A Compendium of Indian
Military Cases: Apex Court
Judgments & Some Relevant
Common Law Cases Volume
I
Ed: 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 |
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.
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.
| 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
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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-
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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.
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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
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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.
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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."
107
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-
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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
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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-
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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-
113
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-
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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 |
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
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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-
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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:
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\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-
149
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 |
| 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-
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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
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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
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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
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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.
| 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
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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
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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
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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
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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
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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
245
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 |
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-
275
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-
277
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
279
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
283
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 of the Rules, so far as it | |||
| visaged under Rule 14 (2) to termi- | |||
| is relevant for our present purposes, | nate the services of an o cer by the | ||
| reads as follows: | Central Government in exercise of its | ||
| \Termination of service by the | powers under Section 19 of the Act | ||
| Central Government on account of | is to obtain a satisfaction that his | ||
| misconduct - (1) When it is proposed | trial by a Court Martial is inexpe- | ||
| to terminate the service of an o cer | dient or impracticable. Such a satis- | ||
| under Section 19 on account of mis- | faction, according to Mr. Ramachan- | ||
| conduct, he shall be given an oppor- | dran, can be arrived only at a time | ||
| 292 | Major Kadha Krishan v. Union Of India 1996 |
when trial by a Court Martial is per- missible or possible. As in the in- stant case, admittedly, such a trial was barred by limitation under Sec- tion 122 of the Act the above Rule could not be invoked. We nd much substance in the above contention of Mr. Ramachandran. It is not in dis- pute that at the time the impugned notice was sent, no trial of the appel- lant by Court Martial could be held for sub-section (1) of Section 122 (as it then stood) clearly envisaged that it should not be commenced after ex- piration of three years from the date of commission of the o ence which in the instant case was about 7 years prior to the issuance of the notice, indeed, as seen earlier, in the no- tice itself it is stated that the trial had become time barred. When, the trial itself was legally impossible and impermissible the question of its be- ing impracticable, in our view can- not or does not arise, `Impracticabil- ity' is a concept di erent from `im- possibility' for while the latter is ab- solute, the former introduces at all events some degree of reason and in- volves some regard for practice. Ac- cording to Webster's Third New In- ternational Dictionary `impractica- ble' means not practicable; incapable of being performed or accomplished by the means employed or at com- mand. `Impracticable' presupposes that the action is `possible' but be- ing to certain practical di culties or other reasons it is incapable of being performed. The same principle will equally apply to satisfy the test of `inexpedient' as it means not expedi- ent; disadvantageous in the circum- stances, inadvisable, impolitic. It
must therefore be held that so long as an O cer can be legally tried y a Court Martial the concerned author- ities may, on the ground that such a trial is not impracticable for inexpe- dient, involve Rule 14 (2). In other words, once the period of limitation of such a trial is over the authori- ties cannot take action under Rule 14
(2). While passing the impugned or- der the Division Bench however did not at all consider, while interpret- ing Rule 14 (2), the import of the words `impracticable' or `inexpedi- ent' as appearing therein and pro- ceeded on the basis that since Section 127 of the Act (since repealed) per- mitted trial even after a conviction or acquittal by a Court Martial, it nec- essarily meant that the Rule could be pressed into service even after the pe- riod of limitation. It appears that in making the above observation the High Court did not notice that Sec- tion 127 relates to a trial by a `crim- inal court' and not `Court Martial' and speaks of a stage after the trial by the letter is over. The matter can be viewed from another angle also. So far as period of limitation of trials by Court Martial is concerned Sec- tion 122 of the Act is a complete Code in itself for not only it provides in its sub-section (1) the period of limitation for such trials but speci-es in sub-section (2) thereof the of- fences in respect of which the limi- tation clause would not apply. Since the term of the above section is abso- lute and no provision has been made under the Act for extension of time - like Section 473 Criminal Procedure Code - it is obvious that any trial commenced after the period of lim-
293
itation will be patently illegal. Such a provision of limitation prescribed under the Act cannot be overridden or circumvented by an administrative act, done in exercise or powers con- ferred under a Rule. Mr. Ramachan- dran was, therefore, fully justi ed in urging that power under Rule 14 of the Army Rules could not be exer- cised in a manner which would get over the bar of limitation laid down in the Act and that if Rule 14 was to be interpreted to give such power it would clearly be ultra vires. We are therefore in complete agreement with the observations made by the Delhi High Court in H.C. Ohinura's case (supra) that in purported exercise of administrative power Under Rule 14, in respect of allegations of miscon- duct tribal by Court Martial, the au- thorities cannot override the statu- tory bar of subsection (1) of Section 122 of the Act for no Administra- tive act or at can discard, destroy or annul a statutory provision. The other contention of Mr. Ramachan- dran was that the satisfaction with regard to inexpediency or impracti- cability of a trial by Court Martial must be only on a consideration of the reports of misconduct. Accord- ing to Mr. Ramachandran if on a perused of the reports the author- ities found that the nature of mis- conduct or the context in which it had been committed were such that it was impracticable or inexpedient to hold the Court Martial, the pro- cedure under rule 14 might be re- sorted to. In other words, Mr. Ra- machandran submitted, the satisfac- tion regarding the inexpediency or impracticability to hold a Court Mar-
tial must ow from the nature and the context of the misconduct itself and not from any extraneous factor which in the instant case was that the Court Martial proceedings would be time barred. This contention of Mr. Ramchandran is also, in our view, in- defensible.
As noticed earlier, Rule 14 (2) opens with the words \when after considering the reports on an o - cer's misconduct, the Central Gov- ernment, or the Chief of the Army Sta is satis ed.........". It is evident, therefore, that the satisfaction about the inexpediency or impracticability of the trial has to be obtained on consideration of the reports on the o cer's misconduct. That necessar- ily means, that the misconduct and other attending circumstances relat- ing thereto have to be the gole basis for obtaining such a satisfaction.
The purport of the above Rule can be best understood by way of an illustration. The Chief of Army Sta receives a report which reveals that an Army O cer has treacher- ously communicated intelligence to the enemy - an O ence punishable under Section 34 of the Act. He how- ever nds that to successfully prose- cute the o cer it will be necessary to examine some witnesses, ensuring presence of whom will not be feasible and exhibit in the interest of the se- curity of the State. In such an even- tuality he may legitimately invoke the Rule to dispense with the trial on the grounds that it would be im- practicable and/or inexpedient. But to dispense with a trial on a satis- faction doctors the misconduct - like
| 294 | Major Kadha Krishan v. Union Of India 1996 |
the bar of limitation in the present case - will be wholly alien to Rule 14 (2). For the foregoing discussion we set aside the impugned order of the Division Bench of the High Court
and restore that of the learned Single Judge. The appeal is thus allowed with costs which is assessed at Rs. 10,000/-.
Chapter 23
Major R.S. Budhwar v. Union Of India 1996
Major R.S. Budhwar v. Union Of India & Ors on 8 May, 1996
Equivalent citations: 1996 AIR 2000, JT 1996 (5) 39
Author: M Mukherjee.
Bench: M M.K.
PETITIONER:
MAJOR R.S. BUDHWAR
v. RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 08/05/1996
BENCH:
MUKHERJEE M.K. (J)
BENCH:
MUKHERJEE M.K. (J)
ANAND, A.S. (J)
CITATION:
1996 AIR 2000 JT 1996 (5) 39
1996 SCALE (4)269 ACT: HEADNOTE:
JUDGMENT:
W I T H
CRIMINAL APPEAL No. 625 of 1996.
(Arising out of SLP (Crl.) No. 2126 of (1994)
Mahavir Singh
V.
Union of India
W I T H
CRIMINAL APPEAL NO. 626 OF 1996
(Arising out of SLP (Crl.) No. 2138 of 1994)
Inder Pal Singh
V.
Union of India
J U D G M E N T
M.K. MUKHERJEE. J.
The above appeal and the two Special Leave Petitions were directed to be heard together as they relate to one and the same incident but hav- ing to the facts regard to the facts
| 296 | Major R.S. Budhwar v. Union Of India 1996 |
that over that incident two separate trials were held by General Court Martial (GCM' for short), assailing their verdicts two independent writ petitions were led and the Delhi High Court dismissed them by two separate judgments, which are under challenge herein, we have heard them one after the other and proceed to dispose of them accordingly. CRIM- INAL APPEAL NO. 1194 OF 1195
\Army Act COMMITTING A CIVIL OFFENCE, THAT IS TO SAY Section 69 ABETMENT OF AN OFFENCE SPECIFIED IN SECTION 302 OF INDIAN PE- NAL CODE, IN CONSEQUENCE OF WHICH ABETMENT SUCH OFFENCE WITH COMMITTED, CONTRARY TO SECTION 109 READ WITH SECTION 34 OF IN- DIAN PENAL CODE.
in that they together, at Field, on or before 14 June, 1987, abetted No. 3173368H Sep (L/nk) Inder Pal Singh and No. 3174523 L. Sep Ma- havir Singh, both of 8 JAT to com- mit murders of IC 14807N Colonel SS Sahota and IC 28739H Major Jaspal Singh of the same unit, which was committed in consequence of such abetment by the said Sep (L/NK) Inder Pal Singh and Sep. Mahavir Singh."
The GCM found the appellant and one of the other two (since dead) guilty of the above charge and awarded them punishment of impris- onment for life and cashiering. Ag- grieved thereby the appellant pre- sented a petition under Section 164
(1) of the Army Act, 1950 ('Act' for short) wherein he prayed that
the ndings and sentences recorded against him be not con rmed. The GOC-in-C Eastern Command how- ever rejected that petition and con-rmed the ndings and sentences of the GCM. He then led another pe- tition in accordance with Section 164
(2) of the Act which was rejected by the Central Government. The appel- lant then approached the Delhi High Court with a petition under Arti- cle 226 of the Constitution of India which was also dismissed. Hence this appeal.
Mr. Lalit, the learned counsel ap- pearing for the appellant, rst con- tended that there being not an iota of evidence in the proceedings of the G.C.M.to indicate that L/NK Inder Pal Singh and Sep. Mahavir Singh (the petitioners in the two special leave petitions) committed the mur- ders of the two o cers mentioned in the charge the High Court ought to have held that the ndings of the G.C.M. as recorded against the ap- pellant were perverse. While on this point, Mr. Lalit however fairly con- ceded that having regard to the lim- ited scope of enquiry the High Court exercises while sitting in its extra- ordinary writ jurisdiction it was dif-cult for him to assail the nding rcorded by the G.C.M. that the ap- pellant had instigated the above two persons to commit the murders on the ground that it was based on 'no evidence', but he strenuously urged that mere proof of the said fact could not in any way saddle the appellant with the o ence of abetment of the commission of the murders, in ab- sence of any evidence whatsoever to
297
prove that they actually committed the murders, and, that too on be- ing instigated by the appellant. The other point that was raised by Mr. Lalit was that even if it was as- sumed that there was some evidence to connect the appellant with the o ence alleged against him as fur- nished by Inder Pal Singh and Ma- habir Singh, even then the GCM, which functions as a judicial Tri- bunal, ought not to have relied upon ths same, in absence of any indepen- dent corroboration thereof, as such evidence was adduced by the two assailants mentioned in the charge, who were undoubtedly accomnplices. Mr. Goswami, learned cuunsel ap- pearing for the respondents on the other hand contended that ib could not be said that there was no evi- dence to cnnnect the appellant with the charge leveiled against him and, therefore, this Court would nut be justi ed in interfering with the nd- ings of the G.C.H.even if it, on its, own appraisal, found the evidence to be insu cient or unreliable. In responding to the other contention of Mr. Lalit, Mr. Goswami rst drew our attention to Section 133 ot the Act which makes, subject to its provisions, Evidence Act, 1872 ap- plicable to a]l proceedings before a Court Martial and contended that in view of section 133 thereof (Evidence Act), a conviction based on the un- corrcborated testimony of an accom- plice could not be held to be illegai. However, Mr. Goswami submitted that in the instant case there was ampie material to corroborate the ev- idence of the accomplices. In the con- text of the rival stands of the par-
ties the crucial point that falls for our consideratinn is whether there is any evidence to prove that Inder Pal Singh and Mahavir Singh committed the murders of Col. S.S. Sahola, the Commanding O cer and major Jas- pal Singh, Second-in-Command of 8, JAT Unit (hereinafter referred to as 'CO' and '2IC' respectively) on June 16, 1987 as alleged by the prosecu- tion. If this question is to be an- swered in the negative, then the fact that there is evidence to prove that the appellant had instigated them to commit the murder - which is con- ceded by Mr. Lalit also - would be redundant; and, resultantly, the im- pugned order of the G.C.M. would have to be quashed. To nd an an- swer to the above question we have carefully gone through the evidence adduced during the G.C.M. proceed- ings. On perusal of the evidence of Mahavir Singh (PW 10 ) and In- der Pal Singh (PW 16), the two accomplices, who, admittedly were the most important witnesses for the prosecution, we nd that they rst spoke of the orders they had earlier received from the appellant and oth- ers to commit the two murders. In narrating the incident of the fate- ful day, both of them stated that at or about 12 noon they went to- wards the o ce of CO and 2IC with arms and ammunitions. After mov- ing some distance together, Mahavir Singh went towards the o ce of CO and Inder Pal Singh towards that of 2IC. According to Mahavir Singh, enroute he met L/NK Ranbir Singh (PW 21) who asked him why he had come there. Mahavir Singh thenred one round towards him, who im-
| 298 | Major R.S. Budhwar v. Union Of India 1996 |
mediately caught hold of the muz- zle of his (Mahavir's) ri e. Mahavir Singh next stated what at that point of time, rapid re came from the drill shed side towards the CO's jonga which was standing there. Simulta- neously, he (Mahavir Singh) red one round which injured Ranbir's hand and he fell down. The version of In- der Pal Singh (PW 16) as regards the ring is that when he reached the o ce of the 21C he found that he was not there. He then went to- wards the o ce of the Adjutant. On the way he heard sounds of ring. When he reached the o ce of Ad- jutant he could not see clearly as to who were inside as the room was dark and windows were covered with cur- tains. Through the window he saw a Captain sitting inside and talking to some one, who might be 2IC. He thenred several rounds in the air. In the meantime Mahavir Singh came there and told him to run away. Then both of them ran towards the jungle.
Drawing our attention to the above statements of the two accom- plices, Mr. Lalit argued that as nei- ther of them admitted to have com- mitted the murders it must be said that the nding of the G.C.M. That the appellant was guilty of the charge levelled against him was perverse - being based on 'no evidence'. We are unable to accept the contention of Mr. Lalit for, later on in his ev- idence P.W.10 fully supported the charge levelled against the appellant - though PW 16 did not - and there is other circumstantial evidence on record to substantiate the prosecu- tion case. On being examined further
during crial PW 10 testi ed:
\It is correct that I alongwith L/NK Inder Pal Singh had killed the CO and 2IC on the orders of accused No. 1 (the appellant)." He further stated: \It is correct that accused No.1 appellant) had asked me a ques- tion as to with what aim I was try- ing to implicate him in this case and I had replied that I was not trying to implicate him in any case and he had given a task which I had aacom- plished."
Then again when asked about what he knew about the loss of grenades of the Unit he said the grenades were stolen to kill CO and 2IC. He also stated that he has al- ready been sentenced to be hanged for committing the murders of CO and 2IC for obeying the orders of Major Sahib (the appellant). Again in cross-examination he testi ed that his job was to eliminate CO and 2IC. The other piece of his evidence, which clearly indicates that he had committed the murders on the insti- gation of the appellant, reads as un- der:
On 18 June 87, after 1600 hrs. I and L/NK Inder Pal surrendered to Hav Nav Rattan of my unit near Kambang Bridge. We have also sur- rendered our arms to him. We were made to sit in a 1 Ton vehicle of our unit. After some time one capt. of 16 Madras alongwith a guard of 3-4 OR came to the 1 Ton vehicle. 2 or 3 OR sat with us in the vehicle. The guard Commander remained outside the vehicle. The rst o cer of my unit to come the site of surrender was Maj Lamba. He had come in
299
a RCL and it was parked ahead of 1 Ton vehicle. He wished him Ram Ram while his vehicle crossed 1 Ton vehicle. He replied by saluting but did not speak anything. After about half an hour of our surrender, ac- cused No.1 came to us to the 1 Ton vehicle. He was looking as if he had come running and he was perspir- ing. When he came close to us, we wished him Ram Ram. He came further close to us and patted me on my back and said \Shabash Kam Kar Diya, Chettri Sahib or Doctor Sahib Ko Kiyon Rager Diya" mean- ing thereby,\well done, the job has been done, why Chettri Sahib and Doctor Sahib killed."
In view of the above testimony of P.W.10 it cannot at all be said that he did not support the charge levelled against the appellant. It is of course true that PW 10 is an accomplice but from the proceedings of the trial wend that the Judge Advocate in his closing address properly explained to the GCM the value of the evidence of an accomplice with reference to Sec- tion 133 and Section 114 (Illustration b) of the Evidence Act. If inspite of such explanation the GCM found the appellant guilty it could not be said that its nding was perverse. This apart, the following circumstances proved through other witnesses am- ply corroborate the evidence of P.W. 10:
i) on 16 June, 1987 both Inder Pal Singh and Mahavir Singh were found going towards the main o ce build- ing with ri es and some rounds of ammunitions. While Mahavir Singh went towards the o ce of the CO, In-
der Pal Singh went towards the o ce of the 2IC:
ii) Near CO's o ce when NK Ranbir (PW 21) caught hold of the muzzle of the ri e of Mahavir Singh he red or round as a result of which Ranbir sustained an injury on his hand and fell down unconscious. Af- ter regaining his senses when he went to the o ce of the CO he found him lying on the ground near his revolv- ing chair gasping for breeth; iii) After the ring incident Mahavir Singh and Inder Pal Singh together ran away towards the jungle along with their arms and ammunition;
iv) Both of them surrendered on June 18, 1987 with their ri es and ammunitions which were seized and sent to Forensic Science Laboratory, Calcutta for examination; v) On ex- amination it was found that ten car- tridges cases were red through one of those ri es bearing Regd. No 9744 which was issued to Inder Pal Singh and two cases were red through the other ri e, bearing. Regd No.7343 which was issued to Mahavir Singh, in the morning of June 16, 1987: vi) While sitting in the o ce of Adju- tant, Major Chandal (CW 1) saw through the window Ranbir Singh holding the muzzle of a ri e. At that moment he heard another bul- let being red from the side of his back. He than ducked down on the table with face downward and saw, through the window, Inder Pal Singhring about 10 to 15 rounds. Af- ter the ring had stopped when he came out of the o ce of the CO he found him lying in a reclining po- sition against the wall and he was
| 300 | Major R.S. Budhwar v. Union Of India 1996 |
badly injured and gasping for breath; and vii) Dr. Senewal, (PW 15) who held post mortem examination on the dead bodies of CO and 2IC found injuries on their persons which, in his opinion, were caused by bullets and resulted in their deaths.
When the above circumstantial evidene is considered along with the evidence of P.W.10 the conclusion is irresistable that it is not a case of 'no evidence' but one of 'su cient evi- dence . The ndings of the GCM not having been assailed in any other court, the conviction and sentence of the appellant is well merited. We therefore hold that there is no merit in this appeal. It is accordingly dis- missed.
CRIMINAL APPEAL NO
.......OF 1996 OUT OF SLP (CRL
.NO.2126 OF 1994) AND CRIM- INAL APPEAL NO.....OF 1994 (ARISING OUT OF S.L.P.(CRL.) NO.2158 OF 1994)
Leave granted in both the peti- tions, limited to the question of sen- tence.
Sep Mahavir Singh and L/NK In- der Pal Singh the appellants in these two appeals, were tried by the Gen- eral Court Martial (`GCM') for com- mitting the murders of four Army Of-cers, namely, Col.S.S. Sahota, Ma- jor Jaspal Singh, Captain B.K. Chot- tri and Captain A. Srivastava on June 16, 1987. Of them Col. Sahota was the Commanding O cer, Ma- jor Jaspal Singh was the Second-in- Command and Captain Chottri was an o cer attached to 8 JAT Unit while Captain Srivastava belonged to
302 Field Ambulance. The two ap- pellants were also attached to the above unit. By its order dated De- cember 10, 1988 the GCM held them guilty of the above o ences and sen- tenced each of them to death. Ag- grieved thereby they presented pe- titions under Section 164 (1) of the Army Act ('Act' for short) wherein they prayed that the ndings and sentence of the GCM be not con-rmed. Those petitions were re- jected and the ndings and sentence recorded against thems were con-rmed. The appellants thereafterled another petition under Section 164 (2) of the Act which was also re- jected. They then moved the Delhi High Court with a petition under Ar- ticle 226 of the constitution of India wherein they con ned their challenge to the sentence imposed upon them on the ground that the GCM did not take into consideration the mitigat- ing circumstances while awarding the punishment. In resisting the peti- tion, the respondents contended that having regard to the fact that the appellants committed the murders in a planned manner they deserved the sentence of death. The High court rejected the contention of the appel- lants and for that matter their writ petition with the following observa- tions:
\The question of sentence has to be decided by taking into account the aggravating circumstances as well as mitigating circumstances and then drawing a balance. The manner in which the crime was commited, the weapons used and brutality or lack of it are some of these relevant consid-
301
erations to be borne in mind. Due re- gard is to be given both to the crime and the criminal. This was a case of killing of a Commanding O cer, an O cer Second in Command and two other o cers. The Command- ing O cer in an Army Regiment is like a father of his subordinates. The contention that the petitioners had good service record and had no ad- vantage in killing these o cers and they had killed these o cers on in- stigation of major Budhwar cannot be accepted in the present petition as without going into these aspects but assuming two views on question of sentence were possible, it is not for this court to substitute its view for that of the authority under the Act. It cannot be held that the view of au- thorities in awarding death penalty was in manner perverse. We may notice that according to respondents life sentence was imposed on Major Budhwar as he was charged for abet- ment whereas petitioners were actual perpetrators of the crime.
Hence these two appeals.
Drawing inspiration from the judgment of this Court in Triveniben & ors. v. State of Gujarat & Ors. 1989 (1) SCR 509, wherein this Court has held that undue and pro- longed delays occurring at the in- stance of the executive in dealing with the petitions of convicts led in exercise of their legitimate right is a material consideration for commut- ing the death penalty, the learned counsel for the appellants submitted that the appellants were entitled to the commutation of their sentence as it took the respondent more than
three and half years to dispose of the petitions presented by the appel- lants under sub-sections (1) and (2) of section 164 of the Act. On going through the record we nd much sub- stance in the above grievance of the appellants.
Following the death sentence pro- nounced by the GCM on December 10, 1988 the appellants led their application under sub-section (i) of Section 164 on December 31, 1988 which was disposed of on Febru- ary 13, 1991, that is, after a pe- riod of more than two years and one month. Thereafter the appel- lants moved their petition under sub- section (2) of Section 164 on March 7, 1991 and this petition was dis- posed of after a delay of more than one year and six months. The to- tal delay therefore, comes to more than three years and seven months; and needless to say during this period the appellants were being haunted by the shadow of death over their heads. No explanation is forthcoming for these unduly long delays and there- fore, the appellants can legitimately claim consideration of the above fac- tor in their favour, but, then, it has also been observed in Triveniben's case (supra), relying upon the fol- lowing passage from the earlier judg- ment of this Court in Sher Singh v. State of Punjab (1983) 2 SCC 344:
\The nature of the o ence, the upon it, its impact upon the con- temporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sen- tence is vacated, are matters which
| 302 | Major R.S. Budhwar v. Union Of India 1996 |
must enter into the verdict as to whether the sentence should be va- cated for the reseon that its execu- tion is delayed."
that such consideration cannot be divorced from the dastardly and di- abolic circumstance of the crime it- self. Having given our anxious con- sideration to all aspects of this case in the light of the above principles we feel that the appellants do not de- serve the extreme penalty of death, notwithstanding the fact that two of the murders, namely, that of the Commanding O cer and Second-in- Command were diabolically planned and committed in cold blood. From the record, particularly the confes- sions made by the two appellants which formed the principal basis for their conviction we nd that the ap- pellants did not commit the above two murders on their own volition prompted by any motive or greed much less, evincing total depravity and meanness. Indeed, it was the case of the respondents themselves at the GCM - which has been accepted by us also in the earlier appeal, that Major R.S. Budhwar alongwith other O cers of the Unit of the appel- lants instigated and compelled them to commit the above two murders by exploiting their religious feelings. The record further indicates that ini- tially the appellants declined to take any step towards the commission of the o ences but ultimately they suc- cumbed to the \threat, command and in uence" of their superiors. So far as the murders of the other two o cers are concerned we nd that they became the unfortunate victims
of circumstances as they happened to be present at the time of the incident. Another mitigating factor which in our opinion calls for commutation of the sentence is that Major Budhwar who alongwith another o cer (since dead) masterminded the two mur- ders were awarded life imprisonment whereas the appellants who carried out their orders have been sentenced to death. In dealing with this as- pect of the matter the High Court however observed, as noticed earlier, that the appellants committed the o ences while the o cers were only abettors. In our considered view in a case of the present nature which relates to a disciplined force as the Army, the o ence committed by the o cers who conceived the plan, was more heinous that of the appellants who executed the plan as per their orders and directions. It is of course true that those orders being not law- ful the appellants, even as disciplined soldiers, were not bound to com- ply with the same nor their carry- ing out such order minimised the of- fences but certainly this is a factor which cannot be ignored while decid- ing the question of sentence. Another factor which persuades us to com- mute the sentence is the post mur- der repentance of the appellants who not only surrendered before the au- thorities within two days but also spoke out the truth in their con- fessional statements. In fact, but for their confessional statements the O cers, who were the mastermini- mize, could not have been brought to book. None of the mitigating cir- cumstances, as noticed by us above, were taken into consideration by the
303
High Court. It was obliged to con- sider both the aggravating and the mitigating circumstances and there- fore by ignoring consideration of the mitigating circumstances, the High Court apparently fell in error.
For the foregoning discussion we allow those appeals and commute the sentence of death imposed upon each of the appellants to imprisonment for life, for the conviction recorded against them.
| 304 | Major R.S. Budhwar v. Union Of India 1996 |
Chapter 24
Anuj Kumar Dey & Anr v. Union Of India 1996
Anuj Kumar Dey & Anr v. Union Of India & Ors on 28 November, 1996 Author: Sen Bench: J Verma, S C Sen
PETITIONER:
ANUJ KUMAR DEY & ANR.
v. RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 28/11/1996
BENCH:
J.S. VERMA, SUHAS C. SEN
ACT:
HEADNOTE:
JUDGMENT:
(With Writ Petition (C) No. 831 of 1993 and Writ Petition (C) Nos. 293, 752 & 601 of 1994)
J U D G M E N T
SEN, J.
Anuj Kumar Dey, the appellant herein, joined Indian Navy as Arti - cer Apprentice on 12th August, 1971.
On 17th August, 1971 the statutory oath of allegiance was administered to him. He claims that his service in the Indian Navy must be calcu- lated from that date, that is, 17th August, 1971. ON 11th August, 1975 the appellant's training as Arti cer Apprentice was over. Immediately thereafter, he was advanced to Elec- trical Arti cer Vth Class on 12th August, 1975. Various promotions were given to the appellant there- after from time to time. On 31st January, 1988 the appellant was re- leased from the Nay. The dispute in this case is about the entitlement of the appellant to get pensionary ben- e ts for his service under the Navy. According to the appellant, he has served the Navy for more than fteen years which must be counted from 17th August, 1971 when he was ad- ministrated oath of allegiance. Ac- cording to the respondents, the four years spent by the appellant as' Arti-cer Apprentice was training period only and, therefore, the service of the appellant commenced only on 12th
| 306 | Anuj Kumar Dey & Anr v. Union Of India 1996 |
August, 1975 when he was appointed Electrical Arti cer Vth Class, after completion of his training as Arti - cer Apprentice on 11th August, 1975. The question is whether this period of four years, 17.8.71 to 11.8.75 dur- ing which the appellant was undergo- ing training as Arti cer Apprentice under the Navy, should be counted in the period of service rendered by the appellant. Before going into the merits of the case, it will be necessary to refer to the relevant provisions of the Navy Act, 1957 and also to some of the Regulations framed under the said Act:-
THE NAVY ACT, 1957
CHAPTER - I
PRELIMINARY
3. In this Act, unless the context otherwise requires:-
(16)`o cer' means a commis- sioned o cer and includes a subor- dinate o cer but does not include a petty o cer;
(17)`petty o cer' means a sailor rated as such and includes a chief petty o cer and a master chief petty o cer
(20) `sailor' means a person in the naval service other than an o cer;
CHAPTER - IV
COMMISSIONS, APPOINT- MENTS AND ENROLLMENTS
9.(1) No person who is not a citizen of India shall be eligible for appointment or enrolment in the In- dian Navy or the Indian Naval Re- serve Forces except with the consent of the Central Government:
10.(1) O cers other than sub-
ordinate o cers shall be appointed by commission granted by the Presi- dent.
(3) Subordinate o cers shall be appointed in such manner and shall hold such rank as may be prescribed.
11. (1) Save as otherwise pro- vided in this Act, the terms and con- ditions of service of sailors, the per- son authorised to enrol for service as sailors and the manner and proce- dure of such enrolment shall be such as may be prescribed.
(2)No person shall be enroled as
asailor in the India Navy for a period exceeding twenty years in the rst in- stance;
12.Where a person after his enrolment has for a period of three months from the date of such en- rolment been in receipt of pay as a sailor, he shall be deemed to have been duly enrolled and shall not thereafter be entitled to claim his discharge on the ground of any ir- regularity or illegality in his engage- ment or any other ground whatso- ever; and if within the said three months such person claims his dis- charge, no such irregularity or illegal- ity or other ground shall, until such person is discharged in pursuance of his claim e ect his position as a sailor in the naval service or invalidate any proceedings, act or thing taken or done prior to his discharge.
13.Every o cer and every sailor shall, as soon as may be, after ap- pointment or enrolment make and subscribe before the commanding of-cer of the ship to which he belongs, or the prescribed o cer on oath or af-
307
rmation in the following form that is to say:-
I........... do swear in the name of God/solemnly a rm that I will bear true faith and allegiance to the Constitution of India as by law es- tablished and that I will, as in duty bound, honestly and faithfully serve in the naval service and go wherever ordered by sea, land or air, and that I will observed and obey all commands of the President and the commands of any superior o cer set over me, even to the paril of my life".
14.Liability for service of o - cers and sailors-(1) Subject to the provision of sub-section (4), o cers and sailors shall be liable to serve in the Indian Navy or the Indian Naval Reserve Forces, as the case may be, until they are duly discharged, dis- missed, dismissed with disgrace, re- tired, permitted to resign, or re- leased.
15.Tenure of service of o - cers and sailors.-(1) Every o cer and sailor shall hold o ce during the pleasure of the President.
