chief
sertion other than desertion on ac- of the Army Sta shall so inform the
tive service or of fraudulent enroll- o cer together with all reports ad-
ment shall be commenced if the per- verse to his had he shall be called
son in question, not being an o cer, upon to submit, in writing, the ex-
has subsequently to the commission planation."
of the o ence, served continuously (emphasis supplied)
in an exemplary manner for not less
Mr. Ramachandran rst con-
than three years with any portion of
tended that one of the requisites to
the regular Army." invoke the summary procedure en-
Rule 14