16.Discharge on expiry of en- gagement. Subject to the provisions of Section 18, a sailor shall be enti- tled to be discharged at the expira- tion of the term of service for which he is engaged unless-
17.(1) A sailor entitled to he discharged under section 16 shall be discharged with all convenient speed and in any case within one month of his becoming so entitled:
(4) Every sailor who is dismissed, discharged, retired, permitted to re- sign or released from service shall
be furnished by the prescribed o - cer with a certi cate in the language which is the mother tongue of such sailor and also in the English lan- guage sating forth-
(a)the authority terminating his service;
(b)the cause for such termina-
tion;
and
(c) the full period of his service in the Indian Navy and the Indian Naval Reserve Forces.
Apart from the aforesaid provi- sions of the Navy Act, by Section 184 the Central Government has been empowered to make regulations in re- spect of, inter alia, \the terms and conditions of service, the pay, the pensions, allowances and other ben- e ts of persons in the naval service, including special provision in this be- half during active service". In exer- cise of this power, the Central Gov- ernment has framed the regulations called \the Navy (Pension) Regula- tions, 1964", \Service in the Indian Navy." Chapter III of the Regu- lations deals with Sailors. In this Chapter, Regulation 69(2) deals with Service Pension and Gratuity of the Sailors. Regulation 78 lays down, \Unless otherwise provided, the min- imum service which quali es for ser- vice pension is fteen years." Reg- ulation 79 is important for the pur- pose of this case and lays down.\All service from the date of enrolment or advancement to the rank of ordinary sea-man or equivalent to the date of discharge shall qualify for pension or gratuity". Regulation 261 deals with
| 308 | Anuj Kumar Dey & Anr v. Union Of India 1996 |
recruitment and provides:-
"261. RECRUITMENT - (1) The Chief of Naval Sta may recruit sailors required for the service.
(2) recruitment of sailors shall be made through boy entry, arti cer ap- prentice entry and direct entry as necessary. The recruitment shall be carried out by the Recruitment Or- ganisation established for the pur- pose and by any other authority as may be decided upon by the Chief of the Naval Sta from time to time. Persons authorised to enrol sailors, the manner, procedure and terms and conditions of enrolment shall be as laid down in the appropriate Reg- ulations."
Regulations 290 and 291 are also important for the purpose of this case and are as under:-
\290. AWARD OF GOOD CON- DUCT BADGE -
GOOD CONDUCT BADGE shall not be awarded or restored as a matter of course merely because a man has avoided serious punish- ments. If the Captain is satis ed that a man is fully quali ed in accordance with regulations 291 to 293 and sub- regulation (1) of regulation 294 and is deserving of the award a badge shall be conferred, when due, under provisions of this regulation. The maximum number of bedges that a sailor may earn during his service shall be three.
291. SERVICE QUALIFICA- TION - (1) Before a sailor can be considered for the award of a Good Conduct Badge, he must have com- pleted the following periods:
For 1st Good Conduct Badge ...
4 years.
For 2nd Good Conduct Badge ...
8 years.
for 3rd Good Conduct Badge ...
12 years."
The rst question in this case is whether the appellant can be re- garded as a \Sailor". The argument on behalf of the respondents has been that the appellant was undergoing training as an Arti cer Apprentice. He could not be treated as a Sailor during this period of training. It was only when he was advanced to Elec- trical Arti cer Vth Class after com- pletion of his training that he became a Sailor.
Various provisions of this Act and the regulations set out hereinabove, do not support this contention. The de nition of `sailor', as given in Sec- tion 3(20), is of wide amplitude and means \person in the naval service other than an o cer". The provi- sions of Sections 9, 10 and 11 of the Act go to show that an o cer, who is not a subordinate o cer, is `ap- pointed' by commission granted by the President. Subordinate o cers may be `appointed' in the prescribed manner, but the sailors are `enrolled' in the Navy. The Chapter Heading is Commissions. Appointments and Enrollments. Section 13 lays down that every o cer and every sailor shall, as soon as may be possible af- ter appointment or enrolment, make and subscribe an oath on a rmation in the prescribed form.
These statutory provisions go to show that a person can join Indian
309
Navy as an o cer or a sailor. An o cer and a petty o cer have been de ned in subsections (16) and (17) of Section 3 and any person who is other than an o cer and is in naval service has been de ned as a sailor. The appellant was not an o cer. He had joined Indian Navy and imme- diately after his enrolment he was made to take oath which every of-cer and every sailor under Section 13 is bound to take. Moreover, Reg- ulation 261 clearly lays down that recruitment of sailors shall be made through boy entry, arti cer appren- tice entry and direct entry as o cer. Therefore, the fact that the appellant was enrolled as an Arti cer Appren- tice, does not in any way go to show that he was not a sailor and was not serving the Navy as a sailor. Sec- tion 12 lays down that where a per- son after his enrolment has for a pe- riod of three months from the date of such enrolment been in receipt of pay as Sailor, he shall be deemed to have been duly enrolled. Now, there is no dispute that the appellant had received pay regularly after his enrol- ment. It has been contended on be- half of the respondents that the ap- pellant was allowed an allowance dur- ing the term of the training. The case of the appellant is that he used to get a xed pay during the period of the training. The fact that he used to get a xed pay does not go to show that he did not receive pay regularly after his enrolment.
The position becomes even clearer if a reference is made to Sec- tion 13 which provides that every o cer and every Sailor shall as soon
as may be after the appointment or enrolment make and subscribe an oath or a rmation in the prescribed form. This is something which only an o cer or a Sailor is required to do. There is no dispute that the ap- pellant was administered oath. This could only be done under the Act if he was either an o cer or a Sailor. If the contention of the respondents that the appellant was not even a \Sailor" during the period of train- ing, then it has not been explained why he was administered oath. The next objection was that even if the appellant could be treated as a sailor, he could not be said to have been in the service of the Navy during the period of training. This argument is also unacceptable in the facts of the case and in view of the provisions of the Act and the Regulations. In the prescribed form of oath that was administered to the appellant, he had to swear \.......I will, as in duty bound, honestly and faithfully serve in the naval service ..........". It is clear that the appellant was enrolled as a Sailor, took oath as a Sailor and drew salary as a Sailor and was in the service of the Navy as a Sailor during the period of undergoing training as Arti cer Apprentice. The qualifying period for earning pension is service of 15 years under the Navy. having regard to the facts of the case and the documents annexed to the ap- peal, there is little doubt that the training period as Arti cer Appren- tice will have to be included in the computation of the qualifying period of service. Regulation 79 lays down that all service from the date of en- rolment or advancement to the rank
| 310 | Anuj Kumar Dey & Anr v. Union Of India 1996 |
of ordinary sea-man or equivalent to the date of discharge shall qualify for pension or gratuity. Therefore, the date of advancement is not the only starting point for computation of the qualifying period of service. In the case of the appellant the date of enrolment should be the material date. He was administered oath as a Sailor even before the date of his advancement to the rank of Electri- cal Arti cer Vth Class. In fact, the Discharge Certi cate issued by the Navy to the appellant is to the fol- lowing e ect ad puts the matter be- yond any doubt:- \This is to certify that ANUJ KUMAR DEY, CHIEF ELECTRICAL ARTIFICER (AIR), NO. 052264-H has served in the In- dian Navy from 12 AUGUST 1971 to 31ST JANUARY, 1988 as per details overleaf."
This is a statutory certi cate which has to be given under sub- section (4) of Section 17 of the Navy Act. The discharge Certi cate must state the full period of service in the Indian Navy. According to the calcu- lation made by the Navy itself, this period of service is more than the qualifying period of 15 years.
Not only that. In the details that had been given along with the Discharge Certi cate, it has been mentioned that \Joined on 12th Au- gust, 1971. released on 31st Jan- uary, 1988." The Date of Attesta- tion in the Indian Navy is given as \17th August, 1971 (Oath of alle- giance taken)". This is a certi cate given by the Indian Navy in accor- dance with requirement of Section 17.
There is another document de- scribed as \Certi cate of the Ser- vice" where Period of Engagement has been shown as twelve years (from 16.8.75 to 15.8.1985 and from 16.8.85 to 31.1.1988). On behalf of the re- spondents, strong reliance has been placed on this document. However, this document does not say that the appellant was in service for twelve years only. This is an entry in a column headed \Period of engage- ment". In fact, in the very next page of that document, details of the ser- vice of the appellant and Substantive Rank held by him have given. There, it has been shown that the appel- lant was serving in the ship \VAL- SURA" in the Substantive Rank Art. (App) from 12th August, 1971 to 27th November, 1973. It has also been recorded in that document that the oath of allegiance was taken on 18th August, 1971. In the column headed \Good Conduct Badges", it has been shown that the appellant was awarded Good Conduct Badges in August, 1975, August, 1979 and August, 1983. That document was given to show \Character and E - ciency on 31st December yearly, onnal discharge and other occasions prescribed by regulation". It ap- pears that in the yearly column on and from 31st December, 1971 to 31st December, 1988 (the date of dis- charge), every year the appellant's character has been certi ed as V.G. (Very Good). Under Regulation 291, these badges can be awarded only after completion of four years ( rst badge). 8 years (second badge) and 12 years (third badge) of service. It has been laid down under Regulation
311
290 that \the maximum number of badges that a sailor may earn during his service shall be three".
All these facts and the various provisions of the Act and the Regu- lations leave no room for doubt that the appellant even during the period he was working as Arti cer Appren- tice was in the service of the Navy, was given Good Conduct Badges for this service and four years' service was counted from the year 1971. The Discharge Certi cate which is a statutory document clearly records that he has served in the Indian Navy from 12th August, 1971 to 31st January, 1988. The respondents af- ter granting all these certi cates and badges, cannot be heard to say that the appellant had not put in the qualifying period of service of fteen years and, therefore, was not enti- tled to get pension. Our attention
was drawn to a judgment of Andhra Pradesh High Court in the case of H.S. Sarkar v. Union of India & Ors. 1994 (2) An W.R. 221, where it was held that \it does not stand to reason that when the training period of four years is reckoned for the purpose of computation of 15 years for retiring a person., the same is not reckoned for the purpose of pension........ Pay- ment of only a consolidated pay dur- ing the training period and not reg- ular scale of pay is immaterial in so far as the computation of the period is concerned".
We are of the view that the Di- vision Bench of the High Court was in error in holding that the period of four years when the appellant was employed Arti cer Apprentice could not be counted for computation of the qualifying period of pension.
| 312 | Anuj Kumar Dey & Anr v. Union Of India 1996 |
Chapter 25
Union Of India And Others v. Major A. Hussain 1997)
Union Of India And Others v. Major A. Hussain, IC-14827 on 8 De- cember, 1997 Author: D Wadhwa. Bench: S V Manohar, D Wadhwa
PETITIONER:
UNION OF INDIA AND OTH- ERS
v.
RESPONDENT:
MAJOR A. HUSSAIN, IC-14827
DATE OF JUDGMENT: 08/12/1997
BENCH:
SUJATA V. MANOHAR, D.P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
D.P. Wadhwa. J.
Appellants are aggrieved by the judgment dated February 21, 1994 of the Division Bench of the High Court of Judicature: Andhra Pradesh dis-
missing their appeal against judg- ment date April 25, 1991 of the learned single Judge of that High Court whereby the learned single
| Judge | allowed writ | petition led | ||
| by | the | respondent | and | quashed |
the court martial proceedings held against him including the con rma- tion of sentence passed upon him by the court martial.
A General Court Marital (GCM) under the Army Act, 1950 (for short 'the Act') was convened to try the re- spondent holding the rank of Major in the army on the following charge:
\Charge Sheet"
The accused IC-14827F Major Arshad Hussain, 225 Ground Liaison Section Type 'C' attached to AOC Centare, an o cer holding a per- manent commission in the Regular Army, is charged with :-
Army Act AN ACT PREJUDI-
CIAL TO GOOD ORDER AND
MILITARY Section 63' DISCI-
PLINE,
314 Union Of India And Others v. Major A. Hussain 1997)
in that he,
at Field, between 17 Sep 84 Ground Liaison Section Type 'C', lost by neglect twelve (12) pages of the Commander's Operational Brief taken on charge at Serial 115 on the Incoming TOP SECRET Regis- ter of HW 150 Inf Bde which were en- trusted to in for safe custody. Place: Secunderabad Sd/-
Date: 14 Aug 87 (Gautam Mitra
)
Brig
Commandant
AOC Center
To be tried by General Court Martial. Station: Madras - 9 Sd/-
Dated: 25 Aug 87 (Deepak Se- hdev) Colonel
Colonel A
For General O cer Commanding
Andhra Tamil Nadu Karnataka
and Kerala Area.
Section 63 of the Act reads as un- der; \63. Any person subject to that Act who is guilty of any or omis- sion which, though not speci ed in this act, is prejudicial to good order and military discipline shall, on con- viction by court martial, be liable to su er imprisonment for a term which may extend to seven years or such less punishment as is in this Act men- tioned."
After conclusion of the GCM pro- ceedings the respondent was held guilty of the charge and was sen- tenced to be dismissed from service by order dated December 26, 1987 of the General Court Martial. The sen-
tence passed against the respondent was con rmed by the con rming au- thority as required under the Act.
The respondent challenged his conviction and sentence in a writ pe- tition led by him in the High Court which, as noted above, allowed the same and quashed the court martial proceedings and con rmation of sen- tence against the respondent. The ground which appealed to the High Court in setting aside the court mar- tial proceedings and subsequent con-rmation of sentence may be stated from the judgment of the of the sin- gle Judge which is as under:
\The Petitioner has been denied a reasonable opportunity to defend himself by not communicating the conclusion reached in Rule 22 In- quiry as contemplated by Army Or- der 70/84. In the proceedings un- der Section 22 by not supplying the copies of statements in earlier court of Inquiry: (i) during General Court Martial by not giving assistance of a defending o cer of his choice; (ii) not providing him load which was al- ready sanctioned to manage a new counsel as the earlier counsel engaged by him had retired for no fault of the petitioner; (iii) by not provid- ing him the documents for which he had made a request to the conven- ing authority long before assembly of the Court Martial and for which his counsel had also made a request."
Now to understand if the High Court rightly exercised its power of judicial review of the court mar- tial proceedings, we may refer to a few relevant facts and brie y to the court martial proceedings. In the
315
year 1984 respondent was serving as Ground liaison O cer in a Brigade which was situated somewhere in Ra- jasthan in close proximity of inter- national border with Pakistan. One Major P.C.Bakshi was also posted a Brigade Major in that Brigade. Brig. A.S. Bains was the comman- der of the Brigade. Major Bakshi was on annual leave with e ect from 17.9.84 to 16.11.84 but before pro- ceeding on leave he handed over cer- tain classi ed documents to the re- spondent. Under provisions of Hand- ing of Classi ed documents, the se- cret/top secret documents are to be in safe custody of an o cer not be- low the rank of Major. Accordingly, Brig. Bains ordered the respondent to take charge of classi ed documents from Major Bakshi which classi ed documents the respondent took over charge and duly signed the hand- ing/taking over of these documents by signing a certi cate to that e ect. When Major Bakshi rejoined from his annual leave, he was required to take back the charge of classi ed doc- uments from the respondent. When handing/taking over was commenced it was discovered that 12 pages of \Top Secret" documents were miss- ing. A detailed search was carried out but the documents could not be traced and a report of this fact was communicated to all concerned in ac- cordance with laid procedure. Ma- jor Bakshi declined to take charge and under orders of Brig. Bains the charge of the documents was ordered to be handed over to one Major D.K. Sharma, Deputy Assistant and Quar- ter Master General in the Brigade, which he did. it is stated that these
\Top Secret" documents contained vital information adversely a ecting the security of the country as these documents re ected deployment of troops along the international bor- der with Pakistan. In accordance with Army Rules 1954 framed under Section 191 of the Act \sta court of inquiry" was ordered under Rule 177 to investigate the loss, apportion blame and to suggest remedial mea- sures to prevent such loss occurring in future but the court of injury, how- ever, failed to give any de nite nd- ings. Additional court of inquiry was ordered which examined additional witness. Appellants submitted that respondent was a orded full oppor- tunity to be present throughout the proceedings in the court of inquiry in accordance with Army Rule 180 and for submitting anything in his defence. The Court of Inquiry appor- tioned blame on the respondent and it was recommended to initiate disci- plinary proceedings against him.
In accordance with Rule 22(1) of the Army Rules read with Army Order No. 70/84 respondent was brought before the Commanding Of-cer on April 8, 1985 and hearing of the charge was conducted in the presence of Major. D.K. Sharma. Summary of Evidence was recorded by Lt. Col. B. P. Singh from April 15, 1985 onwards in which the respondent participated. He cross-examined witnesses during the recording of Summary of Evidence. The respondent did not complain about the non-supply of the Court of Inquiry proceedings which were pro- vided to him before the commence-
316 Union Of India And Others v. Major A. Hussain 1997)
| ment of the General Court Martial | High Court in that writ petition | ||||||
| in accordance with Army Rule 184. | in any detail, except to note that | ||||||
| The Commanding O cer of the | Court Martial proceeding was inter- | ||||||
| respondent requested the trial of the | rupted though ultimately the stay | ||||||
| respondent by General Court Mar- | ranted by the High Court was va- | ||||||
| tial which was approved by the con- | cated. | The General Court Martial | |||||
| vening authority. | The respondent | assembled on September 14, 1987 | |||||
| was informed that he would be tried | and on being arraigned the respon- | ||||||
| by General Court Martial and was | dent pleaded \not guilty" to the | ||||||
| advised to submit a list of defence | charge. | Thereafter | General Court | ||||
| witnesses as well | as | his choice | for | Martial was adjourned. | |||
| a defending o cer. | The respon- | For the purpose of recording of | |||||
| dent instead proceeded on leave for | evidence, General Court Martial re- | ||||||
| sixty days with e ect from 10.6.85 | sembled on November 30, 1987. In | ||||||
| to 8.8.85 which was granted. He did | the absence of the Judge advocate, it | ||||||
| not rejoin his duty and instead got | was adjourned to the following day. | ||||||
| himself admitted in Military Hospi- | On December 1, 1987, the record | ||||||
| tal in Secunderabad which the appel- | shows that defending o cer stated | ||||||
| lants contend was to avoid the trial | that full facilities in accordance with | ||||||
| by General Court Martial. The ap- | the Army Act, Army Rules and | ||||||
| pellants complain that the respon- | Regulations for the Army had been | ||||||
| dent adopted tactics to delay the | a orded to the respondent in the | ||||||
| commencement of the General Court | preparation of his defence and that | ||||||
| Martial. He led a writ petition (No. | the respondent had also been given | ||||||
| 17828/86) in the Andhra Pradesh | full opportunity to consult and con- | ||||||
| High Court at Hyderabad. The High | fer with him as also his defence coun- | ||||||
| Court by order dated August 3,1987 | sel. The respondent had engaged the | ||||||
| directed the appellants to post the | services of a civilian defence counsel | ||||||
| respondent | at Secunderabad. | Re- | the respondent was given an advance | ||||
| spondent was thus attached to AOC | of Rs. 10,000/- on his request by the | ||||||
| Center at Secunderbad. He was sup- | Army authorities. | The Court also | |||||
| plied with copy of the chargesheet, | recorded submission of the defence | ||||||
| copy of the Court of Inquiry pro- | counsel that all papers pertaining to | ||||||
| ceeding and summary of evidence. | preparation of defence of the respon- | ||||||
| He was also informed that General | dent as requested earlier on August | ||||||
| Court martial was likely to be con- | 24, 1987 and of which reminder was | ||||||
| vened by August 28, 1987. | The | also sent on November 26, 1987 be | |||||
| respondent again moved the High | made available to the defence coun- | ||||||
| Court by ling another writ peti- | sel for proper conduct of the defence | ||||||
| tion (No. | 12561/87) | and obtained | of the case. During the course of | ||||
| an order staying the General Court | the proceedings, it was submitted by | ||||||
| Martial proceeding. It is not neces- | the defence counsel that a copy of | ||||||
| sary to refer to proceedings in the | the Summary of Evidence recorded | ||||||
317
against the respondent, a copy of the court of enquiry proceedings and a copy of the additional court of en- quiry proceedings had been received by the respondent in due time an that he had no grievance to that ex- tent. He, however, submitted that there were some other documents which had not been made available to the respondent and as a result he was unable to conduct the defence case e ectively. Proceedings of the court martial, however, show that whatever documents the respondent had asked for, he was given opportu- nity to inspect the same and in spite of the documents being made avail- able to the respondent and his de- fence counsel, no attempt was made to inspect the same. We nd that most of the documents which the re- spondent had asked for were quite irrelevant to the proceedings. Dur- ing the course of the proceedings of the Court martial, respondent had submitted certain applications which were duly considered by the Gen- eral Court Martial and orders passed. We nd that full opportunity was granted to the respondent to conduct his case and proceedings could not be more fair. However, request of the defence counsel for a long ad- journment wad declined. His sub- mission that the court martial pro- ceedings were being conducted with great haste had no basis. On one day only one witness was being exam- ined and his cross-examination was being deferred at a request of the de- fence counsel himself. Court Martial was convinced for the trial of the re- spondent. It was not a regular court in the sense that where many cases
are xed and adjournments granted. Under Army Rule 82, when a court is once assembled and the accused has been arraigned, the court shall continue the trial from day-to-day in accordance with Rule 81 unless it appears to the court that an ad- journment was necessary for the ends of justice or that such continuance is impracticable. That the defence counsel had other case to attend to would hardly be a ground to adjourn the court martial. At one stage in midst of the case, the defence coun- sel withdrew. Grievance of the re- spondent that since further advance of Rs. 15,000/- was not given to him to engage another defence coun- sel, he could not e ectively defend his case found favour with the High Court. The High Court, however, failed to take notice of the fact that the respondent was not entitled to any advance for the purpose of en- gaging the defence counsel and ear- lier as a special case an advance of Rs.10,000/- had been sanctioned. No Rule or Army Instruction has been shown under which the respondent was entitled to an advance. The respondent refused to cross-examine the witnesses on the specious ground that services of defence counsel were not made available to him due to paucity of funds. We noted that during the curse of enquiry proceed- ings, the respondent himself exten- sively cross-examined the witnesses. It is not therefore possible to ac- cept the submission of the respon- dent that due to lack of funds he could not engage the services of a de- fence counsel particularly when dur- ing the course of court martial pro-
318 Union Of India And Others v. Major A. Hussain 1997)
ceedings, he knocked the doors of the High Court thrice.
On being asked by the convening o cer respondent had given names of three o cers one of whim he wanted to be his defending o cer. A de- fending o cer is to be provided to the respondent in terms of the Army Rule 95. The services of none of the named o cers could be provided to the respondent due to exigency of services and particularly when the of-cers belonged to the Judge Advo- cate General branch and were not available. The names of the o cers which the respondent gave were (1) Maj. Gen. A.B. Gorthi, (2) Brig. Mohinder Krishan and (3) Lt. Col. R.P. Singh. It was submitted be- fore us that though there is no bar in the Rules to provide the services of an o cer of the JAG Branch as a defending o cer but as a general policy it is not done. That would appear to be a sound policy con- sidering the nature of functions and duties of an o cer of JAG Branch when appointed to a court martial as hereinafter mentioned. Moreover we nd that General Court martial was presided over by an o cer of the rank of Colonel. The respondent was asked to give the name of any other o cer to be appointed as his de- fending o cer but he declined to do so. The appellants provided the ser- vices of three defending o cers one after the other but the respondent declined to avail of their services and did not give them right of audience. All the three o cers were of the rank of lieutenant Colonel and two of them were experienced and were
legally quali ed. prosecution exam- ined Six witness including Major. P.C. Bakshi, Lieutenant colonel A.K. Sharma and Brigadier A.S. Bains and also brought on record various documents. The respondent was also examined by the Court. In the ab- sence of any cross-examination by the respondent, the court itself put several questions to the witnesses in the nature of cross-examination.
At this stage we may refer to the relevant provisions of law. Section 1 of Chapter V of the Army Rules deals with investigation of charges. Un- der Rule 22 every charge against a person subject to the Act other than an o cer shall be heard in the pres- ence of the accused who shall have the full liberty to cross-examine any witness against him and to call any witnesses and make any statement in his defence. The commanding o - cer shall dismiss the cargo brought before him if, in his opinion, the evidence does not show that an of- fence under the Act has been com- mitted. However, if he is of the opin- ion that the charge ought to be pro- ceeded with, he has four options, one of which is to adjourn the case for the purposes of having the evidence re- duced to writing. Under Rule 23 pro- cedure is prescribed for taking down the summary of evidence and state- ment taken down in writing shall ei- ther remand the accused for trial by court martial and in that case apply to the proper military authority to convene a court martial. Under Rule 25 where an o cer is charged with an o ence under the Act, the investiga- tion shall, if he requires it, be held,
| 319 | |||||||||
| charge at this stage is a 'Tentative' | |||||||||
| and the evidence, if he so requires, | |||||||||
| be taken in his presence in writing, | charge which may be modi ed af- | ||||||||
| in the same manner as nearly as cir- | ter the hearing or during the pro- | ||||||||
| cumstances admit, as is required by | cedure as described in Army Rule | ||||||||
| Rules 22 and 23 in the case of other | 22 (3) (c) or during examination af- | ||||||||
| persons subject to the Act . Army | ter completion of the procedure un- | ||||||||
| Order No. | 70/84 which deals with | der Army Rule 22(3) (c), depending | |||||||
| hearing of a charge by the command- | on the evidence adduced. | Further, | |||||||
| ing o cer may be set out as under : | as long as the Commanding O cer | ||||||||
| \AO 70/84 Discipline: Hearing of a | hears su cient evidence in support | ||||||||
| Charge by the commanding O cer. | of the charge | ||||||||
| 1. | Discipline process under the | (s) to enable him to take ac- | |||||||
| Military law commences with Army | tion under sub-rules (2) and (3) of | ||||||||
| Rule 22 which lays down that ev- | Army Rule 22, it is not necessary at | ||||||||
| ery charge against a person subject | this stage to hear all possible pros- | ||||||||
| to the | Army Act, other | than | an | ecution witnesses. | As a | matter of | |||
| o cer, shall be heard in the pres- | abundant caution it would be desir- | ||||||||
| ence of accused. | The accused shall | able to have one or two independent | |||||||
| have full liberty to cross- examine | witnesses during the hearing of the | ||||||||
| any witness against him. | This is a | charge(s). | |||||||
| mandatory requirement and its non- | 4. After the procedure laid down | ||||||||
| observance will vitiate any subse- | |||||||||
| in Army Rule 22 has been duly fol- | |||||||||
| quent | disciplinary proceedings. | In | lowed, other steps as provided in | ||||||
| the case of o cers, the rule becomes | Army rules 23 to 25, shall be followed | ||||||||
| equally mandatory if the accused of- | both in letter and spirit. It may be | ||||||||
| cer requires its observance under | clari ed that the statutory require- | ||||||||
| Army Rule 25. | ments of Army Rules 22 to 25 can- | ||||||||
| 2. | It is, therefore, incumbent on | not dispensed with simply because | |||||||
| all Commanding O cers proceeding | the case had earlier been investigated | ||||||||
| to deal with a disciplinary case to | by a court of Inquiry where the ac- | ||||||||
| ensue that \Hearing of Charge" en- | cused person (s) might have been af- | ||||||||
| joined by Army Rule 22 is scrupu- | forded full opportunity under Army | ||||||||
| lously held in each and every case | Rule 180." | ||||||||
| where the accused is a person other | Army Rules 180 and 184 which | ||||||||
| than an o cer and also in case of | |||||||||
| fall in chapter VI of Army Rules re- | |||||||||
| an o cer, if he is so requires it. | In | lating to Courts of Inquiry are as un- | |||||||
| case an accused o cer does not re- | der : \180. Procedure when charac- | ||||||||
| quire \Hearing of the Charge " to | ter of a person subject to the Act is | ||||||||
| be held, the Commanding O cer | involved.- Save in the case of a pris- | ||||||||
| may, at his discretion, proceed as de- | oner of war who is still absent, when- | ||||||||
| scribed in Army Rule 22(2) or Army | ever any inquiry a ects the charac- | ||||||||
| Rule 22(3). | ter or military reputation of a person | ||||||||
| 3. | It may be clari ed that the | subject to the Act, full opportunity | |||||||
320 Union Of India And Others v. Major A. Hussain 1997)
must be a orded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross-examining any witness whose evidence, in his opinion, a ects his character or mil- itary reputation and producing any witnesses in defence of his charac- ter or military reputation. The pre- siding o cer of the Court shall take such steps as may be necessary to en- sure that any such person so a ected and not previously noti ed, receives notice of and fully understands his rights, under this rule 184. Right of certain persons to copies of state- ments an documents:-
(1)any person subject to the Act who is tried by a court martial shall be entitled to copies of such state- ments and documents contained in the proceedings of a court of Inquiry, as are relevant to his prosecution or defence at his trial.
(2)Any person subject to the Act whose character or military reputa- tion is a ected by the evidence be- fore a court of Inquiry shall be en- titled to copies of such statements and documents as have a bearing on his character or military reputation as aforesaid, unless the Chief of the Army Sta for reasons recorded by him writing, orders otherwise."
Present Rule 184 was substituted by SRO 44 dated January 24, 1985 and prior to its substitution Rule 184 reads as under:
\184. Right of certain persons to copies of proceedings.- The following persons shall be entitled to a copy
of the proceedings of a court o in- quiry including any report made by the court on payment for the same of a sum not exceeding eight annas for every two hundred words:-
(a)any person subject to the Act, who is tried by a court martial in re- spect of any matter or thing which has been reported on by a court of inquiry, or
(b)any person subject to the Act, whose character or military reputa- tion is, in the opinion of the Chief of Army Sta a ected by anything in the evidence before, or in the report of a court of inquiry, unless the Chief of the Army Sta sees reason to order otherwise."
Under Rule 95 in any General Court Martial an accused person may be represented by any o cer subject to the Act who shall be called \the defending o cer". Sub-rule (2) of Rule 95 Casts duty on the conven- ing o cer to ascertain whether the accused person desires to have a de- fending o cer assigned to represent him and if he does so desire, the con- vening o cer shall use his best en- deavors to ensure that the accused shall be so represented by a suitable o cer. This sub-rule (2) is as under:
\(2) It shall be the duty of the convening o cer to ascertain whether an accused person desires to have a defending o cer assigned to represent him at his trial and, if he does so desire, the convening of-cer shall use his best endeavors to ensure that the accused shall be so represented by a suitable o cer. If owning to military exigencies, or for
321
any other reason, there shall in the opinion of the convening o cer be no such o cer available for the pur- pose, the convening o cer shall give a written notice to the presiding of-cer of the Court Martial, and such notice shall be attached to the pro- ceedings."
Under Rule 96 a civil coun- sel can also be allowed in General Court Martial to represent the ac- cused subject to his being allowed but he convening o cer which in the present case was done and the ac- cused was represented by a counsel of his choice.
Judge Advocate administers path to the members of t he court martial (Rule 47) and he himself be sworn as per the forms prescribed (Rule 46). It is he who sums up in an open court the evidence and advise the court upon the law relating to the case. If we refer to Rule 105 we ne the pow- ers and duties of the judge advocate. This rule is as under:
\105. Powers and duties of judge advocate.- The powers and duties of judge advocate are as follows:-
(1)The prosecutor and the ac- cused, respectively, are at all times after the judge advocate is named to act on the Court, entitled to his opin- ion on any question of law relative to the charge or trial whether he is in or out of Court, subject, when he is in Court to the permission of the Court.
(2)At a Court Martial, he repre- sents the Judge Advocate General.
(3)He is responsible for inform- ing the Court of any informality or irregularity in the proceedings.
Whether consulted or not, he shall inform the convening o cer and the court of any informality or defect in charge, or in the constitution of the Court, and shall give his advice on any matter before the Court.
(4)Any information or advice given to the Court, on any matter before the Court shall, if he or the Court desires it, be entered in the proceedings.
(5)At the conclusion of the case, he shall sum up the evidence and give his opinion upon the legal bearing of the case, before the Court proceeds to deliberate upon its nding.
(6)The Court, n following the opinion of the judge advocate on a legal point, may record that it has decided in consequence of that opin- ion.
(7)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 consequence of his position as such, or if 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 witnesses which appear to him nec- essary or desirable to elicit the truth.
(8)In ful lling his duties, he judge advocate must be careful to maintain and entirely impartial po- sition."
No fault could be found with the recording of summary evidence. Re- spondent has been unable to show if there was any non-compliance with the provisions of Rules 22, 23 and
322 Union Of India And Others v. Major A. Hussain 1997)
24 and Army Order No. 70/84. We have been referred to two decisions of the Supreme Court in Lt. Col. Prithi Pal Singh Bedi v. Union of In- dia and Ors. [(1982) 3 SCC 140] and Major G.S. Sodhi v. Union of India [ (1991) 2 SCC 382] laying the scope of the provisions regarding record- ing of summary of evidence. In G.S. Sodhi's case this Court with refer- ence to Rules 22 to 25 said that pro- cedural defects, less those were vital and substantial, would not a ect the trial. The Court, in the case before it, said that the accused had duly participated in the proceedings re- garding recording of summary of evi- dence and that there was no agrant violation of any procedure or provi- sion causing prejudice to the accused.
Provisions of Rules 180 and 184 had been complied. Rule 184 does to postulate that an accused is entitled to a copy of the report of court of in- quiry. Proceedings before a court of inquiry are not adversarial proceed- ings and is also not a part of pre- trial investigation. In Major General Inder Jit Kumar v. Union of India & Ors. [(1997) 9 SCC 1] this Court has held that the Court of Inquiry is in the nature of a fact- nding en- quiry committee. The appellant in that case had contended that a copy of the report of the Court o Inquiry was not given to him and the had vi- tiated the entire court martial. He had relied upon Rule 184 in this con- nection. With reference to Rule 184, the Court said that there was no pro- vision for supplying the accused with a copy of the report of the Court of Inquiry. This Court considered
the judgment in Major G.S. Sodhi's case and observed that supply of a copy of the report of enquiry to the accused was not necessary because proceedings of the court of enquiry were in the nature of preliminary en- quiry and further that rules of nat- ural justice were not applicable dur- ing the proceedings of the court of enquiry though adequate protection was given by Rule 180. This Court also said that under Rule 177, a court of inquiry can be set up to collect ev- idence and to report, if so required, with regard to any matter which may be referred to it. Rule 177, therefore, does not mandate that a court of in- quiry must invariably be set up in each and every case prior to record- ing of summary of evidence or con- vening of a court martial.
As noted above, when none of the three o cers who were all from JAG Branch could be made available to the respondent as defending o cer he was asked to give the name of any o cer who could be deputed his de- fending o cer. It is not the case of the respondent that the convening of-cer did not use his best endeavor to ensure that the respondent was represented by a suitable defending o cer. It was the respondent him- self who declined to give any other name. Nevertheless the convening of-cer did depute three o cers one af- ter the other to represent as defend- ing o cer for the respondent. But the respondent declined to avail their services.
We may also refer to Rule 149 which lays down that a Court Mar- tial would not be held to be invalid
323
even if there was an irregular pro- cedure where no injustice was done. This Rule is as under:
\Validity of irregular procedure in certain cases - Whenever it ap- pears that a court martial had juris- diction to try any person and make a nding and that there is legal ev- idence or a plea of guilty to jus- tify such nding, such nding and any sentence which the court mar- tial had jurisdiction to ass thereon may be con rmed, and shall, if so con rmed and in the case of a sum- mary court martial where con r- mation is not necessary, be valid, notwithstanding any deviation from these rules or notwithstanding that the charge-sheet has not been signed by the commanding o cer or the convening o cer, provided that the charges have, in fact, before trial been approved by the commanding o cer and the convening o cer or notwithstanding any defect or ob- jection, technical or other, unless it appears that any injustice has been done to the o ender, and where anynding and sentence are otherwise valid they shall not be invalid by rea- son only of a failure to administer an path or a rmation to the interpreter or shorthand writer; but nothing in this rule shall relieve an o cer from any responsibility for any willful or negligent disregard of any of these rules."
We nd the proceedings of the General Court Martial to be quite immaculate where trial was fair and every possible opportunity was af- forded to the respondent to defend his case. Rather it would appear that
the respondent made all e orts to de- lay the proceedings of the court mar- tial. Thrice he sought the interven- tion of the High Court. Withdrawal of the defence counsel in the midst of the proceedings was perhaps also a part of plan to delay the proceed- ings and to make that a ground if the respondent was ultimately con- victed and sentenced. Services of quali ed defending o cer was made available to the respondent to de- fend his case, but he had rejected their services without valid reasons. He was repeatedly asked to give the names of the defending o cers of his choice but he declined to do so. The court martial had been conducted in accordance with the Act and Rules and it is di cult to nd any fault in the proceedings. The Division Bench said that the learned single Judge minutely examined the record of the court martial proceedings and after that came to the conclusion that the respondent was denied rea- sonable opportunity to defend him- self. We think this was fundamen- tal mistake committed by the High Court. It was not necessary for the High Court to minutely examining the record of the General Court mar- tial as if it was sitting in appeal. Wend that on merit, the High Court has not said that there was no case against the respondent to hold him guilty of the o ence charged.
Though Court Martial proceed- ings are subject to judicial review buy the High Court under Article 226 of t he Constitution, the Court Mar- tial is not subject to the superinten- dency of the High Court under Ar-
324 Union Of India And Others v. Major A. Hussain 1997)
ticle 227 of the Constitution. If a court martial has been properly con- vened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter and court must stay its hands. Proceedings of a court mar- tial are not to be compared with the proceedings in a criminal court un- der the Code of Criminal Procedure where adjournment have become a matter of routine though that is also against the provisions of law. It has been rightly said that Court Mar- tial remains to a signi cant degree, a specialised part of overall mecha- nism by which the military discipline is preserved. it is for the especial need for the armed forces that a per- son subject to Army Act is tried by court martial for an act which is an o ence under the Act. Court Mar- tial discharges judicial function and to a great extent is a court where provisions of Evidence Act are ap- plicable. A court martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the processions of law relating to Court Martial in the Army Act, the Army Rules, Defence Service Regu- lations and other Administrative In- structions of the Army, it is mani- festly clear that the procedure pre- scribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is su - cient evidence to sustain conviction, it is unnecessary to examine if pre- trial investigation was adequate or not. Requirement of proper and ad-
equate investigation is not jurisdic- tional and any violation thereof does not invalidate the court martial un- less it is shown that accused has been prejudiced or a mandatory provisions has been violated. One may use- fully refer to Rule 149 quoted above. The High Court should not allow the Challenge to the validity of con- viction and sentence of the accused when evidence is su cient, court martial has jurisdiction over the sub- ject matter and has followed the pre- scribed procedure and is within its powers to award punishment.
After ourselves examining the record of the court martial, we nd that the high Court completely mis- directed itself in coming to the con- clusion that the respondent was de- nied reasonable opportunity to de- fend himself. He was given copies of all the relevant papers and also given opportunity to inspect what- ever record he wanted; allowed ser- vices of a civilian counsel; special ad- vance was given to engage the ser- vices of civil counsel as requested by the respondent; there was no rule to give further advance to engage yet another civil counsel when rst one withdrew; respondent was not ham- pered by paucity of funds as made out by him; no fault could be found with the covening o cer if the re- spondent himself did not avail the services of a defending o cer when provided; cross-examination of im- portant witnesses was deferred at the request of the respondent; and he had participated in the record- ing of Summary of Evidence without raising any objection. The General
325
Court Martial took into considera- tion all the evidence and other ma- terials produced before it; found the respondent guilty of the charge and sentenced him to be dismissed from service. Pre-con rmation petition submitted by the respondent was re- jected by the Chief of the Army Sta and nding and sentence of the Gen- eral Court Martial were con rmed by him. Thus, examining the case of the respondent from all angles which
led the High court to set aside his conviction and sentence, we are sat- is ed that there was no irregularity or illegality and respondent was pro- vided with reasonable opportunity to defend himself and the proceedings were fair. We, therefore, set aside the impugned judgment of the High Court and dismiss the writ petitionled by the respondent.
The appeal is allowed with costs.
326 Union Of India And Others v. Major A. Hussain 1997)
Chapter 26
The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997
The General Court Martial & Ors v. Col. Aniltej Singh Dhaliwal on 12 December, 1997 Author: Srinivasan Bench: M Punchhi, M Srinivasan
PETITIONER:
THE GENERAL COURT MAR- TIAL & ORS.
v.
RESPONDENT:
COL. ANILTEJ SINGH DHALI- WAL
DATE OF JUDGMENT: 12/12/1997
BENCH:
M.M. PUNCHHI, M. SRINI- VASAN
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Srinivasan, J.
The respondent was an Army Of-
cer of the rank of Lt. Col. and was posted as Commanding O cer under 116 Engineer Regiment, with head quarter, 17 Mtn. Arty. Brde. Nine charges were framed against him on 24.6.1995 and General Court Martial was held from 1.7.95 to 10.11.95. He was found guilty on charges 2,3,8 and 9. He led Crl. Writ Petition No.1 of 1995 in the High Court of Sikkim on 11.12.95. Thereafter on 2.3.1996 the order of the Court Martial was con-rmed under Section 154 of the Army Act. By judgment dated 9.8.96 the High Court allowed the writ petition and quashed the order or the Court Martial. The appellant has preferred this appeal against the judgment of the High Court.
2. The main contention of the ap- pellant is that the High Court has exceeded its power of judicial review under Article 226 and acted as a court of appeal by discussing and ap- preciating the evidence. Reliance is
328The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997
placed on Nagendra Nath Bora Ver- sus The Commissioner of Hills Diven and Appeals 1958 SCR 1240 wherein this court held that the High Court had no power under Article 226 to issue a writ of certiorari in order to quash an error of fact, even though it may be apparent on face of the record unless there is an error of law which is apparent on the face of the record. The court observed that the juris- diction of the High Court is limited to seeing that the judicial or quasi- judicial tribunals or administrative bodies exercising quasi-judicial pow- ers do not exceed their statutory ju- risdiction and correctly administer the law laid down by the Statute un- der which they act.
3.In H.S. and I.E. Board, U.P. Versus Bagleshwar AIR 1966 SC 875, the court held that an order passed by a Tribunal holding a quasi judi- cial enquiry which is not supported by any evidence is in order which is erroneous on the face of it and as such is liable to be quashed by the High Court under Article 226. In Parry & Co. Versus Judge, 2nd I.T. Cal. AIR 1970 SC 1334 the court held that a writ is granted generally when a court has acted without or in excess of its jurisdiction or where the Tribunal acts in agrant disregard of the rules of procedure or violates the principle of natural justice where no particular procedure is prescribed.
4.In Bhagat Ram Versus State of H.P. AIR 1983 SC 454 the court held that where a nding of the disci- plinary authority is utterly perverse, the High Court can interfere with the same.
5. In S.N. Mukherjee Versus Union of India (1990) 4 SCC 594, the Constitution Bench dealt with a case wherein the appellant had challenged the validity of the nd- ing and the sentence recorded by the General Court Martial and the or- der of the Chief of Army Sta con-rming the same. The court held that the Supreme Court under Ar- ticle 32 and the High Court under Article 226 have the power of judi- cial review in respect of proceedings of courts martial and the proceedings subsequent thereto and can grant ap- propriate relief if the said proceed- ings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings su er from a juris- dictional error or any error of law ap- parent on the face of the record. Af- ter elaborately considering the provi- sions of the Army Act and Rules, the court pointed out that at the stage of recording of ndings and sentence the Court Martial is not required to record its reasons. It will be advan- tageous to extract the following pas- sage in the judgment:
\From the provisions referred to above it is evident that the Judge ad- vocate plays an important role dur- ing the course of trial at general court martial and he is enjoined to main- tain 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 bearing of the case. The members of the court have to express their opinion as to the nd- ing by word of mouth or each charge
329
separately and the nding on each charge is to be recorded simply as anding of \guilty" or of \not guilty". It is also required that the sentence should be announced for the with in open court. Moreover Rule 66(1) requires reasons to be recorded for its recommendation in cases where the court makes a recommendation to mercy. There is no such require- ment in other provisions relating to recording of ndings and sentence. Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was there it would not have been necessary to make a speci c provision for record- ing of reasons for the recommenda- tion to mercy. The said provisions thus negative a requirement to give reasons for its nding and sentence by the court martial and reasons are required to be recorded only in cases where the court martial makes a rec- ommendation to mercy. In our opin- ion, therefore, at the stage of record- ing of ndings and sentence the court martial is not required to record its reasons and at that stage reasons are only required for the recommenda- tion to mercy if the court martial makes such a recommendation".
6. In Chaturvedi Versus Union of India (1995) 6 SCC 749, the court observed that judicial review is not an appeal from a decision but a re- view of the manner in which the de- cision is made and the power of ju- dicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is neces- sarily correct in the eye of the court.
7.Relying on the aforesaid re- lines learned counsel for the appel- lants submit that the High Court in this case has exceeded its jurisdiction not only by reappreciating the evi- dence but also by erroneous under- standing provisions of the Evidence Act. It is argued by him that in this case there has been no violation of principles of natural justice or rules of procedure and that there is am- ple evidence on record to support thendings of the Court Martial.
8.Learned counsel for the re- spondent contends that the court martial has relied on inadmissible ev- idence and over looked certain rele- vant evidence on record and its nd- ings are vitiated. He has placed re- liance on the ruling in Ranjit Thakur Versus Union of India & Ors. (1987)
4SCC 611. In that case the court found that there was failure to en- quire from accused as required by section 130 of the Army Act whether he objects to trial by any of the o - cers present and held that the entire proceedings was vitiated. The court went on to hold that the punishment awarded was disproportionately ex- cessive and quashed the same.
9.Now, we shall proceed to con- sider the four charges found against the respondent and the decisions of the High Court thereon.
10.(a) Charge No. 2 reads as
under:
\IN A DOCUMENT SIGNED BY HIM KNOWINGLY MAKING A FALSE STATEMENT ( Army Act Section 57 [a] ) :
In that he, at eld, on 23rd
330The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997
October 1993, while being Com- manding O cer 116 Engr. Regt. signed 116 Engr. Regy. letter No. 2012/Gen/SAT/OPV dated 23rd October 1993 addressed Maj. Gen. K.C. Dhingra, V.S.M., GOC 17 Mtn. Div. stating \It is brought fwd for your information that all the SRTs procured from M/s. Dhari- wal Steel Pvt. Ltd. Calcutta have since been issued out for the con- str. of PDs are likely to be com- pletely ground applied by 30th Oc- tober, 1993", well knowing the said statement to be false".
(b) The Court Martial dealt with it in the following manner:
\Second Charge"
After considering the evidence on record the court nd that there is no denial on the part of accused for hav- ing written the said letter to Maj. Gen. K.C. Dhingra, V.S.M. It has also nowhere being brought on record that prior to date of writing this let- ter dated 23rd October , 1992 (Ext. Q), the accused had ascertained that the said Arts. had been issued for ground application although the ac- cused has averred in his unsworn statement (Ext. BT) that he had checked up with Maj P.K. Mangal (PW 16). In addition to the above the following reasons clearly indicate the guilt of the accused:-
(a) Maj P.K. Mangal (PW 16) has deposed that on 27th September, 1992 he was told by the accused that he was issuing SRTs from defence brick stores so that early completion of permanent Defence OP Task could be ensured.
(b)PW 16 has further stated that on the inster of the accused he wrote letter dated 24th October, 1993 (Ext.M) to all coys asking them to identify such PDs where the said SRTs have been utilise and con rm the same by 13th October, 1992, this action of accused is subsequent to and not prior to his writing the said letter (Ext.Q)
(c)Vide his noting sheet dated 20th October, 1993 (Ext.M) ad- dressed to Maj. Gen. K.C. Dhin- gra, V.S.M. the accused in para (c) had mentioned that he had accepted below speci cation SRTs to make up the SRTs of defence brick issued by him for Job s
(d)Vide his letter to Maj. Gen. K.C. Dhingra, V.S.M. dated 20th October, 1993 (Ext. O) the accused had stated therein his opinion the SRTs supplied by M/s. Dhariwal Steel Ltd. should be utilise for mak- ing up of the de ciency of Defence Brick SRTs which had been issued for consturction of PDs.
(e)673 SRT out of a total of 680 were found at ETP-V when checked by Lt. Col. K.K. Khosla (PW 27) and Capt. Sant Ram Verma (PW 25) on 10th December, 1993.
(f)By common military knowl- edge it can be inferred that between the date of writing the letter Ext. Q-
10i.e. 23rd October, 1993 and prob- able date of completion given therein i.e. 30th October, 1993 it is not pos- sible to apply the said quantity of SRTs on ground".
11. Before the High Court the contention of the respondent was
331
that the letter Ext. Q-10 on the ba- sis of which charge No. 2 was framed was written by him in response to a query from the sta Court of In- quiry and it was therefore not admis- sible in evidence. The High Court ac- cepted that contention and held that the said letter was not admissible in view of the provisions in Rule 182 of Army Rules. It is also held by the High Court of Army Rules. It is also held by the High Court that the court material had not taken into consider- ation a report of Lt.Col. K.K. Khosla which was marked as Ex. AW. On those grounds the High Court held that the ndings of the Court Mar- tial were wholly unsustainable.
12.Both the reasons given by the High Court for quashing the nd- ing of the Court Martial, as stated above, are totally erroneous. As re- gards the admissibility of Ex. Q-10 in evidence, Rule 182 of the Army Rules is not applicable to the same. It is brought to our notice that fac- tually, the Court of Inquirty com- menced on 28th September, 1992 and culminated on 14th October, 1993. The letter Ex. Q-10 was written only on 23.10.1993 i.e. after the Court of Inquiry concluded. Further the letter was addressed to Maj. Gen. K.C. Dhingra, VSM. Admittedly he was not a member of the Court of Inquiry and had nothing to do with the same. The only contention urged before us is that he was the Commanding of-cer Incharge at the time when the alleged o ence took place. That is not su cient to attract Rule 182 of the Army Rules.
13.The Rule reads as follows:
\182 Proceedings of Court of In- quiry not admissible in evidence The proceedings of a Court of Inquiry. or any confession, statement or an- swer to a question made or given at a Court of Inquiry shall not be ad- missible the Act, nor shall any ev- idence respecting the proceeding of the Court be given against any such person except upon the trial of such person for willfully giving false evi- dence before the Court."
The Rule refers only to the pro- ceedings of a Court of Inquiry or any confession, statement or answer to a question made or given at a Court of Inquiry. Ex. Q 10 does not be- long to any of the above categories. The latter part of the Rules refers to evidence respecting the proceedings of the Court and prohibits the same being given except upon the trial of such person for wilfully giving false evidence before that Court. That part of the rule is also not accept- able. Moreover, Ex.Q-10 does not refer to any query being put by the addressee. It has only referred to an earlier letter dated 20.10.1993. Re- liance is placed upon the caption in Ex. Q-10 which makes a reference to sta of Court of Inquiry. That does not help the respondent in any man- ner. We have been taken through the averments contained in the writ pe- tition led by the respondent before the High Court. They do not disclose as to how the letter could be said to be falling within the scope of Rule 182 of the Army Rules. Hence, the view of the High Court is based on aagrant error that the document was inadmissible in evidence.
332The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997
14. The other reason given by the High Court for interferring with thendings is that Ex. AW by Lt. SRTs out of a total of 680 were found at ETP-V when he checked the same on 10.12.1993. Lt. Khosla was ex- amined as PW 27 before the Court Martial and there is a speci c ref- erence to the same in the order of the Court Martial. The respondent places reliance on a portion of that report in which the responsibility for the lapses was attributed to Son. Sukhdev Singh. It is argued that the report of Lt. Col. Khosla xing the responsibility on Sub. sukhdev Singh should have been accepted by the Court Martial. There is no merit in this contention. In the rst place, the High Court is error in thinking that the Court Martial had not taken into consideration Ex.A.W. On the other hand, the Court Martial has expressly referred to the evidence of Lt. Col. Khosla himself and contents of Ex.AW. Secondly, the High Court is wrong in thinking that the re- port xing the responsibility on Sub. Sukhdev Singh should have been ac- cepted and the respondent should have been exonerated. Admittedly, Sub. Sukhdev Singh is a subordinate o cial. The responsibility for the stores was with the respondent. He cannot escape by contending that a subordinate o cial was responsible. It is for the Court Martial to con- sider the said question and come to a conclusion. When the Court Mar- tial has held that the respondent was responsible for the lapse, it was not for the High Court to interfere with the same as there was no omission on the part of the Court Martial to
consider the relevant evidence.
15.(a) Turning to Charge No.3 the same is to the following terms:
IN A DOCUMENT SIGNED BY HIM KNOWINGLY MAKING A FALSE STATEMENT:- Army Act - Sec. 57(a) In that he,
as led, on 23rd Oct. 1993 while being Commanding O ce 116 Engr. Regt. signed 116 Engr. Regt. let- ter OPW dated 23rd VSM, DOC 17 MTN Div. stating \It is brought fwd. for your info. that all the FRTs procured from M/s. Dhariwal Steel Pct. Lt. Calcutta has since been issued out for the constr. of PDs in the current working season. On these PDS are likely to be com- pletely ground applied by 30th Oct, 1993, well knowing the said state- ment to the false" (b) The decision of the Court Martial was a followed: THIRD CHARGE:- In support of this nding the evidence i.e.on record is as follows:
(a)Lt. Col. B. Manickam, PW-5 has deposed that during second week of November 1992 he was called by the accused in his o ce where he was made to sign the Bd. proceed- ings pertaining to generators and al- ternators (Ex.U). At the same time the accused asked him to take the Bd. proceeding to Maj. G.K. Medi- ratta (PW 21) and obtained his sig- natures also on the Bd. proceed- ing to whom the accused had already spoken to PW 6 has also stated that at no stage the Bd. of o ers has phys- ically assembled to check the genera- tors/alternators after repairs.
(b)Maj. G.K. Mediratta, 9PW
333
21) has deposed that the Bd. pro- ceeding were brought to him by PW 6 and he signed the said Bd. pro- ceedings. he has also averred that the Board physically never assembled.
(c)Sub. KKV Pilla (PW 24) has deposed that he signed the Board proceedings on insistence of PW 21 and he did not even known at that stage which Bd. proceeding he was signing.
(d)Major MMS Bharaj (PW 11) has deposed that before making the payment he had told the accused that the said Bd. proceeding (Ex.U) were neither countersigned nor dated and on the inster. of accused he put the date as '27' (Exhibited as U-5)d. He (PW 11) has further stated that at the time of making payment he had also informed the accused that it will not be correct to make the payment since all generators had not come af- ter repairs.
(e)According to deposition of Hav. Amin ali (PW 12) and Hay. B.L. Prajapati (PW 28), the genera- tors kept coming even after 30th Nov. 1992 i.e. the date of payment".
16. The respondent contended before the High Court that the oral evidence of PWs6, 21 and 24 was not admissible in view of the pro- visions of Section 94 of the Evi- dence Act as the same was contrary to the proceedings of the Board. The High Court has accepted the said contention and held that Sec- tion 94 of the Evidence Act barred the admissibility of the oral evidence. The High Court has also observed that the Members of the Board who
has deposed that they had assigned the Board proceedings because the respondent wanted them to do so should have been proceeded against for their lapses. According to the High Court the non consideration of the said aspect of the matter was a gross omission on the part of the Court Martial. It was further ob- served by the High Court that the evidence of PW 20 was omitted to be considered by the Court Martial.
17. None of the reasons given by the High Court is sustainable. A pe- rusal of Section 94 of the Evidence Act shows that it has no applicability whatever. The Section reads thus:
94. Exclusion of Evidence against application of document to existing facts:-
\When language used in a docu- ment is plain in itself and when it ap- plies accurately to existing facts, evi- dence may not be given to show that it was not meant to apply to such facts"
The Section will come into play only when there is document and the language of it has to be considered with reference to a particular factual situation. That Section will apply only when the execution of the doc- ument is admitted and no vitiating circumstance has been put forward against the same. In the present case, the document in question is a proceeding of the Board. If at all, it can only be said that said docu- ment contains an admission made by the signatories thereto that they had checked the materials and the ser- viceability thereof. It is well settled
334The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997
that an admission can be explained by the markers thereof. In Naqubai Versus B. Shama Rao AIR 1956 S.C. 593 the Court held an admission is not conclusive as to the truth of the matter stated therein and it is only a piece of evidence, the weight to be attached to which must depend upon the circumstances under which it is made. The Court said that it may be shown to be erroneous or nature so long as the person to whom it was made has not acted upon it at the time when it might become conclu- sive by way of estoppel. The same principle has been reiterated in K.S. Srinivasan versus Union of India AIR 1958 S.C. 419, Basant Singh Versus Janki Singh AIR 1967 S.C. 341 and P.Ex-s. Co-op. T. F.S. Versus State of Haryana. AIR 1974 S.C. 1121.
18.The appellants herein con- tended before the High Court that the relevant provision of the evidence Act is Section 92, Proviso 1. The same contention was repeated before us. In our view neither Section 92 nor Section 94 is attracted in this case. Hence, the view of the High Court that the oral evidence given by PWs 6, 21 and 24 is inadmissible is totally erroneous.
19.There is another aspect of the matter to be considered. Section
133of the Army Act provides that the Indian Evidence Act shall subject to the provisions of the Act applied to all proceedings before the Court Martial. Section 134 provides that a Court Martial may take judicial no- tice of any matter within the general military knowledge of the members. It is quite obvious that in this case
the Court Martial had taken judicial notice of the fact that a lower o - cial obeys implicitly the directions of a higher o cial. The respondent be- ing an o cial higher in rank to the aforesaid witnesses, the latter car- ried out his directions by signing the Board proceedings. The High Court has also observed that the evidence of PW 20 was not considered by the Court Martial. We are unable to ap- preciate how the evidence of PW 20 is relevant in this regard. Hence, the reasoning of the High Court for set- ting aside the nding of the Court Martial on Charge No.3 is wholly un- sustainable. 20. (a) Charge No.8 was in the following terms:-
SUCH AN DEFENCE AS IS MENTIONED IN CLAUSE (f) OF SECTION 52 OF THE ARMY ACT WITH INTENT TO DEFRAUD
in that he,
at eld, between 30 Dec. 1992 and
22 July 1993, while being the
Commanding O cer of 116 Engr. Regt. with intent to defraud, made payments of Rs. 7,720/- (Ru- pees seven thousand seven hundred twenty only) against purported sup- ply of AIG Stores as per Appx 'B' to the charge-sheet, well knowing that no such items were infact received in the said unit
(b). It is dealt with by the Court Martial in the following terms.
\Eight Charge:- The reasons are as follows:
(a)Hav. Rajkumar Singh (PW
30)has deposed that on 18 March
| 335 | |||||||||||
| 1993, Hav. | Pillai | brought a | reasons which we have already give | ||||||||
| CRX | |||||||||||
| for 2 Ltrs of paint and 4 brushes 75 | when we dealt with Charge No.3 are | ||||||||||
| mm. As he was not dealing with A10 | equally applicable here. | ||||||||||
| stores he refused to sign the CRV. | 22. Hence, we hold that the High | ||||||||||
| Thereafter he was called by the ac- | |||||||||||
| court s in error in interferring with | |||||||||||
| cused and ordered to sign the CRV | the ndings of the Court Martial on | ||||||||||
| and he accordingly signed CRV dt. | Charge No.8. | ||||||||||
| 18 March 1993 (Ex. BL) | 22. | The Nineth Charge read as | |||||||||
| (b) Capt. A.K.Gautam (PW 32) | |||||||||||
| follows: | |||||||||||
| has deposed that | he had not re- | AN OMISSION PREJUDICIAL | |||||||||
| ceived any ARG stores in Febru- | |||||||||||
| TO GOOD | |||||||||||
| ary 1993. | He has further deposed | ||||||||||
| that he signed the Bill No.420/92- | ORDER AND MILITARY DIS- | ||||||||||
| CIPLINE | |||||||||||
| 93 dated 27 February 1993 after he | |||||||||||
| had informed the accused that Capt. | In that he, at led, between 01 | ||||||||||
| A.K. Jain has refused to sign since | Nov. 92 and 21 Nov. | 93 while be- | |||||||||
| no stores have been received. Capt. | ing the Commanding O cer of 116 | ||||||||||
| A.K. Jain was also not available at | Engr. | Regt. | and having | come to | |||||||
| Mile 2 location at that time. | The | know about the losses/de ciencies of | |||||||||
| accused, thereafter, instructed Capt. | Defence Brick Stores on charge of | ||||||||||
| A.K. Gautam (PW 32) to sing the | his regiment, improperly omitted to | ||||||||||
| said bill and he accordingly signed. | report the said losses/de ciencies in | ||||||||||
| (c) Lt. | Col. | B. Manickam | contravention of Para 1(c) of SAO | ||||||||
| (PW 6) has deposed that the ac- | 13/s/80. | ||||||||||
| cused asked him to take on charge | 23. It is unnecessary for us to | ||||||||||
| ATG stores which he refused since | consider the discussion of this charge | ||||||||||
| no stores had arrived. He further re- | by the Court Martial for on the | ||||||||||
| ected the de ciency of ATG stores | face of it the charge is unsustain- | ||||||||||
| in handing taking over noted ME-2 | able. | The | charge is | under | Para | ||||||
| which was brought to the notice of | 1(c) of | SAO | 13/2/80. | A | copy of | ||||||
| accused on 09 June 1993. | the said SAO has been produced | ||||||||||
| (d) The fact that accused was | before us. The relevant part of it | ||||||||||
| made aware on 09 June 1993 that | reads as follows: ADJUTANT GEN- | ||||||||||
| physically no ATG store had been re- | ERAL'S | BRANCH SAO | 13/s/80 | ||||||||
| ceived and yet he did not take any | DISCIPLINE-PROCEDURE | FOR | |||||||||
| action, is an indication of his intent." | SUBMISSION OF REPORTS RE- | ||||||||||
| 21. The High Court reversed the | GARDING INCIDENTS AND OF- | ||||||||||
| nding on this charge on the same | FENCES | INVOLVING | ARMY | ||||||||
| reasoning as with reference to Charge | PERSONNEL AND FOR | THEIR | |||||||||
| No.3. The High Court has held that | INVESTIGATION. Incidents and of- | ||||||||||
| the oral evidence adduced before the | fences to be reported. | ||||||||||
| Court Martial was inadmissible. The | 1. The following incidents and of- | ||||||||||
| fences will be reported: | |||||||||||
336The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997
(a)All cases of assault and a ray where persons subject to Army Act are involved.
(b)Breaches of discipline:-
(i)Collective insubordinations.
(ii)Suicide, attempted or sus- pected suicide: (iii) Murder or an at- tempt to murder. (iv) Rape
(v) MT accidents resulting in fa- tal or serious causalities, accidents involving civilian vehicles resulting in damage to property or injuries to civilians or persons subject to Army Act. (c) Other serious cases e.g. unnatural deaths not covered under sub-para (b) above.
24. It is quite obvious that the charge framed against the re- spondent will not fall under Para 1(c). The charge is not that some other persons brought about losses/de ciencies of defence Brick Store and the same was not reported by the respondent. Not is the charge to the e ect that it was the re- spondent himself who caused such losses/de ciencies. The charge itself is very vague. The High Court is therefore justi ed in holding that the charge is defective and the respon- dent cannot be made guilty.
25. There is no doubt that the High Court has erroneously set aside the ndings of the Court Martial on Charges 2,3 and 8. Now that we up- hold the ndings of the Court Mar- tial on the said charges, the only question which remains to be consid- ered is that of punishment awarded to the respondent. Prima facie, the sentence awarded by the Court Mar-
tial appears to be very service. But we do not want to decide the ques- tion here. As the Court Martial awarded such a sentence on the basis of the ndings on all the four charges, namely, 2, 3, 8 and 9 the same can- not be sustained as we have now held that Charge No.9 is unsustain- able and the nding thereon has been rightly quashed. Hence, the question of sentence has to be considered on the basis of three charges namely 2, 3 and 8 being found against the re- spondent. That has to be done by the Court Martial. Therefore, the matter has to be remanded back to the Court Martial for deciding that question.
26.Consequently the appeal is partly allowed and the judgment of the High Court is set aside except with reference to its conclusion on charge No.9. The sentence awarded by the Court Martial is set aside and the matter is remitted to the Court Martial for considering and passing an appropriate sentence on the basis of ndings on Charges 2, 3 and 8.
27.In the facts and circum- stances of the case we nd it neces- sary to invite attention of appellants
2to 4 to consider initiating appropri- ate proceedings against PWs 6, 21 26, 30 and 32 who deposed at the Court Martial that they had signed or prepared o cial record on the oral directions of the respondent with- out verifying the correctness thereof which act of their was in direction of duties. These state of a airs is highly distressing. We record our displea- sure.
Chapter 27
Union of India v. Capt. A.P. Bajpai 1998
| Union of India & Ors v. | Capt. | that he, at Pithoragarh on 08 Sep | |||||
| A.P. Bajpai [1998] INSC 119 (20 | 77 committed theft of the following | ||||||
| February 1998) | property belonging to the Govt :- | ||||||
| Sujata V. Manohar, D.P. Wad- | (aa) Jam td Kissan 4 tins (450 | ||||||
| hwa D.P. Wadhwa. J. | gms each) - 1.800 Kgs | ||||||
| ACT: | (bb) Pine apple td 6 tins (850 gms | ||||||
| HEAD NOTE: | each) - 5.100 Kgs. | ||||||
| THE 20TH DAY OF FEBRU- | (cc) Sausage td 9 tins (400 gms | ||||||
| each) - 3.600 Kgs. | |||||||
| ARY, 1998 Present : | |||||||
| Hon'ble | Mrs. | Justice | Sujata | (dd) Co ee 1 tins (500 | gms) - | ||
| 0.500 Kgs. | |||||||
| V. Manohar | Hon'ble | Mrs. | Justice | ||||
| D.P. Wadhwa P.P. Malhotra, N.N. | (ee) Milk td 54 tins (397 gms | ||||||
| Goswami, Sr, Advs., A.K. Srivas- | each) - - 21. 438 Kgs. | ||||||
| tava, Hemant Sharma and Ms. Anil | (ii) Under Army Act Section 39 | ||||||
| Katiyar, Advs, with them for the ap- | |||||||
| (b) for absenting himself without | |||||||
| pellants. | J.S. Sinha, Rajiv | Dutta, | leave in that he, at Pithoragarh, in | ||||
| Randhir Singh, Advs, for the Re- | 03 Jun 78, while attached to Station | ||||||
| spondent | Headquarters Pithoragarh, absented | ||||||
| The following Judgment of the | himself without leave until voluntar- | ||||||
| Court was delivered: | ily rejoined on 07 Jun 78." | After | |||||
| The respondent, an o cer in the | the conclusion of the trial by or- | ||||||
| army, was tried by General Court | der dated January 21, 1979 General | ||||||
| Martial on the following two charges: | Court Martial held the respondent | ||||||
| \(i) Under Army Act Section | not guilty of the rst charge of theft, | ||||||
| but found him guilty of the second | |||||||
| 52(a) for committing theft of prop- | charge and sentenced him to forfeit | ||||||
| erty belonging to the Government in | |||||||
| 338 | Union of India v. Capt. A.P. Bajpai 1998 |
three years' service for the purpose of promotion and to be severely rep- rimanded. Under Section 153 of the Army Act, 1953 (for short `the Act'), the nding or sentence shall be valid except so far as it may be con rmed as provided by the' Act. Under Sec- tion 154 the nding and sentence of General Government, or by any of-cer empowered in this behalf by warrant of the Central Government. When the matter was placed be- fore the General O cer Command- ing U.P. Area, the competent con-rming authority, he in the exercise of his power under Section 160 of the Act revised the ndings of the General Court martial on the rst charge and directed it to reconsider the entire evidence relating to therst charge in the light of the obser- vation made by him in the order. He gave the following directions for the General Court Martial to observe:
\If the Court, on revision, revokes its earlier nding on the rst charge and nd the accused guilty of therst charge, it shall revoke its ear- lier sentence and pass a suitable fresh sentence.
After this revision order is read in open Court, the accused shall be given a further opportunity to ad- dress the Court. Therefore, if it be- comes necessary to clear any points raised by the accused, the Judge Ad- vocate may give a further Summing up.
The attention of the Court is in- vited to Army Act Section 160 and Army Rule 68 and the form of pro- ceedings on revision on page 370 of the MIML 1961 reprint, which should
be modi ed to conform to Army Rule 62(10)."
In pursuance to the aforesaid order of the con rming authority, General Court Martial assembled on March 10, 1979 and on the request of the respondent was adjourned to the following day. The respon- dent made written submissions which were taken on record. After reconsid- eration the court held the respondent guilty of both rst and the second charges.
Respondent was thereafter sen- tenced to be dismissed from service by order dated March 11, 1979. The conviction and sentence so passed on the respondent was con rmed by the Chief of the Army Sta by order dated September 14, 1979 which was promulgated on September 24, 1979.
The respondent under Section 164 (2) of the Act preferred a post con rmation petition before the Cen- tral Government which was rejected. The respondent thereafter led the writ petition in the High Court of Judicature at Allahabad challenging his conviction and sentence. A Di- vision Bench of the High Court by impugned judgment dated December 22. 1992 set aside the conviction and sentence passed on the respondent on the rst charge and held that punish- ment on the second charge was yet to be con rmed by the con rming au- thority so as to make the same oper- ative.
On leave being granted, the ap- pellants have led this appeal.
The stage from which the High Court thought it necessary to in-
339
terfere in the proceedings was when the con rming authority passed or- der under Section 160 of the Act re- vising the order of the General Court Martial holding the respondent not guilty of the rst charge. High Court was of the view that the con rming authority had analysed the evidence minutely almost returning the nd- ing of guilt against the respondent and leaving no discretion with the General Court Martial to act oth- erwise. High Court termed the ob- servations of the con rming author- ity unwarranted and said that even the subsequent con rming authority being the Chief of the Army Sta overlooked the abuse of the power committed by the rst con rming authority under Section 160 of the Act in reappreciating the whole evi- dence on record in respect of the quilt of the respondent and further that the authorities did not care to read the revisional order of the con rm- ing authority properly and rejected the statutory representation of the respondent. High Court did notice the following observations of the con-rming authority in its order of revi- sion but said it was a very ingenious method adopted by the con rming authority to in uence the Court Mar- tial and said that the whole thing was a mere camou age:
\While in no way wishing to in- terfere with the discretion of the court to arrive at a particular nd- ing or sentence, and regarding the value to be attached to the evidence on record and the inference to be deducted therefrom, I, as the con-rming o cer, am of the view that
the nding of `not guilty' on therst charge arrived at by the court is perverse being against the weight of overwhelming evidence...." High Court was thus of the view that the rst con rming authority over- stepped its jurisdiction and that its order was invalid. High Court relied on a decision of the Delhi High Court in Naib Subedar Avtar v. Union of India [1989 Cr1.L.J. 1986 rendered by a single Judge where that Court took the view that the con rming authority could not appreciate evi- dence as its jurisdiction was limited and that where the con rming au- thority had given directions to the Court Martial to reverse the nd- ings of \not guilty" into \guilty", the order of the con rming author- ity was held to be bad and liable to be quashed.
In our view, the High Court did not properly appreciated the scope and intent of Section 160 of the Act.
Section 160 is as under:
\160. (1) Any nding or sentence of a court martial which requires con-rmation 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.
(2)The court, on revision, shall consist of the same o cers as were present when the original decision was passed, unless any of those of-cers are unavoidably absent.
(3)In case of such unavoidable absence the cause thereof shall be duly certi ed in the proceedings, and the court shall proceed with the revi-
| 340 | Union of India v. Capt. A.P. Bajpai 1998 |
sion provided that, if a general court martial, it still consists of ve of-cers, or, if a summary general or district court martial of three o - cers." Rule 68 of Army Rules, 1954 deals with con rmation and revision of nding or sentence of a Court Mar- tial. There are Notes under this Rule and Note 6 is relevant. These are:
\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 and 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 pre- siding o cer shall date and sign the decision of the court, and the pro- ceedings, upon being signed by the Judge Advocate, if any, shall at once be transmitted for con rmation.
NOTES 1 to 5 xxx xxx xxx
6. If a court brings in a nd- ing of \not guilty" against the weight of evidence, the court may be re- assembled and the con rming o cer may give his views on the evidence, directing the attention of the court to any special points which it appears to
have failed to appreciate. \The nd- ing of sentence of the Court Martial can be revised once by the con rming authority. If after remand the Court Martial returns the same nding or sentence con rming authority would be bound by the same. As to why the con rming authority would like the Court Martial to reconsider the mat- ter, it has per force to give its views which it can do only after examining the evidence on record and the pro- ceedings of the Court Martial."
In Capt. Harish Uppal v. Union of India and Others [1973 2 SCR 1023] the petitioner, an o cer in the Army, was tried before the Summary General Court Martial on the charge of committing robbery on December 11, 1971 at Hajiganj (in Bangladesh) of the properties of the Bank, its Manager as well as of the Chowki- dar. The court sentenced him to be cashiered. This sentence was subject to con rmation.
The con rming authority passed an order directing the revision of the sentence. Thereafter the petitioner was brought before the same Court Martial and after considering the ob- servations of the con rming author- ity revoked the earlier sentence and now sentenced him to be cashiered and to su er rigorous imprisonment for two years. This nding and sen- tence were subsequently con rmed. It was challenged in the Supreme Court in a petition under Article 32 of the Constitution and one of the arguments was that the authority to con rm the sentence passed by a Court Martial did not confer on the con rming authority the power to en-
341
hance the sentence and that author- ity could not achieve that object in- directly by directing the revision of the sentence. It was contended that the Court Martial verdict should be unfettered. This Court examined the order of revision of the con rming authority. While sending the matter back of the Court martial the con-rming authority gave a caution that \whilst in no way intending the quan- tum of punishment to be awarded, the court should fully of punish- ment to be awarded, the court should fully take into consideration the fol- lowing observations of the Con rm- ing O cer" and also that the court should then carefully consider all the above and should they decide the en- hance the sentence, then fresh sen- tence should be announced in open court as being subject to con rma- tion. This Court held that the order of the con rming authority directing revision was in no way vitiated.
In Gian Chand v. Union of India and others [1983 Crl.L.J. 1059] a di- vision bench of the Delhi High Court said that a direction given by the con rming authority to the General Court Martial to reconsider the nd- ing or sentence could not be said to be a fetter on the exercise of powers of the General Court Martial. High Court said that an order under Sec- tion 160 was a sort of an application for review which was made by the con rming authority and the statute, thereupon, caste a duty on the Gen- eral Court Martial to reconsider its earlier nding or sentence but it was not obliged to change its earlier view. It further said that the Court Martial
when it was reconsidering the mat- ter in pursuance of a direction having been issued under Section 160 had to apply its mind to the case indepen- dently, unin uenced by any observa- tions which might have been made in the direction given by the con rm- ing authority. These two decision, it would appear, were not brought to the notice of the Judges of the Al- lahabad High Court while delivering the impugned judgment as there is no reference to the aforesaid two deci- sions, one of the Supreme Court and the other of the Division Bench of the Delhi High Court.
In Ex. Lieut Jagdish Pal Singh v. Union of India and Ors. [Crim- inal Appeal NO. 104 of 1991 de- cided on May 7, 1997] the appel- lant was a commissioned o cer in the Army and faced trial before a Court Martial on the accusation of taking away large number of bottles of Rum worth about Rs.5616/- from the mil- itary canteen. After trial the Court Martial held the charge not proved against the appellant.
When the matter was placed be- fore the con rming authority as re- quired under Section 153 of the Act, the con rming authority remitted the matter to the Court Martial in- dicating various aspects of the case which had not been considered prop- erly. It was made clear by the con-rming authority at the outset that the observations made by the con-rming authority were not made to in any way interfere with the discretion of the members of the Court Martial in basing its nding on reconsidera- tion of the matter.
| 342 | Union of India v. Capt. A.P. Bajpai 1998 |
Thereafter the Court Martial met again and on reconsideration came to the nding that the appellant was held guilty of the o ence and sen- tenced him to be dismissed from ser- vice. The nding and sentence were later con rmed by the con rming au- thority. The appellant led a writ pe- tition in the Delhi High Court it was contended that the revisional author- ity was empowered merely to direct for additional evidence and that no such direction had been given and on the contrary observation on merits of the case was made overstepping the limit of jurisdiction by the con rming authority. This Court held that the con rming authority had not made any nding which was likely to cause prejudice against the appellant and that it had at the very outset made it clear that the Court Martial was free to decide by adverting to certain basic features indicated by the con-rming authority. This Court there- fore refused to interfere in the mat- ter.
We are unable to subscribe to the submissions now advanced before us that the jurisdiction of the con rm- ing authority is con ned only to giv- ing of directions for recording ad- ditional evidence by General Court Martial or that from the order of the con rming authority \inference can- not be escaped that this is based not on any independent judgment but in-uenced by the undisguised opinion expressed by the con rming author- ity on merits of the case" or that the revisional order contained such un- warranted observations, which were tantamount to recording of nding,
which was in no way the function of the con rming authority or that ju- risdiction by con rming authority. It was asserted that the order in revi- sion was liable to be quashed and rightly done so by the High Court. All this, however, appears to us to be mistaken view entertained by the High Court both in law and from the facts of the case.
There is no dispute that in the conduct of the Court Martial pro- ceedings before and at the stage of reconsideration procedure as pre- scribed was followed. It is the true that the con rming authority did analyses the evidence on the record of proceedings of the Court Martial but that was so done in the context of indicating where the Court Mar- tial could have gone wrong in appre- ciation of evidence and nevertheless caution had been administered to the Court Martial that what was said in the revision order was not intended in any way to interfere with the dis- cretion of the Court Martial to arrive at a particular nding or sentence and regarding the value to be at- tached to the evidence on record and the inference to be deducted there from. Con rming authority said:
\Consequently, I am also of the view that the sentence awarded onnding the accused quality of the second charge is not commensurate with the gravity of the o ence. At the very outset, I wish to impress that where the Court ignores the broad features of the prosecution case, and restricts itself to a consider- ation of minor discrepancies and fur- ther meticulously juxtaposes the ev-
343
idence of di erent witnesses on dis- puted points and discards the evi- dence in its entirety when discrep- ancies are found, the method can rightly be criticised as fallacious. It has to consider whether there is any direct/reliable evidence on questions which have to be established by the prosecution.
Undoubtedly, in considering whether evidence is reliable, it is jus- ti ed in directing attention to other evidence which contradicts or is in- consistent with the evidence relied upon by the prosecution. But to dis- card all evidence because there are discrepancies without any attempt at evaluation of the inherent quality of the evidence is unwarranted. The court should make an e ort to dis- engage the truth from falsehood. It is an error to take and easy course by holding the evidence discrepant and the whole case untrue. Even when the prosecution witnesses have not deposed the whole truth and al- though it may not be possible to get an absolutely true picture of the events from their evidence, it is not proper and justi able to say that the prosecution case is a complete fabrication. Bearing in mind these principles the Court should examine the evidence adduced before them in respect of each charge." It was contended by the respondent that the very use of the expression \per- verse" in the revision order would have in uenced the mind of the mem- bers of the General Court Martial as the o cers constituting the General Court Martial were lower in rank than the con rming authority who
was of the rank of Major General and that the con rming authority of its own appreciated whole of the ev- idence instead of saying as to what evidence was to be considered by the General Court Martial which had the e ect of in uencing the Gen- eral Court Martial. An argument was also raised that when the Court Martial reassembled after the revi- sion order the whole proceeding con- cluded within half an hour and the General Court Martial returned nd- ing of guilt against the respondent. That according to the respondent would show that the General Court Martial did not apply its mind in- dependently and was swayed by the opinion of the con rming authority. It was lastly submitted that there was no ground for the con rming au- thority to interfere in the proceeding of the General Court Martial which had considered the evidence and ar- gument in depth and held the rst charge not proved against the re- spondent. We are unable to agree to any of the submissions. Con rming authority cannot act merely as a rub- ber stamp. The fact that the nding and sentence of Court Martial should be valid only after it is con rmed by the competent authority would show that it has to examine the whole of the record of the proceeding of the Court Martial before con rming thending or sentence. It is the require- ment of Section 160 that when the con rming authority wished that thending or sentence of a Court Mar- tial required revision it should not send back the case as a matter of course but record reasons as to why the con rming authority thought so
| 344 | Union of India v. Capt. A.P. Bajpai 1998 |
as to where the Court Martial has failed in its duty to properly exam- ine the facts and in application of correct law. When the matter is re- mitted back to the Court Martial under Section 160 the Court Martial may take additional evidence if so directed by the con rming authority. In the present case no such direction was given by the con rming author- ity and there was no occasion for the General Court Martial to record ad- ditional evidence. Full opportunity was given to the respondent to make submission before the General Court Martial after it had reassembled and as the record would show copy of the revisional order was also supplied to respondent and he made his submis- sion in writing. The Court thereafter that it revoked its earlier nding and sentence and held the respondent
guilty of the rst and second charge. It cannot be said that the nding and sentence after reconsideration was arrived at in a hurried fashion.
We have noted above that now it was the Chief of the Army Sta who con rmed the nding and sentence and when he did so it could not be said that the whole of the record was not before him. We do not think that the con rming authority exceeded its jurisdiction in analysing the evidence recorded during Court Martial pro- ceedings. The revision order was not intended in any way to interfere with the discretion of the Court Martial and the Court Martial was also not bound by any such observation.
We, therefore, allow the appeal, ser aside the Judgment of the High Court and dismiss the writ petitionled by the respondent.
Chapter 28
Union Of India v. Subedar Ram Narain 1998
Union Of India v. Subedar Ram Narain on 15 September, 1998 Equiv- alent citations: AIR 1998 SC 3225, JT 1998 (6) SC 383, 1998 LablC 3530 Author: B Kirpal Bench: S Bharucha, G Nanavati, B Kirpal
JUDGMENT
B.N. Kirpal, J.
1.The only question which arises for consideration in this and the con- nected appeals is whether the respon- dent who was junior commissioned o cer, would be ineligible for pen- sion or gratuity in respect of all his previous service on his being dis- missed under the Army Act, 1950.
2.The respondent was enrolled in the Indian Army on 17.03.1962. He was promoted to the rank of Subedar Major with e ect from 1st March, 1984. While he was serv- ing with 75 Medium Regiment he was kept in close arrest with e ect from 17.11.1988 and was then court martialed under the provisions of the Army Act. He was charged Under Section 40(a), using criminal force to
his superior o cer, and Section 48 of the Army Act, 1950 for being in a state of intoxication while on duty.
3.The General Court Mar- tial found the respondent guilty and thereupon he was dismissed from ser- vice on 01.08.1989. He led an ap- peal to the Chief of the Army Sta against the decision of the General Court Martial but the same was re- jected after due consideration.
4.The respondent then led writ petition No. 423 of 1989 in the High Court of Jammu and Kashmir pray- ing for quashing of the court martial proceedings. This petition was how- ever, withdrawn and another writ pe- tition No. 917 of 1991 was led in the Delhi High Court for the grant of pensionary bene ts. The High Court while relying upon the deci- sion of this Court in the case of Major G.S. Sodhi v. Union of In- dia, , came to the conclusion that as the General Court Martial had not passed an order depriving the respon- dent of pensionary bene ts, there-
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fore, he would be entitled to the same notwithstanding his dismissal from service.
5.In this appeal by special leave the challenge is to the aforesaid con- clusion of the High Court.
6.On behalf of the appel- lant it was contended by Sh. N.N. Goswami, learned senior counsel, that the provision with regard to eli- gibility for receipt of pensionary ben- e ts by the junior commissioned o - cer on being dismissed or discharged under the Army Act is governed by Regulation 113(a). This provision, it was contended, was di erent from the provision which was applicable in the case of dismissal of commis- sioned o cers. It was submitted that the High Court, in the instant case, erred in relying upon a decision of this Court in Major Sodhi's case (supra) which did not pertain to the applicability of Regulation 113(a). Our attention was drawn to Regula- tion 16(a) which related to the pay- ment of pension to an o cer who is cashiered, dismissed, removed or called upon to retire, it was that reg- ulation which had application in Ma- jor Sodhi's case.
7.Chapter III of the Reg- ulations relates to junior commis- sioned o cers, other ranks and non- combatants (enrolled). It is not in dispute that the provisions of this chapter applied to the respondent in this and other appeals. Regula- tion 113 with which we are concerned reads 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, he may at the discretion of President 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) As individual who is dis- charged under the provisions of Army Act the rules made thereunder remains eligible for pension or gratu- ity under these Regulations."
Regulation 16(a) falls in Chapter II of the Regulations which relates to the commissioned o cers. The said regulation, in so far as it is relevant, reads as follows :
\16(a) When an o cer who has to his credit the minimum period of qualifying service required to earn pension, is cashiered or dismissed or removed from service, his pension may, at the discretion of the Presi- dent be either forfeited or be granted at a rate not exceeding that for which he would have otherwise quali ed had he retired on the same date."
8. Referring to the said regu- lations this Court has held in Maj. (Retd.) Hari Chand Pahwa v. Union of India and Anr., [1995] Supp. 1 Supreme Court Cases 221 and Union of India v. Brig. P.K. Dutta (Retd.), that even if these regulations are not statutory the same are still bind- ing because pensionary bene ts are payable only under these regulations and, therefore, the same can be for- feited in the manner and circum- stances as provided for by the said
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regulations.
9. The rst sentence of Regula- tion 113(a) clearly provides that an individual who is dismissed under the provisions of the Army Act is inel- igible for pension or gratuity in re- spect of all previous service. In other words a person like the respondent to whom Section 113(a) applies will not be entitled to receive any pen- sion on an order of his dismissal be- ing passed. Clause (b) of Section 113 makes a distinction in the case of a person who is discharged, and not dismissed, under the provisions of the Army Act. In the case of dis- charge a person remains eligible for pension or gratuity under the said regulation. The latter part of Sec- tion 113(a) provides that in excep- tional cases the President may, at his discretion, grant service pension or gratuity at a rate not exceeding that for which an individual would have otherwise quali ed had he been dis- charged, and not dismissed, on the same day. Reading Regulation 113 it is clear that in the case of a ju- nior commissioned o cer or a per- son belonging to other rank or a non- combatant (enrolled), he would be- come ineligible for grant of pension or gratuity on the passing of an or- der of dismissal. The disentitlement to pensionary bene ts is the normal result of a dismissal order. But the President may, in exceptional cases, at his discretion, order the grant of pension. Therefore, if no order is passed by the President then the re- sult is that the dismissed junior com- missioned o cer remains disentitled to pension or gratuity.
10.The terms of Regulation 16(a) are clearly di erent from Reg- ulation 113(a). According to Regula- tion 16(a) when an o cer, as de ned in Section 3(xviii) of the Army Act, 1950, is cashiered or dismissed or re- moved from service then the Presi- dent has the discretion of either for- feiting his pension or ordering that he be granted pension at a lesser rate. The dismissal, removal etc. of
acommissioned o cer does not, in other words automatically result in the forfeiture or lessening of his pen- sion. Power is, however, given to the President that in such a case he may either direct the forfeiture of the o cer's pension or reduction in the rate thereof, Major Sodhi's case was one which dealt with the question of forfeiture of a commissioned o cer's pension on his being dismissed from service. It is in the context of Reg- ulation 16(a) that it was observed that as no order was passed under the said regulation, therefore, the of-cer concerned would be entitled to the receipt of full amount of pension or gratuity which would normally be payable to him.
11.The question with regard to forfeiture of pension in the case of a junior commissioned o cer to whom the provisions of Regulation 113 ap- plied came up for consideration be- fore this Court in Union of India and Ors. v. R.K.L.D. Azad, [1995] Supp 3 Supreme Court Cases 426. After referring to Regulation 113(a), this Court at page 429 observed as fol- lows :
\In view of the plain language of the above regulation the respon-
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dent cannot lay any legal or legiti- mate claim for pension and gratuity on the basis of his previous service as, admittedly, he stands dismissed in accordance with Section 73 read with Section 71 of the Act. The sec- ond question must, therefore, be an- swered in the negative."
12.Sh. Prem Malhotra, learned counsel for the respondent submitted that withholding the pension when the respondent had been court mar- tialed and dismissed would amount to double jeopardy. It was submit- ted that Under Section 71(j) of the Army Act one of the punishments which could be in icted after a court martial was that of \forfeiture of pay and allowances for a period not ex- ceeding three months for an o ence committed on active service". Elabo- rating this contention, it was submit- ted that like dismissal from service as provided by Clause (e) of Section
71of the Army Act, forfeiture of pay and allowances was one of the pun- ishments which could be imposed un- der Clause (j). If such a punishment of forfeiture had been awarded, the respondent would have continued to remain in service but by ordering the dismissal from service Under Section 71(e) he is also being deprived, un- der Regulation 113(a), of the pension which he had earned.
13.We nd no merit in this contention. Section 71 of the Army Act provides for di erent types of punishments which could be in icted in respect of an o ence committed by a person subject to the Army Act and convicted by courts mar- tial. The punishments are of vary-
ing degrees, from death as provided by Section 71(a) to stoppage of pay and allowance as provided by Section 71(h). The punishment of forfeiture of pay and allowances as provided by Section 71(j) is of a lesser nature than that of dismissal from service as pro- vided by Section 71(e). When pun- ishment Under Section 71(j) is im- posed no recourse can be had to Reg- ulation 113(a), because the said reg- ulation applies only if an order of dismissal is passed against the per- son concerned. In other words Sec- tion 71(j) and Regulation 113(a) can- not apply at the same time. On the other hand when the punishment of dismissal is in icted Under Sec- tion 71(e) the provisions of Regula- tion 113(a) become attracted. The result of punishment is that the ben- e t of pension or gratuity which is given under the regulation is taken away. The order of dismissal under the provisions of the Army Act in the case of an employee like the re- spondent would make him ineligible for pension or gratuity. For a person to be eligible to the grant of pension or gratuity it is imperative that he should not have been dismissed from service. The dismissal under the pro- visions of the Army Act is, therefore, a disquali cation for getting pension or gratuity.
14. It was also submitted by Sh. Malhotra that Regulation 113(a) was discriminatory and, further, pension which is earned becomes the prop- erty of the person concerned and the same cannot be taken away. But no such contention was raised be- fore the High Court. In any case we
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see no merit in the said contention. Firstly, junior commissioned o cers and commissioned o cers belong to di erent classes. They are not sim- ilarly situated. Moreover pension is granted by the rules and regu- lations which can and do provide for the circumstances which would make a person ineligible to receive the same. Dismissal makes a ju- nior commissioned o cer disentitled to receive pension or gratuity. Reg- ulation 113(a) is not in any way in- valid.
15. For the aforesaid reasons we come to the conclusion that unlike Regulation 16(a) which applies to the commissioned o cers, in the case of non-commissioned o cers other ranks and non-combatants (enrolled) the dismissal of such a person under the Army Act would ipso facto ren- der him ineligible for pension or gra- tuity. The President, however, has
a right, in the case of a person dis- missed under the provisions of the Army Act but in exceptional circum- stances and at his discretion to grant service pension at a rate not exceed- ing that for which the individual con- cerned would have otherwise quali-ed had he been discharged on the same day.
16. In view of the aforesaid this appeal is allowed, the judgment of the High Court is set aside the result of which would be that the writ pe- tition led by the respondent would stand dismissed. There will be no or- der as to costs.
Civil Appeal Nos. 3613/94, 7467/94 and 4852 of 1995.
17. The question involved in these appeals is identical to the one in Civil Appeal No. 3609 of 1996. For the reasons stated therein these appeals are also allowed but with no order as to costs.
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Chapter 29
Union of India v. Hav Clerk SC Bagari 1999
Union of India & Ors v. No. 664950 Im Havildar/Cierk Sc Bagari [1999] INSC 150 (15 April 1999)
Syed Shah Mohammed Quadri,
S.N. Phukan. S.N.Phukan, J.
This appeal is directed against the full bench decision dated 24.12.1993 of the High Court of Hi- machal Pradesh in Civil Writ peti- tion No, 747 of 1991.
For the purpose of appreciating the points urged in this appeal we may brie y state the facts. The re- spondent appeared in person before the High Court. In this Court though notices were issued he did not ap- pear hence the matter was taken up for hearing in his absence. The re- spondent is a Havildar/Clerk in In- dian Army and he was interested in prosecuting his studies further for ob- taining higher educational quali ca- tions such as post-graduation in law but he felt handicapped because of the provisions contained in Army In- struction namely Army Order No. 11 of 1987 according to which only Reg-
ular Commissioned O cers can be granted extra-ordinary leave subject to certain conditions and not per- sons like the petitioner, who is not an o cer. Therefore, he challenged the said Army Order before the High Court on the grounds of discrimina- tion, without any lawful basis etc.
Before the High Court the present appellants took the stand that study leave is granted to a Regular Commissioned O cer to get higher studies having a direct and close connection with the spheres of his duties. It was also stated that the nature of duties of Ju- nior Commissioned O cers and non- Commissioned O cers is di erent as compared to Regular Conimissioned O cers. The appellants took the stand that the matter of grant or refusal of study leave is purely dis- cretionary. The allegation of dis- crimination was denied. It was also sated that for Junior Commissioned O cers and Noncommissioned Of-cers there are institutions of the
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appellants where these O cers are trained.
We nd from the judgment that & prayer made on behalf of the present appellants for adjournment was denied on the ground stated in the judgment and the writ petition was disposed of without hearing the learned counsel for the appellants.
The High Court relying on the decisions of this Court came to thending that the duties of clerical na- ture are also important and there- fore, rejected the stand of the ap- pellants and held that higher educa- tional quali cation is also necessary for clerical sta .
According to the High Court the present classi cation for granting study leave was not founded on an in- telligible di erentia and the same has also no relation to the object sought to be achieved and bene t of study leave must be made available equally to all classes of above o cers of In- dian Army.
We have heard Mr. P.N. Mishra, learned Senior counsel for the appel- lant.
Before entering into the reasoning given by the High Court let us nowrst consider the scope and ambit of Articles 14 and 16 vis-a-vis di erent classes of employees.
We may refer to:
In All India Station Masters' and Assistant Station Masters' Associa- tion Delhi and others Versus General Manager, General Railway and oth- ers AIR 1960 SC 384 = 1960 (Vol.II SCR 311 while considering Article 16 of the Constitution the Constitu-
tion Bench of this Court inter alia held that equality means - equality as between members of the same class of employees, and not equality be- tween members of separate, indepen- dent classes.
Similar views were expressed by the Constitution Bench of this Court in Jagannath Prasad Sharma Ver- sus The State of Uttar Pradesh and others AIR 19661 SC 1245 = 1962 (Vol.I) SCR 151 and in paragraph 15 it was inter alia held that equal pro- tection of the laws does not postu- late equal treatment of all persons without distinction, it merely guar- antees the application of the same laws alike and without discrimina- tion to all persons similarly situated.
In The State of Mysore and an- other Versus P. Narasinga Rao AIR 1968 SC 3349 = 1966 (Vol. I) SCR 407 this Court considered the va- lidity of the Rules and it was inter alia held that it is well settled that though Article 14 forbids class legis- lation, it does not forbid reasonable classi cation for the purposes of leg- islation and when any impugned rule or statutory provision is assailed on the ground that it contravenes Arti- cle 14, its validity can be sustained if two tests are satis ed namely classi-cation on which it is founded must be based on an intelligible di eren- tia which distinguishes persons or things ground together from others left out of the group, and the second test is that the di erentia in question must have a reasonable relation to the object sought to be achieved and in other words there must be some rational nexus between the basis of
353
classi cation and the object intended to be achieved. It was also held that Articles 14 and 16 form part of the same constitutional code of guaran- tees and supplement each other and in other words Article 16 is only an instance of the application of the gen- eral rule of equality laid down in Ar- ticle 14 and it should be construed as such and, therefore, there is no de- nial of equality of opportunity unless the person who complains of discrim- ination is equally situated with the person or persons who are alleged to have been favoured.
In the decision of this Court in Indian Railway SAS (1998 (2) SCC 651), it was held that there can be many criteria for classi cation of posts such as administrative proce- dure and others which have to be taken into consideration by the au- thorities concerned before deciding on the classi cation.
Situated thus, broadly speaking, concept of equality has an inherent limitation arising from very nature of the guarantee under the Consti- tution and those who are similarly circumstanced are entitled to equal treatment. If there is a rational classi cation consistent with the pur- pose for which such classi cation was made, equality is not violated. Arti- cle 16 of the Constitution does not bar a reasonable classi cation of em- ployees or reasonable tests for selec- tion. Equality of opportunity of em- ployment means equality as between members of the same class of employ- ees and not equality between mem- bers of separate independent classes.
Mr. Mishra, learned counsel for
the appellant, has drawn our at- tention to Clauses (XII), (XV) and (XVIII) of Section 3 of The Army Act, 1950. These clauses de ne 'Junior Commissioned O cer', Non- Commissioned O ce' and 'O cer'. Clause (XVIII) of Section 3 of The Army Act, 1950, while de ning the term 'O cer', has clearly stated that the O cer or Non-Commissioned Of-cer. Relying on the above de ni- tions, Mr. Mishra has rightly pointed out that legislature has classi ed the personnel of the Armed Forces into di erent categories and this classi - cation has not been challenged. We are of the opinion that legislature while creating di erent classes of of-cers has classi ed them on the ba- sis of the requirement of armed forces and thus this classi cation cannot be said to be arbitrary. If pay, perks and other privileges granted to these of-cers are di erent, we are, therefore, of the opinion that there is no ques- tion of violation of provisions of arti- cles 14 and 16 of the Constitution.
Now the question is whether the impugned order, namely, Army Or- der No. 11 of 1987 is discriminatory. We quote below the relevant portion of the order as quoted in the im- pugned judgment of the High Court :- Rule 1 and 2 are given below :- \1. All regular O cers will be eligi- ble for the grant of extra leave known as Study Leave for pursuing special studies in India or Ex-India under the conditions speci ed in para 2 be- low.
2. Conditions for the grant of study leave are as under :
(a) Study leave will be admissible
| 354 | Union of India v. Hav Clerk SC Bagari 1999 |
to O cers of all Arms and Services.
(b) Study Leave may be granted to an o cer enabling him to undergo, in or Ex-India, a non academic full time regular course/programme/doctoral stud- ies leading to a recognised formal diploma/degree in institutions recog- nised by the Ministry of Education, Science and Technology, certi ed by Army Headquarters as enhancing the usefulness as an o cer.
Study Leave will not be granted for correspondence courses, part time courses and attending night classes.
(c) Study Leave shall not be granted to an o cer who is due to retire from service within 5 years or the date of return to duty from study leave in respect of Cols and above, and 7 years for Lt.Cols and below. Residual service will be calculated in the rank of the o cer at the time of sanction of study leave.
Study leave shall not be granted to an o cer who has rendered less than 10 years service. However, the minimum service can be lowered un- der special service can be lowered un- der special circumstances on merits of the case by the sanctioning au- thority. Residual service for battle casualties and permanent low med- ical category o cers whose category is either attributed or aggravated due to uncongenial military service shall be three years.
(d) The maximum period of study leave will be up to 24 months. It may be extended by a period of two months annual leave (if not al- ready availed) of the year in which
study leave commences, plus an addi- tional two three years cycle spanning the study leave period, if so required for the speci c study being under- taken. Furlough rates of pay will be admissible during furlough leave when granted. The maximum period of study leave, including annual leave and furlough will be 28 months dur- ing the entire service of the o cer.
(e)Study leave Ex-India will or- dinarily be admissible for those non- academic courses which are not avail- able at any University or Institution in India.
(f)Study leave will be admissi- ble not more than twice throughout the service, subject to the over all 28 months limit prescribed in sub-para
(d)above.
(g)Study leave vacancies will belled up."
\The application for approving study leave has to be scrutinised by the Screening Committee as per the impugned order and priorities which are to be followed by the Screening Committee are quoted below :-
(a)Usefulness of the subject of study to Arms/Service.
(b)Subjects contributing to an o cer's employability in the service.
(c)Residual Service of the o cer from the point of view of utility of his education to the service.
(d)O cers who have obtained admission in recognised Universities or Institutions will be preferred.
(e)O cers who have been away from regimental duties for the last two years after specialised courses or
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post graduate courses will be given lower priority.
(f)O cers with a good career pro le will be given preference.
(g)Battle casualties and disabled o cers who have limited scope for furthering their career will be given preference." The High Court after stating the law laid down by this Court in various decisions including Maneka Gandhi v. Union of India and others (AIR 1978 SC 597), Ajay Hasia v. Khallid Mujib Sehravardi and others (AIR 1981 SC 487), R.D. others (AIR 1979 SC 1628), Union of India and another etc.
Army Order is not based on rea- sonable classi cation and denial of study leave to Junior Commissioned O cers, Non-Commissioned O cers and other ranks is not only irrational and arbitrary and the classi cation is not founded on an intelligible di er- ent but the same also has no rational relation with the object sought to be achieved.
According to High Court, bene t of study leave must be made applica- ble equally to all.
The Army authorities have given reasons for not making available the bene t of study leave to the other categories of o cers except Commis- sioned O cers. It has been cate- gorically stated that for o cers of other rank, there are other institu- tions where courses are conducted for these categories of personnel and by sending them for these courses, proper care is taken to ensure ef-ciency in the armed forces. In fact, the petitioner has admitted, as
stated in the writ petition, that two weeks' Computer Course in Jodh- pur University was organised by the Army Authorities.
It has also been stated in the counter that there cannot be any dis- pute that character and duties of Ju- nior Commissioned O cers and Non- Commissioned O cers are di erent as compared to that of regular Com- missioned o cers. If the competent authority thought it t and proper that case for study leave for Com- missioned O cers should be consid- ered and this bene t should not be given to other categories of o cers, as for this category Army Authorities take adequate care for training them in their own institutions or outside, it cannot be said that impugned Or- der No.11 of 1987 is arbitrary or ir- rational. The object as stated in the counter, of granting study leave is to enhance the knowledge of Commis- sioned O cers who have an impor- tant role to play not only to main- tain discipline but also for perform- ing their duties as Commissioned Of-cers.
Therefore, it cannot be said that Army Order No.11 of 1987 was not founded on intelligible di erentia and it has no relation with the object sought to be achieved and we hold that the Order in question is not vi- olative of Article 14 of the Constitu- tion.
For the reasons stated above, wend merit in the appeal and accord- ingly it is allowed by setting aside the impugned order. Costs on the par- ties.
| 356 | Union of India v. Hav Clerk SC Bagari 1999 |
Chapter 30
Union Of India v. Himmat Singh Chahar 1999
| Union Of India & Ors v. Him- | the impugned judgment quashed the | |||||||
| mat Singh Chahar on 12 May, | said order in the Court Martial Pro- | |||||||
| 1999 Author: | Pattanaik Bench: | ceeding. In the Court Martial the re- | ||||||
| G.B.Pattanaik, K.T.Thomas | spondent was found guilty of o ence | |||||||
| PETITIONER: | under Section 354 and was sentenced | |||||||
| to imprisonment for 9 months, and | ||||||||
| UNION OF INDIA & ORS. | ||||||||
| his services were terminated. Facts | ||||||||
| v. | ||||||||
| culminating in the aforesaid order of | ||||||||
| RESPONDENT: | the High Court may be brie y stated | |||||||
| HIMMAT SINGH CHAHAR | as under. | |||||||
| DATE | OF | JUDGMENT: | The | respondent | had joined | the | ||
| Indian | Navy on | 24.6.78 and | in | |||||
| 12/05/1999 | ||||||||
| November 1990 he was a petty o - | ||||||||
| BENCH: | ||||||||
| cer (Telegraphist) in the submarine | ||||||||
| G.B.Pattanaik, K.T.Thomas | and was thus away from his quar- | |||||||
| JUDGMENT: | ters on the shore. On 28.11.1990 one | |||||||
| PATTANAIK,J. | R.K. Sharma, another o cer belong- | |||||||
| ing to Navy came with his wife Mrs. | ||||||||
| The Union of India in this appeal | ||||||||
| Nirmala Sharma and having failed in | ||||||||
| has challenged the judgment dated | his attempt to get any vacant quar- | |||||||
| 12.11.1993, of | the | Division Bench | ters moved into Quarter No. | 3B | ||||
| of Bombay High Court in Crimi- | and shared the same with the fam- | |||||||
| nal Writ Petition No. | 1511 of 92. | ily members of the respondent. | On | |||||
| The respondent Himmat Singh Cha- | 3.12.90 said respondent took permis- | |||||||
| har, who was serving as a petty | sion from his authorities to leave sub- | |||||||
| High Court assailing the order passed | marine and come to the shore for tak- | |||||||
| against him in the Court Martial | ing his family members to the hos- | |||||||
| Proceedings and the High Court by | ||||||||
| 358 | Union Of India v. Himmat Singh Chahar 1999 |
pital for medical check up and early morning came to his quarters and left for the hospital with his wife and two sons. It is alleged that he returned back home at about 9.00 a.m. while Mrs. Nirmala Sharma was alone and tried to outrage her modesty when said Mrs. Nirmala Sharma opened the door. Mrs. Sharma then some- how extricated from the clutches of the respondent and rushed to the house of one Mrs. Mandal whom she knew earlier and persuaded her to intimate her husband who was also away from the quarters so that he can come back. Mrs. Sharma did not intimate about the aforesaid crim- inal assault on her by the respon- dent to said Mrs. Mandal though she insisted that she will not leave her house until and unless her hus- band comes. Her husband came on the next day i.e. 4.12.90 to whom Mrs. Sharma narrated all that hap- pened on the previous day where- after a complaint was made to the su- perior authority against the respon- dent alleging that modesty of Mrs. Nirmala Sharma had been outraged by the respondent. On the basis of the complaint a Court Martial Pro- ceeding was initiated and in the said proceeding the respondent was found guilty of the charge under Section 354 of Indian Penal Code and Section 77(2) of the Navy Act, 1957 (here- inafter referred to as 'an Act') and was directed to be kept under im- prisonment for the term of 24 cal- endar months and be dismissed from the Naval services. This order was of 16th May, 1991. Against the afore- said order the respondent moved the Chief of the Naval Sta under Sec-
tion 163(1) of the Act and the Chief of the Naval Sta though sustained the conviction but reduced the pun- ishment of imprisonment for a term of 9 calendar months. The punish- ment of removal from service, how- ever, was maintained. The respon- dent then moved the Central Gov- ernment for re-consideration of the matter. But the Central Government having con rmed the decision of the Chief of Naval Sta the respondent moved the High Court by way of a Criminal Writ Petition. By the im- pugned judgment the High Court of Bombay considered the evidence of Mrs. Nirmala Sharma and by way of sifting her evidence came to hold :-
\After a meticulous examination of the record and particularly the ev- idence of Nirmala that the credibil- ity of the evidence is such that the charge cannot be said to have been brought home on the basis of this ma- terial."
The High Court, therefore, ulti- mately came to hold that the author- ities were wrong in having recorded the guilt against the respondent on the strength of material that was adduced before the Court Martial Proceedings. The Court ultimately quashed the conviction and sentence passed against the respondent in the Court Martial Proceeding ,and hence the present appeal.
Mr. Ashok Bhan, learned coun- sel appearing for the Union of In- dia contended with vehmence that the Court Martial Proceeding hav- ing been continued in accordance with the procedure laid down un- der the Navy Act and the Compe-
359
tent Authority on the basis of the evidence of Mrs. Nirmala Sharma having found the respondent guilty of charge under Section 354 and punish- ing him thereunder, the High Court mis-directed itself in exercise of its jurisdiction under Article 226 of the Constitution to re-appreciate the ev- idence and in coming to the conclu- sion that the Authorities committed error in recording the nding of guilt against the respondent on the ba- sis of the evidence of Mrs. Nirmala Sharma. According to Mr. Bhan, the learned counsel, though a judi- cial review against the order of the Competent Authority in the Court Martial Proceeding is available but the said judicial review could not clothe the High Court with the ju- risdiction to re-appreciate the evi- dence and substitute the ndings of the Court Martial Proceedings by its own. According to Mr. Bhan unless the Court Martial Proceed- ing is found to have contravened any mandatory provisions of the Act or Rules or can be said to be in viola- tion of the principles of natural jus- tice or can be said to be without ju- risdiction, it would be, impermissible for the High Court to interfere with the conclusion on the ground of su - ciency of evidence. In support of this contention reliance has been placed on the recent decision of this Court in the case of Union of India & Ors. v. Major A. Hussain - Judgment To- day 1997 (9) S.C. 676. Mr. Uday U. Lalit, learned counsel appearing for the respondent on the other hand contended that it is no doubt true that the High Court would not be justi ed in interfering with the nd-
ings of the Authority in Court Mar- tial Proceeding by appreciation of ev- idence ordinarily but if the evidence is of such nature that no reasonable man can come to the conclusion that an o ence under Section 354 of the Indian Penal Code has been commit- ted then certainly the Court would be justi ed in interfering with thendings arrived at by the Authorities in the Court Martial Proceedings and judged from that stand point there has been no in rmity with the im- pugned judgment of the High Court.
In view of the rival submissions at the Bar the short question that arises for consideration is what would be the extent of the jurisdiction in exer- cising power under Article 226 of the Constitution over the ndings of the Authority in Court Martial Proceed- ing? The Defence personnel serv- ing in Army, Navy or Air force when commit any o ence are dealt with by the special provisions contained in the Army Act or the Navy Act or the Air Force Act and not by the nor- mal Procedure Code. The said Navy Act is a complete code by itself and prescribes the procedure to be fol- lowed in case it is decided that an o cer should be tried by Court Mar- tial. The Act also provides su cient safeguard by way of further appeal to the Chief of the Sta and then ulti- mately to the Union Government.
Since the entire procedure is pro- vided in the Act itself and the Act also provides for a further consid- eration by the Chief of the Naval Sta and then by the Union Gov- ernment then ordinarily there should be a nality to the ndings arrived
| 360 | Union Of India v. Himmat Singh Chahar 1999 | |||
| order of an inferior Tribunal. | This | |||
| at by the Competent Authority in | ||||
| the Court Martial Proceeding. It is | being the parameter for exercise of | |||
| of course true that notwithstanding | power of judicial review against the | |||
| the nality attached to the orders | ndings of a Competent Authority | |||
| of the Competent Authority in the | in a Court Martial Proceeding, and | |||
| Court Martial Proceeding the High | applying the same to the impugned | |||
| Court is entitled to exercise its power | judgment of the High Court we have | |||
| of judicial review by invoking juris- | no hesitation to come to the con- | |||
| diction under Article 226 but that | clusion that the High Court over- | |||
| would be | for a limited purpose of | stepped its jurisdiction in trying to | ||
| nding out whether there has been | re-appreciate the evidence of Mrs. | |||
| infraction of any mandatory provi- | Nirmala Sharma and in coming to | |||
| sions of the Act prescribing the pro- | the conclusion that her evidence is | |||
| cedure which has caused gross mis- | not credible enough to give a nding | |||
| carriage of justice or for nding out | of guilt of the respondent of a charge | |||
| that whether there has been viola- | under Section 354. We have also pe- | |||
| tion of the principles of natural jus- | rused the statement of Mrs. Nirmala | |||
| tice which vitiates the entire proceed- | Sharma and the conclusion becomes | |||
| ing or that the authority exercising | inescapable on the basis of the said | |||
| the jurisdiction had not been vested | statement of Mrs. Nirmala Sharma | |||
| with jurisdiction under the Act. The | that the respondent has been rightly | |||
| said power of judicial review cannot | found to have committed o ence un- | |||
| be a power of an Appellate Author- | der Section 354 by the Authorities in | |||
| ity permitting the High Court to re- | the Court Martial Proceedings. | |||
| appreciate the evidence and in com- | In the aforesaid premises, we set | |||
| ing to a conclusion that the evidence | ||||
| aside the impugned judgment of the | ||||
| is insu cient for the conclusion ar- | Bombay High Court and dismiss the | |||
| rived at by the Competent Author- | Criminal Writ Petition led by the | |||
| ities in Court Martial Proceedings. | respondent and a rm the ultimate | |||
| At any rate it cannot be higher than | order passed by the Competent Au- | |||
| the jurisdiction of the High Court ex- | thority in the Court Martial Proceed- | |||
| ercised under Article 227 against an | ing and this appeal is allowed. | |||
Chapter 31
Union of India v. Sadha Singh 1999
Union of India And Others v. Sadha Singh on 25 October, 1999 Author: Shah Bench: K.T.Thomas, M.B.Shah
PETITIONER:
UNION OF INDIA AND OTH- ERS
| v. | ||
| RESPONDENT: | ||
| SADHA SINGH | ||
| DATE | OF | JUDGMENT: |
| 25/10/1999 | ||
| BENCH: | ||
K.T.Thomas, M.B.Shah
JUDGMENT:
Shah,J.
Leave Granted.
This appeal is led against the judgment and order dated 22.9.1998 passed by the High Court of Punjab & Haryana at Chandigarh in Crim- inal Writ Petition No.1752 of 1997led by the respondent.
Respondent was awarded life im-
prisonment and dismissed from ser- vice by the General Court Martial after being tried for the o ence un- der Section 302 I.P.C. and under Sec- tion 69 of the Army Act, 1950. He preferred a writ petition in the High Court for his immediate release from the imprisonment on the ground that he has undergone imprisonment ex- ceeding 14 years. The High Court arrived at the conclusion that in view of the decision in Ajit Kumar etc. v. Union of India, 1987 Supp. SCC 493 the respondent would be entitled to remissions earned in the jail and thereby respondent spent total pe- riod of 15 years 8 months and 29 days of imprisonment which obviously ex- ceeded 14 years. The Court, there- fore, directed immediate release of the respondent. That order is chal- lenged by ling this appeal.
It has been pointed out by the learned counsel for the appellant that respondent has not undergone actual imprisonment for 14 years. Before the High Court, it was admitted that
| 362 | Union of India v. Sadha Singh 1999 |
respondent had spent 11 years and 1 month in actual custody, 1 year 7 months and 29 days in pre-trial custody and has earned 4 years re- mission in the jail. It is, therefore, submitted that the order passed by the High Court is, on the face of it, against the provision of
Section 433A Cr.P.C. and its in- terpretation given by this Court in the case of Maru Ram. v. Union of India & Anr., (1981) 1 S.C.R. 1196.
A Constitution Bench of this Court in Maru Rams case (Supra) held that Section 433A, Cr.P.C. over- rides all other laws which reduce or remit the term of life sentence and mandates that minimum of 14 years of actual imprisonment should be undergone by convict where a sen- tence of life is imposed for an of- fence for which death is one of the punishments provided by law and remissions vest no right to release when sentence is for life imprison- ment. The Court also reiterated that imprisonment for life lasts un- til the last breath and whatever be the length of remission earned, the prisoner can claim release only if the remaining sentence is remitted by the Government. The Court further neg- atived the contention that Section 5 of Criminal Procedure Code saves all remissions, short-sentencing schemes as special and local laws and, there- fore, they must prevail over the Code including Section 433A. For that pur- pose, Section 5 was referred to which is as under:-
Nothing contained in this Code shall, in the absence of a speci c pro- vision to the contrary, a ect any spe-
cial or local
law for the time being in force, or any special jurisdiction or power conferred, or any special form of pro- cedure prescribed, by any other law for the time being in force.
The Court observed that broadly speaking, the said Section consists of three components (i) the Proce- dure Code generally governs matters covered by it; (ii) if a special or lo- cal law exists covering a certain area, such law will be saved and will pre- vail over the provisions in the Code (The short-sentencing measures and remission schemes promulgated by the various States are special and lo- cal laws); and (iii) if there is a spe- ci c provision to the contrary, then that will over-ride the special or lo- cal law. After considering the sub- missions and decisions cited by the parties, the Court held thus:-
The Criminal Procedure Code is a general Code. The remission rules are special laws but Section 433A is a speci c, explicit, de nite provisions dealing with a particular situation or narrow class of cases, as distin- guished from the general run of cases covered by Section 432 Cr.P.C. Sec- tion 433A picks out of a mass of im- prisonment cases a speci c class of life imprisonment cases and subjects it explicity to a particularised treat- ment. It follows that Section 433A applies in preference to any special or local law because Section 5 ex- pressly declares that speci c provi- sions, if any, to the contrary will pre- vail over any special or local law. We have said enough to make the point that speci c is speci c enough
363
and even though special to speci c is near allied and thin partition do their bounds divide the two are di erent, Section 433A escapes the exclusion of Section 5.
In the present case, respondent was convicted under Section 69 of the Army Act, 1950 for the o ence of murder. It is true that Army act is a special act inter alia providing for in- vestigation, trial and punishment for the o ences mentioned therein by a special procedure. Section 177 em- powers the Central Government to make rules in respect of prisons and prisoners. Sections 179 to 190 pro- vide for pardon, remissions and sus- pension of the sentence. There is no speci c provision similar to Section 433A or contrary to it. Hence, Sec- tion 433A would operate in the eld and a prisoner, who is undergoing sentence of imprisonment for life and is convicted for an o ence for which death is one of the punishments pro- vided by law or where a sentence of death imposed on a person has been commuted under Section 433(1) Cr.P.C. to imprisonment for life, has to serve at least 14 years of impris- onment excluding remissions earned in the jail.
However, learned counsel for the respondent submitted that in the case of Ajit Kumar (Supra), this Court dealt with a similar question and held that prisoners, who have been convicted and sentenced by the General Court Martial under the Army Act and who have been lodged in civil prison, were not entitled to the bene t of set-o provided under Section 428 Cr.P.C. In
that case, this Court held that in view of the provisions in the Army Act, which is a special enactment containing elaborate procedure for trial of the persons covered therein, prisoners, who have been convicted and sentenced by the General Court Martial under the Army Act are not entitled to get bene t of set-o under Section 428 of the Code. In the said case, the Court considered Section 167 of the Army Act, which provides that the term of sentence imposed by a Court Martial shall be reckoned to commence on the day on which the original proceedings were signed by the Presiding O cer or by the O - cer holding the Court Martial as the case may be. In view of this speci c provision, the Court held that bene t of Section 428 cannot be claimed by the person convicted under the pro- visions of Army Act. In our view, the said decision will have no bearing on the applicability of Section 433A Cr.P.C., as in the Army Act there is no speci c or contrary provision cov- ering the same area. Section 433A, Cr.P.C. is a special provision applica- ble to all the convicts, who are under- going imprisonment for life as pro- vided thereunder. For such convicts, it puts an embargo for reduction of sentence below 14 years of actual im- prisonment. We would also mention that after the decision in Ajit Kumar (Supra), Army Act is amended (by Act
No.37 of 1992) and Section 169A is added, which is similar to Section 428 of Criminal Procedure Code.
In view of the above, as the re- spondent has not completed 14 years
| 364 | Union of India v. Sadha Singh 1999 | ||
| of actual imprisonment, | the | The appeal is allowed accord- | |
| order | |||
| passed by the High Court is quashed | ingly. | ||
| and set- aside. | |||
Chapter 32
Union Of India v. Charanjit S. Gill 2000
Union Of India & Anr v. Cha- ranjit S. Gill & Ors on 24 April, 2000 Author: Sethi Bench: G Pattanaik, R Sethi, S V Patil.
CASE NO.:
Special Leave Petition (civil) 7347 of 1999
PETITIONER:
UNION OF INDIA & ANR.
v.
RESPONDENT:
CHARANJIT S. GILL & ORS.
DATE OF JUDGMENT: 24/04/2000
BENCH:
G.B. Pattanaik, R.P. Sethi &
Shivaraj V. Patil.
JUDGMENT:
SETHI, J.
Leave granted. Finding that the Judge Advocate was lower in rank to the accused facing trial before a General Court Martial (hereinafter referred to as \GCM"), the Division
Bench of the High Court set aside the order of the Trial Court and the en- tire Court Martial proceedings con- ducted against the respondent No.1. The Bench, however, observed that the quashing of the proceedings of the GCM will not prevent the au- thorities concerned to initiate fresh court martial proceedings if they are so advised in accordance with law and also in the light of the judgment delivered. Feeling aggrieved by the aforesaid judgment the present ap- peal has been led with a prayer for setting aside the impugned judgment and upholding the order of the GCM as well as the learned Single Judge.
The relevant and almost admit- ted facts for determining the con- troversy in this appeal are that therst respondent joined the Indian Army as a Commissioned O cer in 1971 and was promoted to the rank of Major in 1984. He was posted at Fort William, Calcutta in April, 1990. While attached with 235 IWT company, Engineers, the respondent
| 366 | Union Of India v. Charanjit S. Gill 2000 |
No.1 was alleged to have absented himself without leave on four occa- sions which was an o ence under Sec- tion 39(1) of the Army Act. He was also charged under Section 63 of the Army Act for violation of good or- der and military discipline. A GCM was convened by the General O cer Commanding (GOC), Bengal Area by his order dated 23rd December, 1991. The court martial comprised of Col.Rabinder Bahadur Singh as Presiding O cer and Col. Kun- jachen Puthenveetil Sebastian, Col. Prakash Nambiar, Col. Mahitosh Deb and Major Kadam Netaji Ke- sharuo as Members. Capt. Vashishta Arun Kumar, Dy. Assistant Judge Advocate General was appointed as Judge Advocate in the court martial proceedings. The respondent No.1 was found guilty of four out of ve charges by the GCM and was sen- tenced to forfeit six months service for the purposes of promotion. The order of conviction and sentence was, however, made subject to the con r- mation by the Con rming Author- ity to whom the proceedings were transmitted by the GCM in terms of Section 153 of the Army Act. The Con rming Authority felt that the sentence awarded to the respondent No.1 by the GCM was grossly inad- equate and inappropriate which re- quired review. The order of the Con rming Authority dated 2.5.1992 was conveyed to the GCM which on 19.5.1992 upon, re-consideration re- voked the earlier sentence and passed a fresh order of sentence of dismiss- ing the respondent No.1 from service. This order was also made subject to con rmation by the Con rming Au-
thority.
Aggrieved by the order of con- viction and sentence passed by the GCM, the respondent No.1 led writ petition being CO No.7102(W) of 1992 in the High Court at Calcutta praying therein for quashing orders dated 23.12.1991, 10.2.1992, 2.5.1992 and 19.5.1992. At the time of ad- mission of the writ petition a learned Single Judge of the High Court passed an interim order on 29th May, 1992 directing the appellants not to con rm the impugned order of dis- missal and not to take any steps against respondent No.1, without the leave of the Court. The interim order was, however, vacated by the learned Single Judge on 16.12.1996 allowing the Con rming Authority to com- plete the process of con rmation and passing appropriate orders. Conse- quently, the GCM proceedings were con rmed on 17.12.1996 and the re- spondent No.1 was dismissed from service on 18.12.1996. The writ pe- tition led by the rst respondent was dismissed by the learned Sin- gle Judge on 3rd July, 1997. Feel- ing aggrieved by the judgment of the learned Single Judge the respon- dent No.1 preferred appeal being MAT No.2181/97 before the Division Bench which was allowed vide the or- der impugned in this appeal.
In his writ petition the respon- dent No.1 is stated to have alleged that in the year 1987-88 when he was posted as Garrison Engineer in Jammu & Kashmir State un- der the Northern Command, he had pointed out to the higher authori- ties some embezzlement instances in-
| 367 | ||||||||
| November, 1991 disclosed the com- | ||||||||
| volving Rs.22.49 lacs in which Ma- | ||||||||
| jor S.K. Datta and Col. | S.C. Gu- | mission of o ences punishable con- | ||||||
| lati were allegedly involved. He al- | trary to Sections 39(a) and 63 of the | |||||||
| leged that because of his reporting | Army Act. The respondent No.1 in | |||||||
| the case of embezzlement he incurred | his petition had prayed for quashing | |||||||
| animosity of the persons in the higher | and setting aside of orders dated 23rd | |||||||
| echelons of the Army. He submitted | December, 1991 convening the GCM, | |||||||
| that in the year 1990 he had made | order dated 10th February, 1992 nd- | |||||||
| a direct complaint to the Chief of | ing the respondent No.1 guilty and | |||||||
| the Army Sta , Army Headquarters, | imposition of the sentence by GCM, | |||||||
| New Delhi with regard to the afore- | order dated 2nd May, 1992 exercis- | |||||||
| said embezzlement which, according | ing the revisional jurisdiction by the | |||||||
| to him, generated further feelings of | GOC, BA and order dated 19th May, | |||||||
| animosity and ill-will against him. | 1992 revising the initial sentence and | |||||||
| He was attached to 235 IWT Com- | dismissing the respondent No.1 from | |||||||
| pany on 14th September, 1990 and | service. The grounds of challenging | |||||||
| allegedly not given any duty after at- | the aforesaid orders were as under: | |||||||
| tachment to the said unit. On 22nd | \1. | The composition of the | ||||||
| October, 1990, the Commanding Of- | ||||||||
| GCM, as was determined by the Con- | ||||||||
| cer of 235 IWT Company called | vening Order dated 23rd December, | |||||||
| upon the respondent No.1 to produce | 1991 was bad in law because Captain | |||||||
| the evidence by 25th October, 1990 | Arun Kumar Vashistha was not qual- | |||||||
| in connection with his allegations of | i ed to be appointed as a Judge Ad- | |||||||
| embezzlement. | At | that | time the | vocate in the said GCM. This ground | ||||
| Company to which he was attached | of challenge is based on two counts, | |||||||
| was stationed at Alambazar, near | rstly because no o cer of a rank | |||||||
| Dakshineswar, just outside Calcutta | inferior to the accused can be ap- | |||||||
| and his family was residing at Fort | pointed as a Judge - Advocate in | |||||||
| Williams, Calcutta. | He was served | GCM and secondly the participation | ||||||
| with a chargesheet on 18th Novem- | of the Judge Advocate in the pro- | |||||||
| ber, 1991 signed by the Command- | ceedings held on 18th and 19th May, | |||||||
| ing O cer, 121, Infantry Battalian | 1982 upon revision was bad since | |||||||
| (TA) which was endorsed by the | he was not entitled to take part in | |||||||
| General O cer Commanding, Ben- | the proceedings after 10th February, | |||||||
| gal Area. | Though the respondent | 1992 when the GCM proceedings had | ||||||
| No.1 was posted to 235 IWT Com- | originally stood concluded. | |||||||
| pany vide order dated 12th Septem- | 2. | GOC, BA had no jurisdiction | ||||||
| ber, 1990 he was attached on 23rd | ||||||||
| to either convene the GCM vide his | ||||||||
| March, 1991 under the provisions of | ||||||||
| Army Instructions 30 of 1986 to 121 | order dated 23rd December, 1991 or | |||||||
| Infantry Battalion (TA) till nali- | to pass the order dated 2nd May, | |||||||
| sation of the disciplinary proceed- | 1992, as he was neither a properly | |||||||
| ings which had been initiated against | appointed nor a properly designated | |||||||
| him. | The charge-sheet dated 18th | Convening Authority for the pur- | ||||||
| 368 | Union Of India v. Charanjit S. Gill 2000 |
poses of convening a GCM nor could he be deemed considered to be a legally and validly appointed con- forming authority for the purposes of exercising the power under Section 160 of the Army Act. In either event, his act of convening the GCM was il- legal and therefore the proceedings of the GCM on that ground were void ab initio. Similarly since he did not have any power to act a con rming authority, he had no jurisdiction to exercise any power under section 160 of the Army Act and order revision of the sentence. Reliance was placed upon Regulation 472 of the Regula- tions for the Army in support of this contention.
3.The order dated 2nd May, 1992 was bad in law because while exercising revisional jurisdiction un- der Section 160 of the Army Act, the GOC, BA not only expressed his views and opinion about the merits of the case but the order amounted to almost a direction upon the GCM, and the GCM comprising, as it were, of the o cers subordinate to GOC, BA had no option but to revise the sentence, as was desired by GOC, BA.
4.GOC, BA was also not an appropriate Convening Authority for the purposes of convening a GCM as the petitioner was not serving un- der him. Since the petitioner was serving in the Head Quarter, East- ern Command, it was only GOC-in-
Cwho could be considered to be the appropriate, convening authority in respect of the petitioner for conven- ing a GCM. Merely because the pe- titioner was attached to a unit which
was under the control of GOC, BA, that by itself did not make GOC, BA the duly appointed convening au- thority for convening a GCM. Re- liance was placed upon the contents of warrant A-1 appointing GOC, BA and GOC-in-C as respective conven- ing authorities.
5.The sentence of dismissal for a minor o ence like being absent with- out leave, and for committing an of- fence under section 63 of the Army Act was highly and grossly dispro- portionate to the gravity of the of- fence. Even if the proceedings of the GCM and the nding of \guilty" was to be upheld by this court, the initial sentence of forfeiture of six months of service for the purpose of promotion was a reasonable punishment in the facts and circumstances of this case.
6.Distinction has to be drawn between \absent from a place" and \absence from duty" because in the facts and circumstances in which the petitioner was placed, the petitioner was not allocated or entrusted with any duties and therefore if he ab- sented from a place, without there being any duty that he was to per- form, Section 39 of the Army Act could not be attracted in his case and therefore he could not be held guilty of the charges levelled against him.
7.The appropriate Con rming Authority have been prescribed in Regulation 472 and even though this Regulation is not statutory in char- acter and has not been issued under Section 192 of the Army Act, yet it amounting to an executive instruc- tion has the force of law and thus su- persedes the warrants issued by the
369
Central Government under Section 164 of the Army Act. The contention is that the authorities prescribed in Regulation 472 alone are competent to act as con rming or convening au- thorities and that the authorities ap- pointed under the warrants by the Central Government in exercise of the powers vesting in its under Sec- tion 154 have no jurisdiction to act as such.
8. The order dated 17th De- cember, 1996 is bad because it was passed without a ording the peti- tioner an opportunity of submitting a pre-con rmation representation, as was directed by this court on 16th December, 1996."
None of the grounds found favour with the learned Single Judge who after hearing dismissed the writ peti- tion. The respondent No.1 was, how- ever, given two weeks time to vacate the accommodation occupied by him upon his giving an undertaking. The appeal led against the judgment of the learned Single Judge was allowed holding: \However, without deciding any other point we are of the view that a Judge Advocate being lower in rank to an accused o cer should not be able to take part in the gen- eral court martial proceedings for the above reason."
Mr.Rawal, the learned Addi- tional Solicitor General appearing for the appellants has vehemently ar- gued that as the Judge Advocate is only a Legal Advisor and not a member of the Court Martial, his rank is not material for being ap- pointed as such to assist the GCM. It is further contended that under
the Army Act, Rules and Regula- tions made thereunder, there was no obligation for the appellants to ap- point a Judge Advocate who should have been senior in rank to the ac- cused on the analogy that the mem- bers of the court martial who tried the accused are required to be of the same or higher rank to the accused o cers. According to him there are separate provisions under the Act, Rules and Regulations for members and Judge Advocate at GCM laying down their eligibility, disquali ca- tions, duties, etc. Relying upon Note 2 attached to Rule 102, the learned counsel has submitted that the dis- quali cation for being a Judge Ad- vocate in a court martial is referable to Rule 39(2) alone which cannot be stretched further to Rule 40(2) of the Rules. It is contended that the Division Bench of the High Court has not properly interpreted the pro- visions of Sections 113 and 129 of the Act and Rules 39, 40 and 102 of the Army Rules. Appearing for the respondent No.1 Mr.Ranjit Ku- mar, Advocate has submitted that the combined reading of Rules 39, 40 and 102 makes it clear that if the Judge Advocate is lower in rank than the accused facing the trial in GCM, the proceedings are liable to be quashed. According to him the provisions of Rule 39 read with Rules 40 and 102 of the Army Rules leave no doubt that the Judge Advocate appointed for the trial of an o cer by the GCM should be a rank not lower than that of the O cer fac- ing the trial. He has submitted that though, technically the Judge Advo- cate is an Advisor to the prosecution,
| 370 | Union Of India v. Charanjit S. Gill 2000 |
yet in practice he wields a great in-uence upon the verdict of the court in view of the powers conferred upon him under the Act and the Rules. He has speci cally referred to the pro- visions of Rules 60, 61, 62 and 105 of the Rules to emphasise the im- portance of the role played by the Judge Advocate during the trial in a court martial. In order to appreciate the rival contentions of the learned counsel for the parties it is neces- sary to take note of some of the rele- vant provisions of the Act, the Rules and the Regulations made thereun- der. The Act was enacted on 20th May, 1950 and enforced w.e.f. 22nd July, 1950 to consolidate and amend the law relating to the Government of the regular Army keeping in view the report of the Select Committee appointed for the purpose. Prior to the enactment of Army Act, 1950, there existed the Indian Army Act, 1911 made and applied by the British Rulers. Feeling that some of the pro- visions of the 1911 Act had become out of date and insu cient for mod- ern requirements after independence, a need for revision was felt to have become imperative for obvious rea- sons. However, the scheme of the Act by and large remained the same as was incorporated in Army Act, 1911. The Act has been found to be su er- ing from various draw-backs as were pointed out by this Court in Lt.Col. Prithi Pal Singh Bedi v. Union of India & Ors. [1982 (3) SCC 140]. This Court hoped and stressed that changes all over the English speaking democracies would awaken the Par- liament to the changed system as re- gards the Armed Forces. Merely by
joining the Armed Forces a person does not cease to be a citizen so as to be wholly deprived of his rights under the Constitution. While dismissing the writ petitions in that case, this Court noticed with anguish and con- cern and observed: \Reluctance of the apex court more concerned with civil law to interfere with the internal a airs of the Army is likely to cre- ate a distorted picture in the minds of the military personnel that per- sons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or enter- ing Armed Forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitu- tion. More so when this Court held in Sunil Batra v. Delhi Administra- tion [1979 (1) SCR 394] that even prisoners deprived of personal liberty are not wholly denuded of their fun- damental rights. In the larger inter- est of national security and military discipline Parliament in its wisdom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizens not entitled to the bene ts of the liberal spirit of the Constitution. Persons subject to Army Act are cit- izens of this ancient land having a feeling of belonging to the civilised community governed by the liberty- oriented constitution. Personal lib- erty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by a judge of unquestioned integrity and wholly unbiased. A marked di erence in the procedure
371
for trial of an o ence by the crimi- nal court and the court martial is apt to generate dissatisfaction arising out of this di erential treatment. Even though it is pointed out that the pro- cedure of trial by court martial is al- most analogous to the procedure of trial in the ordinary criminal courts, we must recall that Justice William O'Douglas observed: \[T]that civil trial is held in an atmosphere con- ducive to the protection of individual rights while a military trial is marked by the age-old manifest destiny of retributive justice. Very expression 'court martial' generally strikes ter- ror in the heart of the person to be tried by it. And somehow or the other the trial is looked upon with disfavour." In Reid v. Covert 1 L Ed 2d 1148: 354 US 1 (1957)] Jus- tice Black observed at page 1174 as under:
Court martial are typically ad hoc bodies appointed by a military o cer from among his subordinates. They have always been subject to varying degrees of 'command in u- ence'. In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the mem- bers of the court marital must look to the appointing o cer for promotions, advantageous assignments and e - ciency ratings - in short, for their fu- ture progress in the service. Conced- ing to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court mar- tial, in the nature of things, do not and cannot have the independence of
jurors drawn from the general public or of civilian judges.
Absence of even one appeal with power to review evidence, legal for- mulation, conclusion and adequacy of otherwise of punishment is a glar- ing lacuna in a country where a coun- terpart civilian convict can prefer appeal after appeal to hierarchy of courts. Submission that full review of nding and/or sentence in con-rmation proceedings under Section 153 is provided for is poor solace. A hierarchy of courts with appellate powers each having its own power of judicial review has of course been found to be counter productive but the converse is equally distressing in that there is not even a single ju- dicial review. With the expanding horizons of fair play in action even in administrative decision, the univer- sal declaration of human rights and retributive justice being relegated to the uncivilised days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body com- posed of non-military personnel or civil personnel. Army is always on alert for repelling external aggres- sion and suppressing internal disor- der so that the peace-loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of this order. And it must be realised that an appeal from Ceaser to Ceaser's wife - con-rmation proceedings under Section 153 - has been condemned as injudi- cious and merely a lip sympathy to form. The core question is whether
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at least there should be one appeal to a body composed of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the ade- quacy of punishment being commen- surate with the gravity of the of- fence charged. Judicial approach by people well-versed in objective analy- sis of evidence trained by experience to look at facts and law objectively, fair play and justice cannot always be sacri ced at the altar of military discipline. Unjust decision would be subversive of discipline. There must be a judicious admixture of both. An nothing revolutionary is being sug- gested. Our Army Act was more or less modelled on the U.K. Act. Three decades of its working with winds of change blowing over the world neces- sitates a second look so as to bring in it conformity with liberty-oriented constitution and rule of law which is the uniting and integrating force in our political society. Even U.K. has taken a step of far-reaching im- portance for rehabilitating the con - dence of the Royal Forces in respect of judicial review of decisions of court martial. U.K. had enacted a Court Martial (Appeal) Act of 1951 and it has been extensively amended in Court Martial (appeals) Act, 1968. Merely providing an appeal by itself may not be very reassuring but the personnel of the appellate court must inspire con dence. The court mar- tial appellate court consists of the ex o cio and ordinary judges of the Court of Appeal, such of the judges of the Queen's Bench Division as the Lord Chief Justice may nominate af- ter consultation with the Master of
the Rolls, such of the Lords, Com- missioners of Justiciary in Scotland as the Lord Chief Justice generally may nominate, such Judges of the Supreme Court of the Northern Ire- land as the Lord Chief Justice of Northern Ireland may nominate and such of the persons of legal expe- rience as the Lord Chancellor may appoint. The court martial appel- late court has power to determine any question necessary to be deter- mined in order to do justice in the case before the court and may autho- rise a new trial where the conviction is quashed in the light of fresh evi- dence. The court has also power in- ter alia, to order production of docu- ments or exhibits connected with the proceedings, order the attendance of witnesses, receive evidence, obtain reports and the like from the mem- bers of the court martial or the per- son who acted as Judge Advocate, order a reference of any question to a Special Commissioner for Enquiry and appoint a person with special expert knowledge to act as an as- sessor (Halsbury's Laws of England, 4th Edn., paras 954-955 pp. 458- 59). Frankly the appellate court has power to full judicial review unham- pered by any procedural claptrap.
Turning towards the U.S.A., a refernece to Uniform Code of Mili- tary Justice Act, 1950, would be in- structive. A provision has been made for setting up of a court of military appeals. The Act contained many procedural reforms and due process safeguards not then guaranteed in civil courts. To cite one example, the right to legally quali ed coun-
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sel was made mandatory in general court martial cases 13 years before the decision of the Supreme Court in Gideon v. Waiwright (372 US 335 1963)). Between 1950 and 1968 when the Administration of Justice Act, 1968 was introduced, many ad- vances were made in the administra- tion of justice by civil courts but they were not re ected in military court proceedings. To correct these de - ciencies the Congress enacted Mili- tary Justice Act, 1968, the salient features of which are: (1) a right to legally quali ed counsel guaran- teed to an accused before any spe- cial court martial; (2) a military judge can in certain circumstances conduct the trial alone and the ac- cused in such a situation is given the option after learning the iden- tity of the military judge of request- ing for the trial by the judge alone. A ban has been imposed on com- mand interference with military jus- tice, etc. Ours is still an antiquated system. The wind of change blowing over the country has not permeated the close and sacrosanct precincts of the Army. if in civil courts the universally accepted dictum is that justice must not only be done but it must seem to be done, the same holds good with all the greater vigour in case of court martial where the judge and the accused don the same dress, have the same mental disci- pline, have a strong hierarchical sub- jugation and a feeling of bias in such circumstances is irremovable. We, therefore, hope and believe that the changes all over the English-speaking democracies will awaken our Parlia- ment to the changed value system.
In this behalf, we would like to draw pointed attention of the Government of the glaring anomaly that courts martial do not even write a brief rea- soned order in support of their con- clusion, even in cases in which they impose the death sentence. This must be remedied in order to ensure that a disciplined and dedicated In- dian Army may not nurse a grievance that the substance of justice and fair play is denied to it."
Despite lapse of about two decades neither the Parliament nor the Central Government appears to have realised their constitutional obligations, as were expected by this Court, except amending Rule 62 providing that after recording thending in each charge the Court shall give brief reasons in support thereof. The Judge Advocate has been obliged to record or caused to be recorded brief reasons in the pro- ceedings. Even today the law relat- ing to Armed Forces remains static which requires to be changed keeping in view the observations made by this Court in Prithi Pal Singh Bedi's case (supra), the constitutional mandate and the changes e ected by other democratic countries. The time has come to allay the apprehension of all concerned that the system of trial by court martial was not the arch type of summary and arbitrary pro- ceedings. In the absence of e ec- tive steps taken by the Parliament and the Central Government, it is the constitutional obligation of the courts in the country to protect and safeguard the constitutional rights of all citizens including the persons en-
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rolled in the Armed Forces to the ex- tent permissible under law by not for- getting the paramount need of main- taining the discipline in the Armed Forces of the country. The court martials under the Act are not courts in the strict sense of the term as un- derstood in relation to implementa- tion of the civil laws. The proceed- ings before court martial are more administrative in nature and of the executive type. Such courts under the Act, deal with two types of of- fences, namely, (1) such acts and omissions which are peculiar to the Armed Forces regarding which no punishment is provided under the or- dinary law of the land and (2) a class of o ences punishable under the In- dian Penal Code or any other leg- islation passed by the Parliament. Chapter VI of the Act deals with the o ences. Sections 34 to 68 relate to the o ences of the rst description noted hereinabove and Section 69 with civil o ences which means the o ence triable by an ordinary crimi- nal court. Chapter VII provides for punishments which can be in icted in respect of o ences committed by persons subject to the Act and con- victed by court martial, according to the scale provided therein. Chapter X deals with court martials. Section 108 provides that for the purposes of the Act there shall be four kinds of court martials, that is to say,
(a)general court martial;
(b)district court martial;
(c)summary general court mar- tial; and
(d)summary court martial.
Court martials can be convened by persons and authorities as spec- i ed in Sections 109, 110, 112 and 118 of the Act. The procedure of court martials is detailed in Chapter XI of the Act. Section 129 mandates that every general court martial shall be attended by a judge advocate, who shall be either an o cer be- longing to the department of Judge Advocate-General or if no such o - cer is available, an o cer approved by the Judge Advocate General or any of his deputies. The accused has a right to challenge the name of any o cer composing the court martial which obviously means that no such objection can be raised regarding the appointment of the Judge Advocate. No ndings 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 un- der the Act. Under Section 158, the con rming authority has the power to mitigate or remit the punishment awarded by the court martial or com- mute that punishment for any pun- ishment or punishments lower in the scales laid down in Section 71. Un- der Section 160 the con rming au- thority has the power to direct a revi- sion of the nding of a court martial and on such revision, the court, if so directed by the con rming authority, may take additional evidence. Any person, subject to the Act, who con- siders himself aggrieved by any or- der passed by the court martial can present a petition to the o cer or authority empowered to con rm anynding or sentence of such court mar- tial and in that case the con rming authority may take such steps as may
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be considered necessary to satisfy it- self as to the correctness, legality or propriety of the order passed or as to the regularity of any proceedings to which the order relates. There is no provision for preferring an appeal against the ndings of the court mar- tial.
In exercise of the powers con- ferred by Section 191 of the Act the Central Government have framed the Rules called the Army Rules, 1954. Chapter V of the Rules deals with the investigation of charges and trial by court martial. Court Martials are convened in terms of Rule 37. Rule 39 prescribes ineligibility and disquali cation of o cers for court martial. It reads:
\Ineligibility and disquali cation of o cers for court martial {(1) An o cer is not eligible for serving on a court martial if he is not subject to the Act.
(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 squardon, 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 personal interest in the
case."
(3) The provost-marshal or assis- tant provost-marshal is disquali ed from serving on a general court mar- tial or district court martial.
Rule 40 provides:
\40. Composition of General Court Martial (1) A general court martial shall be composed, as far as seems to the convening o cer practi- cable, of o cers of di erent corps or departments, and in no case exclu- sive of o cers of the corps or depart- ment to which the accused belongs.
(2)The members of a court mar- tial for the trial of an o cer shall be of a rank not lower than that of the o cer unless, in the opinion of the convening o cer, o cers of such rank are not (having due regard to the exigencies of the public ser- vice) available. Such opinion shall be recorded in the convening order.
(3)In no case shall an o cer be- low the rank of captain be a member of court martial for the trial of a eld o cer."
Rule 44 provides that the order convening the court and the names of the Presiding O cer and the mem- bers of the court shall be read over to the accused and he shall be asked as required by Section 130 whether he has any objection to being tried by any o cer sitting on the court. Such objection when raised is required to
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be disposed of in accordance with the provisions of Section
130. The accused before pleading to a charge, may o er a special plea to the jurisdiction of the court and if he does so, the court shall decide it. If the objection regarding such plea is overruled, the court shall proceed with the trial and if such plea is al- lowed, the court is required to record its reason and report to the conven- ing authority and adjourn the pro- ceedings (Rule 51). Rules 52, 53, 54, 55 and 56 deal with the recording of the plea of \guilty" or \not guilty". In case the accused pleds not guilty, the trial is to commence and after the close of the case of the prosecution, the Presiding O cer or the Judge Advocate is required to explain to the accused that he may make an unsworn statement orally or in writ- ing giving his account of the subject of charges against him or if he wishes he may give evidence as witness on oath or a rmation, in disproof of the charges against him or any person to be charged with him at the same trial. After the examination of the witnesses, the prosecutor may make a closing address and the accused or his counsel or the defending o cer, as the case may be, shall be entitled to reply. The Judge Advocate is au- thorised to sum up in open court the evidence and advise the court upon the law relating to the case. Rule 61 provides that the court shall de- liberate on its nding in closed court in the presence of the Judge Advo- cate and Rule 62 provides the form, record and announcement of nding.
Referring to various provisions of
the Act and the Rules as noticed ear- lier, the learned counsel appearing for respondent No.1 has argued that in e ect and practice the Judge Ad- vocate is the 'court' and the 'court martial' is the jury for all practical purposes so far as the trial of the ac- cused is concerned. The argument may be exaggerated version of the re- ality but is not totally without sub- stance inasmuch as the powers ex- ercised by the Judge Advocate indi- cate that though not forming part of the court martial, he is an inte- gral part thereof particularly in court martials which cannot be conducted in his absence. It cannot be denied that the justice dispensation system in the Army is based upon the sys- tem prevalent in the Great Britain. The position of the Judge Advocate is by no means less than that of a Judge Advocate associated with a court martial in that country. The importance of the role of the Judge Advocate in U.K. was noticed and considered in R v. Linzee [1956 (3) All E.R.].
It is true that Judge Advocate theoritically performs no function as a judge but it is equally true that he is an e ective o cer of the court con- ducting the case against the accused under the Act. It is his duty to in- form the court of any defect or irreg- ularity in the charge and , in the con- stitution of the court or in the pro- ceedings. The quality of the advise tendered by the Judge Advocate is very crucial in a trial conducted un- der the Act. With the role assigned to him a Judge Advocate is in a po- sition to sway the minds of the mem-
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bers of the court martial as his advise or verdict cannot be taken lightly by the person composing the court who are admittedly not law knowing per- sons. It is to be remembered that the court martials are not part of the ju- dicial system in the country and are not permanent courts.
The importance of role played by a Judge Advocate was noticed by this Court in S.N. Mukherjee v. Union of India [1990 (4) SCC 594] wherein it was held: \From the provisions referred to above it is evident that the judge advocate plays an impor- tant role during the course 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 make 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 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-
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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, nd- ing and sentence, and any recommen- dation to mercy shall, together with the con rmation, 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 con rmed until they have been pro- mulgated."
In view of what has been noticed hereinabove, it is apparent that if a ' t person' is not appointed as a judge advocate, the proceedings of the court martial cannot be held to be valid and its nding legally ar- rived at. Such an invalidity in ap- pointing an 'un t' person as a judge advocate is not curable under Rule 103 of the Rules. If a t person pos- sessing requisite quali cations and otherwise eligible to form part of the general court martial is appointed as a judge advocate and ultimately some invalidity is found in his ap- pointment, the proceedings of the court martial cannot be declared in- valid. A \ t person" mentioned in Rule 103 is referable to Rules 39 and
40. It is contended by Shri Rawal, learned ASG that a person t to be appointed as judge advocate is such o cer who does not su er from any ineligibility or disquali cation in terms of Rule 39 alone. It is fur- ther contended that Rule 40 does not refer to disquali cations. We can- not agree with this general proposi- tion made on behalf of the appellant inasmuch as Sub-rule (2) of Rule 40 speci cally provides that members of a court martial for trial of an o cer should be of a rank not lower than that of the o cer facing the trial un- less such o cer is not available re- garding which speci c opinion is re- quired to be recorded in the conven- ing order. Rule 102 unambiguously
379
provides that \an o cer who is dis- quali ed for sitting on a court mar- tial shall be disquali ed for acting as a judge advocate in a court martial". A combined reading of Rules 39, 40 and 102 suggest that an o cer who is disquali ed to be a part of court martial is also disquali ed from act- ing and sitting as a judge advocate at the court martial. It follows, there- fore, that if an o cer lower in rank than the o cer facing the trial can- not become a part of the court mar- tial, the o cer of such rank would be disquali ed for acting as a judge ad- vocate at the trial before a GCM. Ac- cepting a plea to the contrary, would be invalidating the legal bar imposed upon the composition of the court in sub-rule (2) of Rule
Arguments of the learned ASG, if analysed critically, and accepted would mean that in e ect and essence no disquali cation or eligibility can be assigned to any o cer in becom- ing a judge advocate. Stretching it further it can be argued that as Rule 40 does not refer to the ineligibility or disquali cation of an o cer to be a judge advocate, even an o cer be- low the rank of a Captain can be- come a member of the court martial for the trial of a Field O cer as bar of sub-rule (3) of Rule 40 is not appli- cable. Such an interpretation is un- called for and apparently contradic- tory in terms.
The purpose and object of pre- scribing the conditions of eligibil- ity and quali cation along with de- sirability of having members of the court martial of the rank not lower than the o cer facing the trial is
obvious. The law makers and the rule framers appear to have in mind the respect and dignity of the o - cer facing the trial till guilt is proved against him by not exposing him to humiliation of being subjected to trial by o cers of lower in rank. The importance of the judge advocate as noticed earlier being of a paramount nature requires that he should be such person who inspires con dence and does not subject the o cer fac- ing the trial to humiliation because the accused is also entitled to the opinion and services of the judge ad- vocate. Availing of the services or seeking advise from a person junior in rank may apparently be not possi- ble ultimately resulting in failure of justice.
It has been argued that as o cers of the same rank or higher in rank than the o cers facing the trial in court martials are not available, an interpretation as rendered by the im- pugned judgment would render the holding of court martials impossible. Such an argument is to be noticed for only being rejected. Sub-rule (2) of Rule 40 itself gives a discretion to the convening o cer who is authorised to appoint a member of the court mar- tial or judge advocate who is lower in rank than the o cers facing the trial, if he is of the opinion that of-cer of such rank is not (having due regard to the exigencies of the public service) available, subject to a fur- ther condition that such opinion is required to be recorded in the con- vening order. It implied, therefore, that the provisions of sub-rule (2) of Rule 40 are not mandatory because
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they give a discretion to appoint a member of the court martial or a judge advocate who is lower in rank than the o cer facing the trial under the circumstances speci ed. Rule 39, admittedly, has no exception and is thus mandatory.
Further relying upon Note 2 men- tioned at the foot of Rule 102 provid- ing, \as to disquali cation of a judge advocate CAR 39(2)", the learned ASG submitted that the said Note having the force of law has been fol- lowed by the Army authorities from the very beginning and thus disqual- i cations of a judge advocate are referable to only Rule 39(2) of the Rules. It is contended as the source of the Rules and the Note thereto is the same, the e cacy of Note 2 can- not be minimised. The Army author- ities, according
to the learned ASG have under- stood Rules 39, 40 and 102 in this context while making appointments of the judge advocate.
In response to our directions an a davit has been led on behalf of the appellants with respect to:
(a)the authority which had pre- pared the Notes appearing in Army Act, 1950 and Army Rules, 1954
(b)the year in which these Notes were incorporated in the Army Act, 1950 and Army Rules, 1954.
(c)the authority which had ap- proved these Notes to be incorpo- rated in the Army Act and the Rules framed thereunder. stating therein:
\That Army Act, 1950 was en- acted on the pattern of the Indian Army Act, 1911 and Army Rules,
1954 are on the pattern of Indian Army Act Rules, Army Rule 89 of In- dian Army Act Rules dealt with dis- quali cations of Judge Advocate. It also had note stating that for disqual- i cation, see the Rule dealing with the Rule pari materia to Rule 39 of the present Rules that is Army Rules, 1959.
That the manual of Indian Mili- tary Law, 1937, published by Govt. of India, Ministry of Defence (Cor- rected up to 1960) Reprint 1967, also contains Indian Army Act, 1911 with Notes as well as the Indian Army Act Rules with Notes. Since this was 1967 reprint, in this manual even Army Act, 1950 and Army Rules, 1954 are also contained.
That in the year 1978 the JAG's Department compiled the Army Act & Rules in the new Manual with a view to make it more convenient for reference. Prior to it, as stated above, the Military Law of the coun- try was outlined in the Manual of Military Law, 1937. The Man- ual contained the Indian Army Act, 1911, the Indian Army Act & Rules and explanatory notes under vari- ous Sections and Rules. The pas- sage of time necessitated revision of the Manual and incorporation of ex- planatory notes under the relevant sections and clauses of the Army Act, 1950 and Army Rules, 1954. It also became necessary to include some other enactments essential to the subject, and to exclude from the Manual the repealed Indian Army Act, 1911 and the superseded Indian Army Act Rules. The Manual of Military Law containing explanatory
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Notes under the current and opera- tive Army Act & Rules were issued in 1983.
That as stated above, the Manual of Military Law issued in 1983 was compiled by the o ce of Judge Ad- vocate General and approved by the Govt. as evident from the preface of the Manual.
That the Notes to Army Act and Army Rules were appended to In- dian Army Act, 1911 and the In- dian Army Act Rules and were fol- lowed as explanatory Notes and guid- ance. These suitably modi ed and amended were formally appended to the relevant provisions of the Army Act, 1950 and Army Rules, 1954 in 1983 after the same were duly ap- proved by the Govt. That no facts which were not pleaded before court below have not been pleaded."
However, no material has been placed on record to show that the Notes appended to the Rules were duly approved by the Government. Per contra the respondent No.1 in his a davit has submitted that the Notes under Sections and Rules as are found under various provisions of law compiled by the Army authori- ties in the Manual of Military Law do not form part of the Army Act, 1950 and Army Rules, 1954. The Rules of 1954 are stated to have been borrowed from the Indian Army Act, 1911 and the Rules framed thereun- der. It is contended that the Notes are not law passed by Parliament and have not been vetted even by the Ministry of Law & Justice or by the Law Commission. It is not disputed that Section 191 of the Army Act em-
powers the Central Government to make rules for the purpose of carry- ing into e ect the provisions of the Act and Section 192 to make regula- tions for all or any of the provisions of the Act other than those speci-ed in Section 191. All Rules and Regulations made under the Act are required to be published in the o - cial gazette and on such publication shall have the e ect as if enacted in the Act. No power is conferred upon the Central Government of issuing Notes or issuing orders which could have the e ect of the Rules made under the Act. Rules and Regula- tions or administrative instructions can neither be supplemented nor sub- stituted under any provision of the Act or the Rules and Regulations framed thereunder. The administra- tive instructions issued or the Notes attached to the Rules which are not referable to any statutory authority cannot be permitted to bring about a result which may take away the rights vested in a person governed by the Act. The Government, how- ever, has the power to ll up the gaps in supplementing the rules by issuing instructions if the Rules are silent on the subject provided the instructions issued are not inconsis- tent with the Rules already framed. Accepting the contention of holding Note 2 as supplementing Rules 39 and 40 would amount to amending and superseding statutory rules by administrative instructions. When Rule 39 read with Rule 40 imposes a restriction upon the Government and a right in favour of the person tried by a court martial to the ef- fect that a person lower in rank shall
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not be a member of the court mar- tial or be a judge advocate, the in- sertion of Note 2 to Rule 102 can- not be held to have the e ect of a Rule or Regulation. It appears that the 'notes' have been issued by the authorities of the Armed Forces for the guidance of the o cers connected with the implementation of the pro- visions of the Act and the Rules and not with the object of supplementing or superseding the statutory Rules by administrative instructions. Af- ter examining various provisions of the Act, the Rules and Regulations framed thereunder and perusing the proceedings of the court martial con- ducted against the respondent No.1, we are of the opinion that the judge advocate though not forming a part of the court, yet being an integral part of it is required to possess all such quali cations and be free from the disquali cations which relate to the appointment of an o cer to the court martial. In other words a judge advocate appointed with the court martial should not be an o cer of a rank lower than that the o cer fac- ing the trial unless the o cer of such rank is not (having due regard to the exigencies of public service) avail- able and the opinion regarding non- availability is speci cally recorded in the convening order. As in the in- stant case, judge advocate was lower in rank to the accused o cer and no satisfaction/opinion in terms of sub- rule (2) of Rule 40 was recorded, the Division Bench of the High Court was justi ed in passing the impugned judgment, giving the authorities lib- erty to initiate fresh court martial proceedings, if any, if they are so ad-
vised in accordance with law and also in the light of the judgment delivered by the High Court.
Fears have been expressed that in case the proceedings of the court martial are quashed on the ground of the judge advocate being lower in rank than the o cer facing trial be- fore the court marital, many judg- ments delivered, orders passed and actions taken by various court mar- tials till date would be rendered il- legal as according to appellants a number of court martials have al- ready been held and conducted un- der the assumption of the disquali-cation not being referable to Rule 40(2), on the strength of Note 2 at- tached to Rule 102 of the Rules. In that event, it is apprehended, aood-gate of new litigation would be opened which ultimately is likely to not only weaken the discipline in the Armed Forces but also re- sult in great hardship to all those whose rights have already been de- termined. Such an apprehension is misplaced in view of \de facto doc- trine" born out of necessity as ac- knowledged and approved by vari- ous pronouncements of the courts. This Court in Gokaraju Rangaraju v. State of Andhra Pradesh [1981
(3) SCC 132] applying the de facto doctrine in a case where the appoint- ment of a judge was found to be in- valid, after reference to various judg- ments and the observations of the constitutional experts held:
\A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds o ce, un- der colour of lawful authority, though
383
his appointment is defective and may later be found to be defective. What- ever be the defect of his title to the o ce, judgments pronounced by him and acts done by him when he was clothed with the powers and func- tions of the o ce, albeit unlawfully, have the same e cacy as judgments pronounced and acts done by a judge de jure. Such is the de factor doc- trine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet an- other rule also based on public pol- icy. The defective appointment of a de facto judge may be questioned di- rectly in a proceeding to which he be a party but it cannot be per- mitted to be questioned in a litiga- tion between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigat- ing their private titles cannot be per- mitted to bring in issue and litigate upon the title of a judge to his of-ce. Otherwise so soon as a judge pronounces a judgment a litigation may be commended for a declaration that the judgment is void because the judge is no judge. A judge's title to his o ce cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on va- lidity of judicial appointments. To question a judge's appointment in an appeal against his judgment is, of course, such a collateral attack.
We do not agree with the sub- mission of the learned counsel that the de facto doctrine is subject to the limitation that the defect in the title of the judge to the o ce should not
be one traceable to the violation of a constitutional provision. The con- travention of a constitutional provi- sion may invalidate an appointment but we are not concerned with that. We are concerned with the e ect of the invalidation upon the acts done by the judge whose appointment has been invalidated. The de facto doc- trine saves such acts. The de facto doctrine is not a stranger to the Con- stitution or to the Parliament and the Legislatures of the States. Ar- ticle 71(2) of the Constitution pro- vides that acts done by the President or Vice-President of India in the ex- ercise and performance of the pow- ers and duties of his o ce shall not be invalidated by reason of the elec- tion of a person as President or Vice- President being declared void. So also Section 107(2) of the Represen- tation of the People Act, 1951 (43 of 1951) provides that acts and pro- ceedings in which a person has par- ticipated as a member of Parliament or a member of the legislature of a State shall not be invalidated by rea- son of the election of such person be- ing declared to be void. There are in- numerable other Parliamentary and State legislative enactments which are replete with such provisions. The twentieth amendment of the Consti- tution is an instance where the de facto doctrine was applied by the constituent body to remove any sus- picion or taint of illegality or invalid- ity that may be argued to have at- tached itself to judgments, decrees, sentences or orders passed or made by certain District Judges appointed before 1966, otherwise than in accor- dance with the provision of Article
| 384 | Union Of India v. Charanjit S. Gill 2000 |
233 and Article 235 of the Consti- tution. The twentieth amendment was the consequence of the decision of the Supreme Court in Chandra Mohan v. State of U.P. [1967 (1) SCR 77], that appointments of Dis- trict Judges made otherwise than in accordance with the provisions of Ar- ticle 233 and 235 were invalid. As such appointments had been made in many States, in order to pre-empt mushroom litigation springing up all over the country, it was apparently though desirable that the precise po- sition should be stated by the con- stituent body by amending the Con- stitution. Shri Phadke, learned coun- sel for the appellants, argued that the constituent body could not be imputed with the intention of mak- ing super uous amendments to the Constitution. Shri Phadke invited us to say that it was a necessary infer- ence from the twentieth amendment of the Contitution that, but for the amendment, the judgments, decrees, etc. of the District Judges appointed otherwise than in accordance with the provisions of Article 233 would be void. We do not think that the inference suggested by Shri Phadke is a necessary inference. It is true that as a general rule the Parliament may be presumed not to make su- per uous legislation. The presump- tion is not a strong presumption and statutes are full of provisions intro- duced because abundans cautela non nocet (there is no harm in being cau- tious). When judicial pronounce- ments have already declared the law on the subject, the statutory reitera- tion of the law with reference to par- ticular case does not lead to the nec-
essary inference that the law declared by the judicial pronouncements was not thought to apply to the par- ticular cases but may also lead to the inference that the statute-making body was mindful of the real state of the law but was acting under the in uence of excessive caution and so to silence the voices of doubting Thomases by declaring the law de- clared by judicial pronouncements to be applicable also to the particular cases. In Chandra Mohan case this Court had held that appointments of District Judges made otherwise than in accordance with Article 233 of the Constitution were invalid. Such ap- pointments had been made in Ut- tar Pradesh and a few other States. Doubts had been cast upon the va- lidity of the judgments, decrees etc. pronounced by those District Judges and large litigation had cropped up. It was to clear those doubts and not to alter the law that the twentieth amendment of the Constitution was made. This is clear from the state- ments of Objects and Reasons ap- pended to the Bill which was passed as Constitution (20th Amendment) Act, 1966. The statement said:
Amendments of District Judges in Uttar Pradesh and a few other States have been rendered invalid and illegal by a recent judgment of the Supreme Court on the ground that such appointments were not made in accordance with the provi- sions of Article 233 of the Consti- tution... As a result of these judg- ments, a serious situation has arisen because doubt has been thrown on the validity of the judgments, de-
385
crees, orders and sentences passed or made by these District Judges and a number of writ petitions and other cases have already been led chal- lenging their validity. The function- ing of the District Courts in Uttar Pradesh has practically come to a standstill. It is, therefore, urgently necessary to validate the judgments, decrees, orders and sentences passed or made heretofore by all such Dis- trict Judges in those States....".
This position of law was again re- iterated in State of U.P. v. Ra qud- din [1988 (1) SLR 491=1987 Supp. SCC 401] wherein it was held: \We have recorded ndings that 21 un- placed candidates of 1970 examina- tion were appointed to the service il- legally in breach of the Rules. We would, however, like to add that even though their appointment was not in accordance with the law but the judgment, and orders passed by them are not rendered invalid. The un- placed candidate are not usurpers of o ce, they were appointed by the competent authority to the posts of munsifs with the concurrence of the High Court, though they had not been found suitable for appointment according to the norms xed by the Public Service Commission. They have been working in the judicial ser- vice during all these years and some of them have been promoted also and they have performed their functions and duties as de facto judicial o - cers. \A person who is ineligible to
judgeship, but who has nevertheless been duly appointed and who exer- cise the powers and duties of the of-ce of a de facto judge, he acts validly until he is properly removed." Judg- ment and orders of a de factor judge cannot be challenged on the ground of his ineligibility for appointment."
In view of this position of law the judgments rendered by the court martial which have attained nality cannot be permitted to be re-opened on the basis of law laid down in this judgment. The proceedings of any court martial, if already challenged on this ground and are pending ad- judication in any court in the country would, however, be not governed by the principles of 'de facto doctrine'. No pending petition shall, however, be permitted to be amended to in- corporate the plea regarding the inel- igibility and disquali cation of judge advocate on the ground of appoint- ment being contrary to the man- date of Rule 40(2). This would also not debar the Central Government or the appropriate authority in passing fresh orders regarding appointment of the t persons as judge advocate in pending court martials, if so re- quired.
In the light of what has been stated hereinabove, the appeal is dis- missed with the observations andndings noticed in the preceding paragraph and the judgment of the Division Bench of the High Court is upheld. No costs.
| 386 | Union Of India v. Charanjit S. Gill 2000 |
Chapter 33
Sukhdev Singh Gill v. State Of Punjab 2000)
Sukhdev Singh Gill v. State Of Punjab & Ors. on 19 October, 2000 Equivalent citations: 2000 (87) FLR 951, 2000 (7) SCALE 259, (2000) 8 SCC 492 Author: M J Rao Bench: M Rao, M Shah
JUDGMENT
M. Jagannadha Rao, J.
CIVIL APPEAL NO. 499 OF 1992:
1.This is an appeal by Sukhdev Singh Gill who led Writ Petition No. 6160 of 1987. In the writ petition the appellant unsuccessfully claimed the bene t of military ser- vice towards xation of his senior- ity in terms of the Punjab Gov- ernment National Emergency (Con- cession) Rules, 1965 (hereinafter re- ferred to as 'the Rules').
2.The appellant joined as Su- perintendent in General Reserve En- gineering Force (hereinafter referred to as G.R.E.F.) on 8-11-1966. He was con rmed in the said post. He ren- dered the service in this post during
the period of external emergency. He therefore, claimed that the Armed Force called by the name G.R.E.F. was an integral part of the Indian Army and that in terms of the above Rules, he was entitled to count the military service rendered by him for the purpose of seniority in the Mu- nicipal Administration of the State which was a provincialised service. As the question of seniority was in- volved, the impleaded Respondent Nos. 3, 4 & 5 in the writ petition who would be a ected if he was given the bene t of military service.
3.Learned Single Judge allowed the writ petition but on appeal the Division Bench of the High Court set aside the said judgment in Let- ters Patent Appeal No. 1372 of 1988 and dismissed the writ petition. It is against this judgment that this ap- peal has been preferred.
4.The appellant joined service as
aSuperintendent in the G.R.E.F. on 8-11-1966 and was discharged some- time before 24-11-1972. He joined
| 388 | Sukhdev Singh Gill v. State Of Punjab 2000) |
wings of the Indian Armed Forces (including service as a warrant o - cer) rendered by a person during the period of Operation of the Proclama- tion of Emergency made by the Pres- ident under Article 352 of the Consti- tution on the 26th October, 1962 or such other service as may hereafter be declared as military service for the purposes of these rules. Any period of military training followed by mili- tary service shall also be reckoned as military service.
6. It is the case of learned se- nior counsel appearing for the appel- lant, Shri Rajinder Sachar that the military service de ned in Rule 2 in the above noti cation includes the service rendered by the appellant in the G.R.E.F. and that the said ser- vice should be added to his service in the Municipal Department of the
No. G.S.R. 160/Const./Art.309/65-State of Punjab and if that is done, In exercise of the powers conferred he would be senior to the private by the proviso enabling him in this respondents. This plea is opposed behalf, the Governor of Punjab is by Shri Adarsh Goel, learned senior pleased to make the following rules: counsel for the private respondent.
| 1. | Short title, commencement | 7. | Therefore, the limited ques- | ||
| tion before us is whether the appel- | |||||
| and application (1) These rules | |||||
| may be called the Punjab Govern- | lant could be said to have been \en- | ||||
| ment National Emergency (Conces- | rolled or commissioned" in any of the | ||||
| sion) Rules, 1965. | \three wings" of the Indian Armed | ||||
| Forces (including service as a war- | |||||
| (2) They shall come into force at | |||||
| rant | o cer) as required by Rule 2 | ||||
| once. | ( rst part) or whether the appellant | ||||
| (3) They shall apply to all classes | |||||
| was a member of any other service as | |||||
| of services and posts in connection | might have been declared as military | ||||
| with the a airs of the State of Punjab | service for the purposes of the said | ||||
| except Medical and Health services. | Rules, as required by Rule 2 (second | ||||
| 2. | De nition{ | for the purposes | part). | ||
| of these rules, the | expression 'mili- | 8. | So far as the second part of | ||
| tary service' means enrolled or com- | |||||
| Rule 2 which refers to \such other | |||||
| missioned service in any of the three | service as may be declared" as 'mili- | ||||
389
tary service', it is not in dispute that there is no separate noti cation is- sued by the Punjab Government, no- tifying the service in the G.R.E.F. for the purposes of Rule 2 of the said Rules.
9.Under these circumstances, the question is con ned to the rst part of Rule 2, namely; whether the appellant could be said to have been \enrolled" or \commissioned" in any of the \three services" of the Indian Armed Forces.
10.Learned senior counsel for the appellant relied upon the judg- ment of this Court in R. Viswan and Ors. v. Union of India and Ors. , where this Court considered the na- ture of the service in the G.R.E.F. and the applicability of certain pro- visions of the Army Act, 1950 for the purpose of taking disciplinary action against the O cers of the G.R.E.F. In that judgment this Court exhaus- tively dealt with the provisions of Ar- ticle 33 of the Constitution of India and the relevant noti cation issued by the Government of India under Sections 4(1) and 4(4) of the Army Act, 1950 under SRO 329 dated 23- 9-1960. The said noti cation issued under the Army Act, reads as fol- lows:
SRO 329 dated 23rd September 1960 In exercise of the powers con- ferred by Sub-section (1) and (4) of Section 4 of the Army Act, 1950 (46 of 1950), the Central Government hereby:
(a) applies to the General Re- verse Engineer Force, being a force raised and maintained in India un-
der the authority of the Central Gov- ernment, all the provisions of the said Act with the exception of those shown in Schedule 'A' subject to the modi cations set forth in Schedule 'B', and
(b) direct that the o cers men- tioned in the rst column of Sched- ule 'C shall exercise or perform in re- spect of members of the said force un- der their command the jurisdiction, powers and duties incidental to the operations of the said Act, speci ed in the second column thereof.
11. So far as Schedule 'A' of the SRO is concerned, it excepts cer- tain provisions of the Army Act and states that they do not apply to the members of G.R.E.F. whereas Sched- ule 'B' of the Noti cation relates to certain amendments in Sections 3, 63, 73, 81(4), 113, 114 and 116(1) of the said Act. In the above judgment, this Court noticed the de nition of the word, 'the Forces' in Section 3(xi) of the Army Act which reads as fol- lows:
(xi) \the Forces" means the regu- lar Army, Navy and Air Force or any part of any one or more of them;
12. This Court also referred to Section 4(1) & (4) of the Army Act, 1950 which read as follows:
4(1) The Central Government may, 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 Government, including any force maintained by a Part B State, and suspend the op- eration of any other enactment for
| 390 | Sukhdev Singh Gill v. State Of Punjab 2000) |
the time being applicable to the said force.
(4) While any of the provisions of this Act apply to the said force, the Central Government may, by noti - cation, direct by what authority any jurisdiction, powers or duties inci- dent to the operation of these provi- sions shall be exercised or performed in respect of the said force.
13. It was held in that case that G.R.E.F. came within Sub-section
(1) of Section 4 inasmuch as it was a \Force" raised and maintained in India under the authority of the Cen- tral Government. It was further held that the entire infrastructure of GREF was modelled on the pattern of the Army and it was organised into units and sub-units with com- mand and control system similar to that in the Army. The personnel of GREF right from Class IV to Class I had to be in uniform with distinctive badges of rank and they had a rank structure equivalent to that of the Army. GREF was primarily intended to carry out defence and other works projected by the General Sta of the Army Headquarters and it was only when spare capacity was available that GREF could undertake works of other ministries or departments or agency basis and there also, prefer- ence would be given to strategic and other roads in sensitive areas. This Court referred to the de nition of the Armed Forces in Section 3(xi) (at page 420) and observed that the word, 'Force' was not de ned any- where under the Army Act, 1950 but there was de nition of the words, 'the Forces' in Section 3(xi), but it
would not help because the expres- sion to be construed was the word \Force" which was di erent from the words, 'the Forces'. After having so observed, this Court referred to the question whether the members of GREF could be considered to be the members of the \Armed Forces\ within the meaning of Article 33 of the Constitution of India. This be- came necessary in that case because the question was whether the funda- mental rights of the GREF O cers stood restricted as in the case of the three principal Forces. If Article 33 applied, the State would be protected under Article 33 of the Constitution of India and it could take disciplinary action within the limits permitted by a restrictive law. After going through various provisions, this Court held that GREF was an integral part of the Armed Forces and the members of the GREF were the members of the Armed Forces within the mean- ing of Article 33 of the Constitution of India and the disciplinary action taken in that case was not ultra vires.
14.In fact, there is a noti cation dated 14-8-1985 which forms part of the paper book before us issued by the Government of India being No. F 81(l)/64-Eastt.70463/GREF which states that in view of the judg- ment in R. Viswan and Ors. v. Union of India and Ors., the Pres- ident of India is pleased to declare General Reserve Engineer Force to be an integral part of the Armed Forces of India.
15.Relying on the above said judgment and the order issued by the Government of India dated 14-
391
8-1986 and Section 4(1) of the Army Act, 1950, learned senior counsel for the appellant contended that GREF was a Force falling within the con- notation of Armed Forces under Ar- ticle 33 of the Constitution of India and that is why Section 4(1) of the Army Act was made applicable to the GREF and if that was the po- sition of law, the appellant was en- titled to claim that his past service fell within the de nition of \military service" under Rule 2 of the Pun- jab Government National Emergency (Concession) Rules, 1965.
16.There cannot be any di - culty, in view of the judgment of this Court in the above case and the sub- sequent noti cation dated 14-8-1985 issued by the Government of India, that the appellant's service in GREF could be treated as service in the \Armed Forces" for purposes of Ar- ticle 33 of the Constitution of India. But the question is whether that is su cient for the purpose of attract- ing Rule 2 of the above said 1965 Punjab Rules dated 21-7-1965 ?
17.We have already extracted the above rule and it would be no- ticed that the military service which would be counted as service must be service as an \enrolled" or \commis- sioned" o cer in the \three wings" of the Indian Armed Forces (including the service as Warrant O cer) That is what Rule 2 of the Punjab Rules of 1965 requires.
18.It appears to us that the words, \three wings" used in Rule 2 of the above said Rules has to be un- derstood in the light of Section 3(xi) of the Army Act, 1950 which de nes,
the word, the Forces' as the regular Forces, namely, the Army, Navy and Air Force or any part of any one or more of them. The Punjab Rules permitting computation of 'military service' therefore, appear to us to re- strict the bene t of military service only to those O cers who are en- rolled or commissioned in the three principal wings of the Armed Forces, namely, Army, Navy and Air Force and it was not intended to extend to any other Armed Force to which the provisions of the Indian Army Act are extended under Section 4(1) of the Army Act, 1950.
19.Thus, even though the ap- pellant can be said to belong to the \Armed Forces" for purposes of the Army Act and Article 33 of the Con- stitution of India, and even assum- ing that he was enrolled or commis- sioned in the GREF, still his service could not be treated as service ren- dered in the \three principal wings" of the Armed Forces, namely, Army Navy and Air Force. We are, there- fore, of the view that the judgment of the Division Bench of the High Court is correct and the appellant is not entitled to count his service in the GREF for the purpose of seniority in the provincialised service under the State of Punjab. The Punjab Rules of 1965 are thus not applicable to the appellant.
20.Learned senior counsel for the appellant, however, invited our at- tention to a statement made in the counter a davit led by Mr. Om Prakash Tandon, PGS (I), Under Secretary to Government of Punjab, Department of Local Government on
| 392 | Sukhdev Singh Gill v. State Of Punjab 2000) |
behalf of Respondent Nos. 1 & 2 in the writ petition. (Respondent No. 1 in the writ petition is the State of Punjab and respondent No. 2 is the Director, Local Self Government De- partment, Punjab, Chandigarh). At page 75 of the paper book, we nd in the said counter a davit led by the said O cer it was stated that the appellant was entitled for the ben- e t of previous military service for the purpose of \pay and leave" but he was not entitled for the bene t of said service for \seniority". We take
note of the fact that such a statement is made in the counter a davit.
21. For the aforesaid reasons, this appeal fails and is hereby dismissed, but in the circumstances of the case with no order as to costs.
CIVIL APPEAL NO. 500 OF 1992
22. In view of the order passed in Civil Appeal No. 499 of 1992, this appeal also fails and is hereby dis- missed, but in the circumstances of the case with no order as to costs.
Chapter 34
Union Of India v. R P Yadav 2000
Union Of India & Others v. R.P. Yadav on 10 May, 2000 Author: D Mohapatra Bench: K.T.Thomas, D.P.Mohapatro
PETITIONER:
UNION OF INDIA & OTHERS
| v. | ||
| RESPONDENT: | ||
| R.P. YADAV | ||
| DATE | OF | JUDGMENT: |
| 10/05/2000 | ||
| BENCH: | ||
K.T.Thomas, D.P.Mohapatro
JUDGMENT:
D.P. MOHAPATRA,J.
Leave granted.
The question that arises for determination in these appeals is whether an Arti cer Apprentice of Indian Navy who has been given a re- engagement for a certain period after obtaining his consent for it is enti- tled to withdraw the consent and de- mand his release from the force as of
right? Another question which also arises is what bearing the decision of this Court in Anuj Kumar Dey and Another v. Union of India and oth- ers 1997 (1) SCC 366 on the above question.
In the appeal arising from SLP
(C) No.9839 of 1999, the respondent R.P. Yadav has already been released from the force in compliance with the direction of the Delhi High Court in the impugned judgment. Indeed in the Order dated 14-2-2000, this Court recorded the submission of Mr. Soli J. Sorabjee, learned Attorney General for India, that so far as the respondent R.P. Yadav is concerned, the Union of India is only interested in having the question of law decided and even if it is decided in favour of the Union of India, they will not deny the bene t which R.P. Yadav has claimed in this petition. The pe- riod of re-engagement granted in the case of R.P. Yadav has also expired. But in the case of Raj Kumar, the re- spondent in the appeal arising from
| 394 | Union Of India v. R P Yadav 2000 |
SLP (C) No. 16848 of 1999, the pe- riod of re-engagement granted to the said respondent is due to expire on 31st January, 2002. Therefore, it will be convenient to refer to the relevant facts in the case of Raj Kumar that is the civil appeal arising from SLP
(C) No.16848 of 1999.
Raj Kumar was appointed as an Arti cer Apprentice in the Indian Navy on 14-1-1983. The period of initial engagement of 15 years ex- pired on 31-1-1998. Before expiry of the said period he exercised op- tion for re-engagement for a fur- ther period of four years and signed the requisite papers on 26-4-1996. The option was accepted and re- engagement till 31-1-2002 was ap- proved by the competent authority. On 9-4-1997, the respondent made a request for withdrawl of his option for re-engagement and cancellation of the order. The request was turned down by the authority vide the rejec- tion order dated 11-6-1997. He led the writ petition, CW No. 3833 of 1997, before the Delhi High Court seeking the following reliefs:
\[i] issue a writ of certiorari or any other appropriate writ, order or direction quashing the impugned or- der dated 11- 06-97.
[ii] issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to release the petitioner on the sched- uled date of 31- 01-98 and grant him the pension and other retiremental bene ts as applicable to on the ex- piry of 15 years including 4 years training period".
The main contention raised by the respondent in support of his case was that he had given his option for re-engagement under the impression that the period of 4 years of ini- tial training after appointment was not to be counted for the purpose of qualifying service for pension and therefore he has to serve for four years more to earn pension under the rules. This Court in A.K. Dey & another v. Union of India & oth- ers (supra) ruled that the period of initial training is also a part of qual- ifying service for the purpose of pen- sion. The contention by the respon- dent was that in view of the change in the legal position brought about the decision of this Court, it is no more necessary for him to continue in service and he should be released from the force with all retiral bene-ts with immediate e ect. A learned single Judge of the High Court of Delhi by the Judgment dated 4th May, 1999, accepted the case of the respondent, allowed the writ petition and issued the direction, \the respon- dents shall release the petitioners and send them to Commodore, Bureau of Sailors Chhetah Camp, Mankhurd, Mumbai-400 088, within 3 months for this purpose". The learned Judge further ordered that the respondents shall pass appropriate orders releas- ing the petitioner granting him all retiral bene ts. The respondents in the writ petition led letters patent appeal, LPA No. 327 of 1999, chal- lenging the above judgment/order of the learned single Judge. The appeal was dismissed by a Division Bench of the High Court by the Judgment dated 3-8-1999, which is under chal-
395
lenge in the present appeal led by the respondents of the writ petition.
The factual position in the case of R.P. Yadav is similar on all material aspects excepting the di erence as noted above. The case of the respon- dents in the writ petition, shortly stated, was that an Arti cer Appren- tice who is granted re- engagement for a certain period after obtaining his consent cannot subsequently re- sile from it and cannot claim release from the force as a matter of right. It was the further case of the respon- dents that the decision of this Court in A.K. Dey (supra) has no bearing on the controversy raised in the case.
On the case of the parties gist of which has been stated above, the points formulated earlier arise for determination. The thrust of the contentions of Shri Altaf Ahmed, learned Additional Solicitor General was that the practice prevailing in the Navy is to ask for option of the Arti cer Apprentice concerned, his option for re-engagement much before (one year) completion of the initial period of engagement ( fteen years then) so that the authorities may have su cient time to collect in- formations about the vacancy posi- tion and proper planning for main- taining the strength of the Naval Force can be made well in time. This, according to the learned counsel is necessary to keep the force in readi- ness for any eventuality. Elucidating the paint, the learned counsel sub- mitted that if the case of the respon- dent is accepted then an Arti cer Apprentice who is a 'Sailor' as held by this Court in A.K. Dey (supra),
can just walk out of the force at any time according to his sweet will and such a situation will seriously erode the discipline and e ciency of the Navy.
Shri K.G. Bhagat, learned coun- sel appearing for the respondent, on the other hand, contended that in A.K. Dey (supra), this Court has held that the period of initial train- ing of four years as an Arti cer Ap- prentice is to be taken into account for the purpose of determining the qualifying service for pension which under the service rules/regulations is 15 years. This position came to the knowledge of the respondent and the authorities concerned only after the Judgment in A.K. Dey's case was rendered. The position of law laid down by this Court is binding on the authorities concerned and therefore they cannot stand on the way of re- lease of the respondent from the force on completion of 15 years which is also the qualifying service for pen- sion. The learned counsel further contended that it is how the matter has been understood by o cers of the department which is evident from the letter HQNTG/3/ADM[S]/I of the Director(ADL) dated 9-4-1997, rec- ommending the case of the respon- dent for release.
In our view the answer to therst question rests on the interpre- tation of relevant provisions of the Navy Act, 1957, The Navy (Disci- pline and Misc. Provision) Regula- tion 1965 and Navy Order No. Stp 17 of 1994 regarding re-engagement of 'Sailors' (RP/0805/93). In Section 3 (20) \sailor" is de ned as a per-
| 396 | Union Of India v. R P Yadav 2000 |
son in the naval service other than an o cer. In Section 11, it is laid down inter alia, that no person shall be enrolled as a sailor in the In- dian Navy for a period exceeding 15 years (subsequently amended as 20 years) in the rst instance. In Sec- tion 14(1) it is provided that sub- ject to the provisions of sub-section (4), o cers and sailors shall be liable to serve in the Indian Navy or the Indian Naval Reserve Forces, as the case may be, until they are duly dis- charged, dismissed, dismissed with disgrace, retired, permitted to resign, or released. In sub-section (2), it is laid down inter alia that no sailor shall be at liberty to resign his post except with the permission of the prescribed o cer.
Chapter V contains the provi- sions regarding conditions of ser- vice. In Section 15, which deals with tenure of service of o cers and sailors it is declared in sub-section
(1) that every o cer and sailor shall hold o ce during the pleasure of the President. In sub-section (2), it is laid down that subject to the pro- visions of this Act and the regula- tions made thereunder,- (a) the Cen- tral Government may discharge or re- tire from the naval service any o - cer; (b) the Chief of the Naval Sta or any prescribed o cer may dismiss or discharge from the naval service any sailor. In Section 16, it is pro- vided inter alia that a sailor shall be entitled to be discharged at the expiration of the term of service for which he is engaged unless - (a) such expiration occurs during active ser- vice in which case he shall be li-
able to continue to serve for such further period as may be required by the Chief of the Naval Sta ; (b) he is re-enrolled in accordance with the regulations made under this Act. Section 17 which makes provision as to discharge provides in sub-section
(1) that a sailor entitled to be dis- charged under Section 16 shall be discharged with all convenient speed and in an case within one month of becoming so entitled. In sub-section
(3) of the said section it is laid down that notwithstanding anything con- tained in the preceding sub-sections, an enrolled person shall remain li- able to serve until he is duly dis- charged. This provision is made sub- ject to Section 18 which makes pro- vision regarding savings of powers of dismissal by Naval tribunals. Chap- ter VI contains the provisions regard- ing service privileges. In Chapter VII are included the provisions regarding pay, pension, etc. and maintenance of families. Chapter VIII contains the provisions regarding articles of war. In Section 41, it is provided in- ter alia that every person subject to naval law, who (a) deserts his post shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned.
Chapter XX which deals with provisions regarding regulations pro- vides in Section 184 (1) that the Cen- tral Government may, by noti cation in the o cial Gazette, make regula- tions for the governance, command, discipline, recruitment, conditions of service and regulation of the naval forces and generally for the purpose
397
of carrying into e ect the provisions of this Act.
Reliance has been placed on the Navy Order No. (Str.)17 of w1994 by learned Additional Solicitor General in which are contained the provisions regarding re-engagement of sailors. In introduction to this Navy Order it is stated inter alia that the pe- riod of enrollment in respect of non Arti cer /Arti cer sailor and terms and conditions governing their fur- ther re-engagement of service have been laid down in this Navy Order. In clause (4) it is declared grant of re-engagement is subject to service requirement, and is not to be con- strued as a matter of right. Depend- ing upon the requirement of service a sailor can be re- engaged only if he ful lls the conditions set out in clause
(4). The criteria for re-engagement are provided in clause (5) of the Or- der.
In clause (6) it is laid down that a sailor is required to exercise his option for re-engagement for further service on the following occasions :
(a) On receipt of Expiry of Engage- ment Serial from CABS. (b) On se- lection for higher rank professional courses/specialist courses/non- professional pre-promotion courses in India (c) On selection for Depu- tation for new acquisitions/ courses postings abroad.
In clause (13) provision is made, inter alia, that on publication of Ex- piry of Engagement Serial if a sailor does not wish to re-engage for fur- ther service a certi cate of unwilling- ness as per Appendix 'D' to this or- der is obtained from him. A copy
of this certi cate is to be retained with sailors service documents and another forwarded to the Bureau of Sailors, Bombay. Under sub-clause
(c) of this Regulation it is provided that sailors who have once expressed their unwillingness to sign an under- taking for further service and sub- sequently wish to be re-engaged on promotion, will be considered for re- engagement only if they are willing to sign for a minimum period of two years, provided the request is put up at least nine months prior to the date of release. In the said provision it is expressly declared that \short term re-engagements of one to nine months in order to earn pension of the rank will not be granted". (em- phasis supplied).
In clause (16) of the order it is made explicit that re-engagement is a service requirement, therefore, there is no provision to give re- engagement to sailors only on com- passionate grounds; however, while reviewing the re-engagement cases of deserving cases, the welfare of sailors is also given due consideration to the possible extent. Clause 18 of the Naval order which is important for the purpose of the present case reads as follows:
\18. Cancellation of Re- engagement. Once re-engagement has been granted to a sailor conse- quent to his willingness, the engage- ment will generally not be cancelled due to any altered circumstances af- fecting the sailor. The sailor will be required to serve up to the period re-engaged for.
The provisions of the Naval
| 398 | Union Of India v. R P Yadav 2000 |
Str.17, leave no manner of doubt that re-engagement of sailors can neither be claimed by a sailor as a mat- ter of right nor can cancellation of re-engagement and release from the force be claimed by a sailor as a mat- ter of right. It is to be decided by the competent authority keeping in view the relevant factors, the most important one being the service re- quirements.
From the conspectus of the rele- vant provisions of the Act, the Regu- lations and the Navy Orders includ- ing those noted above, the position is manifest that the Naval Service is to be maintained as a highly disci- plined service always kept in readi- ness to face any situation of emer- gency. The personnel of the naval service are provided with various fa- cilities and privileges di erent from those available to other civil services.
As noticed earlier in Section 16 of the Act a provision is made that a sailor shall be entitled to be dis- charged at the expiration of the terms of service for which he is en- gaged. One of the circumstances when this general rule shall not apply is that he is re-enrolled in accordance with the requirements made in the Act. No provision in the Navy Reg- ulations, 1965, has been brought to our notice which expressly or by im- plication provides that a sailor can at any time during the subsistence of period of re-engagement demand release from service. On the con- trary a fair reading of the provisions of the Regulations shows that a very high standard of discipline is to be maintained by members of the Naval
Force including sailors. Under Regu- lation 127 sailors who may have quit their ships without leave, or have overstayed their leave or have im- properly absented themselves when detached on duty, and who may be apprehended before the expiration of seven days, beyond the precincts of a dockyard or other government es- tablishment in which they may have been employed, shall be treated ei- ther as absentees or as deserters, ac- cording to the circumstances which are to be judged by their respective commanding o cers. From provi- sions in the Regulations it is also manifest that stringent measures of punishment are prescribed for any act of indiscipline. It is also a matter of common knowledge that the Naval Force which is entrusted with the sacred duty of guarding the shores of the country against any form of aggression should be a highly disci- plined and e cient service.
An incidental question that arises is whether the claim made by the respondents to be released from the force as of right is in keeping with the requirements of strict discipline of the Naval Service. In our consid- ered view the answer to the question has to be in the negative. To vest a right in a member of the Naval Force to walk out from the service at any point of time according to his sweet will is a concept abhorrent to the high standard of discipline expected of members of defence services. The consequence in accepting such con- tention raised on behalf of the re- spondents will lead to disastrous re- sults touching upon security of the
399
nation. It has to be borne in mind that members of the defence services including the Navy have the proud privilege of being entrusted with the task of security of the Nation. It is a privilege which comes the way of only selected persons who have suc- ceeded in entering the service and have maintained high standards of e ciency. It is also clear from the provisions in Regulations like Regu- lation 217 and 218 that persons who in the opinion of the prescribed au- thority, are not found permanentlyt for any form of naval service may be terminated and discharged from the service. The position is clear that a sailor is entitled to seek discharge from service at the end of the pe- riod for which he has been engaged and even this right is subject to the exceptions provided in the Regula- tions. Such provisions, in our consid- ered view, rule out the concept of any right in a sailor to claim as of right release during subsistence of period of engagement or re-engagement as the case may be. Such a measure is required in the larger interest of the country. A sailor during the 15 or 20 years of initial engagement which in- cludes the period of training attains a high degree expertise and skill for which substantial amounts are spent from the exchequer.
Therefore, it is in the tness of things that the strength of the Naval Force to be maintained is to be de- termined after careful planning and study. In a situation of emergency the country may ill a ord losing trained sailors from the force. In such a situation if the sailors who
have completed the period of initial engagement and have been granted re-engagement demand release from the force and the authorities have no discretion in the matter, then the ef-ciency and combat preparedness of the Naval Force may be adversely af- fected. Such a situation has to be avoided. The approach of the High Court that a sailor who has com- pleted 15 years of service and thereby earned the right of pension can claim release as a matter of right and the authority concerned is bound to ac- cept his request does not commend us. In our considered view, the High Court has erred in its approach to the case and the error has vitiated the judgment.
At this stage it will be relevant to deal with the contention which has been raised on behalf of the re- spondents that they agreed for re- engagement only for the reason that they were not eligible to receive pension under the Navy (Pension) Amendment Regulations, 1982, and since that position no longer holds good in view of the decision of this Court in Anuj Kumar Dey's case (supra) they are entitled to with- draw the option given by them ear- lier. This contention is wholly un- acceptable and has to be rejected. Reasons for which a sailor may ex- ercise option for re-engagement may be very many. Such reasons will vary from person to person. No provision in the Act or Regulation has been placed before us which shows that the sailor is required to state the rea- son in support of the option given by him for re-engagement. Therefore,
| 400 | Union Of India v. R P Yadav 2000 |
the reason which played in the mind of the sailor concerned to exercise option in favour of re-engagement is not relevant for determination of the question raised in the case. In that view of the matter the decision of this Court in Anuj Kumar Dey's case (supra) is of little assistance to the respondents in the case. All that was decided by this Court in that case is that the training period as Arti-cer Apprentice, will be included in the computation of the qualifying pe- riod of service for earning pension for the reason that during the pe- riod of training as Arti cer Appren- tice the sailor was in the service of the Navy. This Court did not con- sider any other question which may
have a direct or indirect bearing on the controversy raised in the present case. It follows that the decision of this Court in Anuj Kumar Dey's case (supra) cannot provide a legitimate basis for claim of the respondents to be discharged from the Naval force as a right.
In the result the appeals are allowed. The Judgment of the learned single Judge of the High Court in C.W.P. No. 3833/97 dated 4.5.99 as con rmed by the Divi- sion Bench of the High Court of Delhi in L.P.A.No.327 of 1999 and C.W.P. No. 1368/98 as con rmed in L.P.A.No. 579/98, are set aside. There will however, be no order as to costs.
Chapter 35
Union Of India v. Harjeet Singh Sandhu 2001
Union Of India And Ors. v. Har- jeet Singh Sandhu Etc. on 11 April, 2001 Equivalent citations: AIR 2001 SC 1772, JT 2001 (4) SC 597, 2001 LablC 1707 Author: R Lahoti Bench: R Lahoti, B Kumar, . A Anand
JUDGMENT
R.C. Lahoti, J.
1. Harjeet Singh Sandhu, the re- spondent in S.L.P.(C) No.5155/1998 was a captain in the Army. On the night intervening 27th & 28th March, 1978, the respondent along with three other o cers interrogated one Bhagwan Das, who was also a defence employee, in connection with an incident of theft. During the course of interrogation the respon- dent and his co-associates used third degree methods in orders to extract a confession as a result whereof Bhag- wan Das died. A General Court mar- tial (GCM, for short) was convened under Section 109 of Army Act, 1950 which tried the respondent and the other o cers. On 26.12.1978 the GCM awarded the sentence of forfei-
ture of three years service for pur- pose of promotion and severe repri- mand to the respondent. The con-rming authority formed an opinion that the sentence passed on the re- spondent was very lenient and there- fore vide order dated 19.4.1979, in exercise of the powers conferred by Section 160 of the Army Act sent the case back for revision. On 10.5.1979, the GCM, on revision, enhanced the punishment in icted on the respon- dent to forfeiture of three years of service for the purpose of promotion and also for the purpose of pay and pension. On 24.9.1979 the Chief of the Army Sta in exercise of the power conferred by Section 165 an- nulled the GCM proceedings on the ground that the proceedings were un- just. On 20.12.1979, a show cause notice was issued to the respondent under Section 19 of the Act read with Rule 14 of the Army Rules, 1954 (hereinafter the Rules, for short) call- ing upon the respondent to show cause why his services should not be terminated. Reply was led by the
| 402 | Union Of India v. Harjeet Singh Sandhu 2001 |
respondent defending himself. On 16.7.1982 a fresh cause notice was issued to the respondent requiring him to show cause why his service be not terminated under Section 19 read with Rule 14. Both the notices dated 20.12.1979 and 16.7.1982 recorded on the part of the Chief of the Army Sta - (i) a satisfaction that the re- spondent's retrial by a court mar- tial consequent to the annulment of the GCM proceedings was impracti- cable, and (ii) formation of opinion that the respondent's further reten- tion in the service was undesirable. The latter notice also stated that the earlier notice was thereby cancelled though the reason for such cancella- tion was not mentioned. The respon- dent led a reply dated 9.9.1982 in defence of himself. On 2.1.1984 the Chief of the Army Sta passed an or- der dismissing the respondent from service. On 16.2.1984 the respon- dent led a civil writ petition before the High Court of Allahabad laying challenge to the order of termination. The singular contention raised before the High Court was that the incident, in which the respondent was involved had taken place in the night inter- vening 27th & 28th March, 1979 and Court martial proceedings had be- come barred by time on 28th March, 1981 under Section 122 of the Act whereafter Section 19 of the Act was not available to be invoked. The High Court of Allahabad in its im- pugned judgment, formed an opin- ion that the decision of this Court in Major Radha Krishan v. Union of India , squarely applies to the facts of this case and therefore the exer- cise of power under Section 19 read
with Rule 14 was vitiated. The writ petition has been allowed and the im- pugned order of termination dated 2.1.1984 has been quashed.
2. In S.L.P(C) No.3233/2000 the respondent Harminder Kumar was a Captain in the Army. In the year 1979 the respondent was found blameworthy for discrepancies in re- spect of stocks in Fuel Petroleum Depot, Leh between the period 10.3.1979 to 22.3.1979. Summary of evidence having been recorded, on 5.8.1981 a General Court Martial was ordered to be convened on 18.8.1981. On 14.8.1981 the respondent led a civil writ petition under Article 32 of the Constitution of India in this Court wherein, by an interim order, the proceedings in the court mar- tial were directed to be stayed. On 26.11.1982 the writ petition led by the respondent was dismissed, con- sequent whereupon the interim or- der of stay also stood vacated. On 7.2.1983 the respondent as informed that General Court Martial against the respondent was xed to be con- vened on 28.2.1984. However, on 28.2.1984 the Chief of the Army Sta in exercise of the power conferred by Section 19 read with Rule 14 is- sued a notice to the respondent call- ing upon him to show cause why his services be not terminated in view of the fact that the court martial proceedings against the respondent were impracticable and the Chief of the Army Sta was of the opinion that further retention of the respon- dent in the service was not desir- able. Immediately, the respondentled a writ petition in the High Court
403
of Delhi submitting that the general court martial proceedings having be- come barred by time against him on account of lapse of three years from the date of the o ence, the notice issued to him was without jurisdic- tion. Vide order dated 8th Septem- ber, 1998 the High Court has held, placing reliance on the decision of this Court in Major Radha Krishan v. Union of India , that once the court martial proceedings have be- come time-barred the Chief of the Army Sta could not have had re- course to Section 19 of the Act read with Rule 14 of the Rules. Conse- quently, the writ petition has been allowed and show cause notice dated 8th February, 1984 directed to be quashed.
3.The Union of India has led these petitions for special leave to ap- peal.
4.Delay condoned in ling SLP(C) No.5155/1998.
5.Leave granted in both the
SLPs.
6.We have heard Shri Altaf Ah- mad, the learned Additional Solicitor General for the appellant and Shri Prem Prasad Juneja, Ms. Indu Mal- hotra and Shri A. Mariarputham, Advocates for the respondents. The principal plea raised on behalf of the appellant and forcefully pressed by the learned Additional Solicitor Gen- eral at the time of hearing was the Major Radha Krishan's case was not correctly decided and therefore needs to be reconsidered by this Court for two reasons: rstly, because Major Radha Krishan's case is a decision
rendered by two Judges-Bench which does not take notice of the law laid down by this Court in Chief of Army Sta v. Major Dharam Pal Kukrety - which is three-judges Bench decision; and secondly, the proposition laid down therein is too wide a proposi- tion wholly unsustainable in the light of the express provisions contained in the Army Act and the Army Rules and the underlying scheme of the Legislation.
7. We would rst set out the facts in brief and the ration of the decisions rendered by this Court in the case of Major Radha Kr- ishan (supra) and Major Dharam Pal Kukrety (supra) before dealing with other contentions raised by the learned counsel for the parties be- cause the major part of submissions made by the learned counsel center around the above said two decisions.
8. To appreciate the ratio of the above said two cases it will be nec- essary to keep in view the provisions contained in Section 19 and 122 of the Army Act, 1950 and Rule 14 of Army Rules, 1954 which are ex- tracted and reproduced hereunder :-
Army Act, 1950
19. Termination of Service by Central Government. - Subject to the provisions of this Act and the rules and regulations made thereun- der the Central Government may dis- miss, or remove from the service, any person subject to this Act.
122.Period of limitation for trial.
-(1) Except as provided by sub- section (2), no trial by court mar- tial of any person subject to this Act
| 404 | Union Of India v. Harjeet Singh Sandhu 2001 | |||
| for any o ence shall be commenced | Army Rules, 1954 | |||
| after the expiration | of a period of | [14. | Termination of service by | |
| three years [and such period shall | ||||
| the Central Government on account | ||||
| commence, - | of misconduct. - (1) When it is pro- | |||
(a)on the date of the o ence; or posed to terminate the service of an
(b)where the commission of the o cer under section 19 on account of
| o ence was not known to the person | misconduct, he shall be given an op- | |
| aggrieved by the o ence or to the au- | portunity to show cause in the man- | |
| thority competent to initiate action, | ner speci ed in sub-rule (2) against | |
| the rst day on which such o ence | such action - | |
| comes to the knowledge of such per- | Provided that this sub-rule shall | |
| son or authority, whichever is earlier; | not apply - | |
| or | (a) where the service is termi- | |
| (c) where it is known by whom | nated on the ground of misconduct | |
| the o ence was committed, the rst | which has led to his conviction by a | |
| day on which the identity of the of- | criminal court; or | |
| fered is known to the person ag- | (b) where the Central Govern- | |
| grieved by the o ence or to the au- | ||
| ment is satis ed that for reasons, to | ||
| thority competent to initiate action, | be recorded in writing, it is not ex- | |
| whichever is earlier.] | pedient or reasonably practicable to | |
| (2) The provisions of sub-section | give to the o cer an opportunity of | |
| (1) shall not apply to a trial for an of- | showing cause. | |
| fence of desertion or fraudulent enrol- | (2) When after considering the | |
| ment or for any of the o ences men- | ||
| reports on an o cer's misconduct, | ||
| tioned in section 37. | the Central Government or the Chief | |
| (3) In the computation of the pe- | of the Army Sta is satis ed that the | |
| riod of time mentioned in sub-section | trial of the o cer by a court martial | |
| (1), any time spent by such person as | is inexpedient or impracticable, but | |
| a prisoner of war, or in enemy terri- | is of the opinion, that the further re- | |
| tory, or in evading arrest after the | tention of the said o cer in the ser- | |
| commission of the o ence, shall be | vice is undesirable, the Chief of the | |
| excluded. | Army Sta shall so inform the o - | |
| (4) No trial for an o ence of de- | cer together with all reports adverse | |
| sertion other than desertion on ac- | to him and he shall be called upon | |
| tive service or of fraudulent enrol- | to submit in writing, his explanation | |
| ment shall be commenced if the per- | and defence: | |
| son in question, not being an o cer, | Provided that the Chief of the | |
| has subsequently to the commission | Army Sta may withhold from dis- | |
| of the o ence, served continuously in | closure any such report or portion | |
| any exemplary manner for not less | thereof if, in his opinion, its disclo- | |
| than three years with any portion of | sure is not in the interest of the se- | |
| the regular Army. | curity of the State. |
| 405 | |||
| In the event of the explanation | tion of the Chief of the Army Sta , | ||
| of the o cer being considered unsat- | may - | ||
| isfactory by the Chief of the Army | (a) dismiss or remove the o cer | ||
| Sta , or when so directed by the | |||
| with or without pension or gratuity; | |||
| Central Government, the case shall | or | ||
| be submitted to the Central Govern- | (b) compulsorily retire him from | ||
| ment, with the o cer's defence and | |||
| the service with pension and gratu- | |||
| the recommendation of the Chief of | |||
| the Army Sta as to the termination | ity, if any, admissible to him.]] | ||
| of the o cer's service in the manner | 9.Other provisions of the Act and | ||
| the Rules, to the extent necessary, | |||
| speci ed in sub-rule (4). | |||
| shall be adverted to as and when re- | |||
| (3) Where, upon the conviction | |||
| of an o cer by a criminal court, the | quired. | ||
| Central Government or the Chief of | 10. | In Major Radha Krishan's | |
| case the o cer had committed mis- | |||
| the Army Sta considers that the | |||
| conduct of the o cer which has led | conduct and the trial thereof by | ||
| to his conviction renders his further | Court martial had become time- | ||
| retention in service undesirable a cer- | barred under Section 122 of the Act | ||
| ti ed copy of the judgment of the | whereafter, on 10.9.1990, a notice | ||
| criminal court convicting him shall | was issued by the Chief of the Army | ||
| be submitted to the Central Gov- | Sta to the o cer which inter alia | ||
| ernment with the recommendation of | stated - \and whereas the COAS is | ||
| the Chief of the Army Sta as to the | further satis ed that your trial for | ||
| termination of the o cer's service in | the above misconduct is impractica- | ||
| the manner speci ed in sub-rule (4). | ble having become time-barred by | ||
| [(4) When submitting a case to | the time the court of inquiry was - | ||
| the Central Government under the | nalised and he is of the opinion that | ||
| provisions of sub-rule (2) or sub-rule | your further retention in service is | ||
| (3), the Chief of the Army Sta shall | undesirable". This Court for the pur- | ||
| make his recommendation whether | pose of nding out the meaning of | ||
| the o cer's service should be termi- | 'impracticable', the term occurring | ||
| nated, and if so, whether the o cer | in sub-rule (2) of Rule 14, referred | ||
| should be - | to dictionary meanings of 'imprac- | ||
| ticable', and 'inexpedient' and then | |||
(a)dismissed from service; or concluded that 'impracticability' is a
(b)removed from service; or concept di erent from 'impossibility'
(c)Compulsory retired from the for while the latter is absolute, the
| service. | former introduces at all events some | |
| degree of reason and involves some | ||
| (5) The Central Government af- | ||
| regard for practice. As the provision | ||
| ter considering the reports and the | of limitation prescribed under Act | |
| o cer's defence, if any, or the judg- | prohibited a trial by court martial | |
| ment of the criminal court, as the | being held on expiry of the period of | |
| case may be, and the recommenda- |
| 406 | Union Of India v. Harjeet Singh Sandhu 2001 |
limitation such a provision could not be overridden by invoking Section 19 and thus achieving a purpose by an administrative act which could not be achieved by holding a trial under a statutory provision. Once a mis- conduct was rendered legally impos- sible and impermissible to be tried on account of bar of limitation it could not be said that the trial of the of-cer was impracticable and therefore resort could not be had to sub-Rule
(2) of Rule 14. Vide para 10, yet an- other reason assigned by this court is that the satisfaction with regard to inexpediency or impracticability of a trial by Court martial must be ar- rived at only on consideration of the reports of misconduct for the pur- pose of resorting to Rule 14. The satisfaction regarding the inexpedi- ency or impracticability to hold a Court martial must ow from the na- ture and the context of the miscon- duct itself and not from any other extraneous factor such as that the Court martial proceedings had be- come time-bared. The contention ad- vanced on behalf of the o cer was, in the view of the court, 'indefen- sible'. Vide paras 11 and 12, this court held that the misconduct and other attending circumstances relat- ing thereto have to be the sole ba- sis for obtaining a satisfaction within the meaning of Rule 14(2) and dis- pensing with a trial on a satisfaction de hors the misconduct - like the bar of limitation - will be wholly alien to rule 14(2). Dharam Pal Kukrety's case was neither placed before nor considered by the learned judges de- ciding Major Radha Krishan's case.
11. Major Dharam Pal Kukrety was a permanent commissioned o - cer of the Indian Army holding the substantive rank of Captain and act- ing rank of Major. He was tried by a general court martial on four charges referable to certain incidents which had taken place on November 6 and 7, 1975. On March 13, 1976 the court martial announced its nd- ing (subject to con rmation) of 'not guilty of all the charges'. The con-rming authority did not con rm the verdict and by order dated Aril 3, 1976 sent back the nding for revi- sion. The same general court mar- tial re-assembled on April 14, 1976. Once again the general court mar- tial, adhering to its original view, announced the nding that the re- spondent was \not guilty of all the charges" (subject to con rmation). On May 25, 1976 the con rming au- thority refused to con rm the nd- ing and promulgated, as required by Rule 71, the charges against the o - cer, the ndings of the court martial and the non-con rmation thereof. Thereafter, the Chief of the Army Sta exercising power under Rule 14 issued a show cause notice dated November 12, 1976 which notice recorded inter alia the satisfaction of the COAS that a fresh trial by a court martial for the said o ences was inexpedient, as also his opin- ion that the o cer's misconduct ren- dered his further retention in the ser- vice undesirable. The o cer led a civil writ petition in the High Court of Allahabad laying challenge to the validity of the show cause notice. The contention of the o cer was that there was an initial option either to
407
have the o cer tried by a court mar- tial or to take action against him under Rule 14 and the option hav- ing been exercised to try him by a court martial and the o cer hav- ing been acquitted both at the time of the original trial and on revision, it was not competent for the Chief of the Army Sta to have recourse to Rule 14. The contention found favour with the High Court. The High Court held that the o cer hav- ing been in fact tried by a court mar- tial twice and a verdict of not guilty having been rendered twice the im- pugned notice Rule 14 was without jurisdiction. In the appeal preferred by Chief of the Army Sta before this Court two contentions were raised on behalf of the o cer : rstly, that it could not be said that the trial of the o cer by a court martial was inex- pedient or impracticable as in fact he had been tried by a court mar- tial; and secondly, that on a true con- struction of Rule 14 the Central Gov- ernment or the Chief of the Army Sta had an initial option to have the o cer tried by a Court martial or to take action against him un- der Rule 14 and if the decision to have the o cer tied by court martial was taken then action under Rule 14 was not permissible in case of nd- ing of acquittal being rendered by the court martial. Vide para 14, this court noticed decisions rendered by di erent High Courts of the coun- try throwing light on the issue before the Court. Allahabad High Court was of the view that in spite of non- con rmation of the nding and sen- tence passed by the court martial such nding and sentence did exist
though they could not be put into e ect for want of con rmation and therefore a second trial by court mar- tial would be barred. Jammu & Kashmir High Court was of the view that the Legislature could not have reasonably intended that an o cer convening a general court martial can go on dissolving such courts martial and reconstituting them ad in nitum until he obtained a verdict or a nd- ing of his own liking. Such a deci- sion would not only be against pub- lic policy and violative of the rule of double jeopardy but would also reduce the provisions of the Army Act to a mockery and give an ap- pearance of mala des. Having no- ticed the decisions of High Courts, this Court then concentrated on the question whether in such a case trial by a court martial is inexpedient or impracticable? Dictionary meaning of the term 'inexpedient' was relied on. The Court then summed up its conclusion as under :-
\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 reten- tion 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 nitive 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-
| 408 | Union Of India v. Harjeet Singh Sandhu 2001 |
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 unwarranted in law."
12.The decision of Allahabad High Court under appeal was re- versed and the writ petition led by the respondent therein was directed to be dismissed.
13.We would revert back to the above two decisions of this Court a little afterwards. We now proceed to notice the legislative scheme un- derlying Section 19 of the Act and Rule 14 of the Rules. Section 19 of the Act and Rule 14 of the Rules are to be read together and as integral parts of one whole scheme. Section
191of the Act empowers the Cen- tral Government generally to make rules for the purpose of carrying into e ect the provisions of this Act and without prejudice to the generality of such power, speci cally to make rules providing for inter alia the removal, retirement, release or discharge from the service of persons subject to the Army Act. Section 19 empowers the Central Government to dismiss or re- move from the service any person subject to this Act which power is subject to: (i) the (other) provisions of this Act, and (ii) the rules and reg- ulations made under the Act. Un- der Section 193, all rules made un- der the Act shall be published in the o cial gazette and on such pub- lication shall have e ect as if en- acted in this Act. Under Section
193-A, such rules shall be laid be- fore each House of Parliament. In State of U.P. v. Babu Ram the Constitution Bench has held, quot- ing from Maxwell on Interpretation of Statutes, that rules made under a Statute must be treated for all pur- poses of construction or obligation exactly as if they were in the Act and are to be of the same e ect as if contained in the Act, and are to be judicially noticed for all purposes of construction and obligation; an ac- tion taken under the Act or the rules made thereunder must con rm to the provisions of the Act and the rules which have conferred upon the ap- propriate authority the power to take an action. The Constitution Bench decision has been followed by this court in State of Tamil Nadu v. M/s Hind Stone -
holding that a statutory rule, while ever subordinate to the parent statute, is, otherwise, to be treated as part of the statute and as e ective. [Also see Peerless General Finance and Investment Co.Ltd. v. Reserve Bank of India - .]
14. Section 19 and Rule 14 so read together and analysed, the fol- lowing legal situation emerges :-
1)The Central Government may dismiss, or remove from the service, any person subject to the Army Act, 1950, on the ground of misconduct.
2)To initiate an action under Section 19, the Central Government or the Chief of the Army Sta after considering the reports on an o cer's misconduct;
a) must be satis ed that the trial
409
of the o cer by a Court martial is inexpedient or impracticable,
b) must be of the opinion that the further retention of the said o cer in the service is undesirable.
3. Such satisfaction having been arrived at and such opinion having been formed, as above said, the o - cer proceeded against shall be given an opportunity to show cause against the proposed action which opportu- nity shall include the o cer being in- formed together with all reports ad- verse to him to submit in writing his explanation and defence. Any report on an o cer's misconduct or portion thereof may be withheld from being disclosed to the o cer concerned if the Chief of the Army Sta is of the opinion that such disclosure is not in the interest of the security of the State.
4) Opportunity to show cause in the manner as above said need not be given to an o cer in the following two cases:-
a)Where the misconduct forming the ground for termination of service is one which has led to the o cer's conviction by a criminal court;
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.
5) The explanation of the o cer shall be considered by the Chief of the Army Sta . If the explanation is found satisfactory, further proceed- ings need not be pursued. The expla- nation, if considered unsatisfactory
by the Chief of the Army Sta or when so directed by the Central Gov- ernment, in either case, hall be sub- mitted to the Central Government with the o cer's defence and the rec- ommendation of the COAS as to the termination of the o cer's service i.e. whether the o cer should be (a) dis- missed, or (b) removed, or (c) com- pulsorily retired, from the service.
6) The Central Government shall after taking into consideration the re- ports (on the o cer's misconduct) the o cer's defence, if any, and the recommendation of the COAS, shall take a decision which if unfavourable to the o cer may be (a) to dismiss or remove the o cer with or without pension or gratuity; or (b) to com- pulsorily retire him from service with pension and gratuity, if any, admissi- ble to him.
15. The case of an o cer whose service is proposed to be terminated on the ground of misconduct which has led to his conviction by a crimi- nal court is to be treated di erently. He need not be given an opportunity to show cause against the proposed termination. A decision as to termi- nation in one of the modes provided by sub-rule (4) of Rule 14 can be taken by the Central Government on its own or on the recommendation of the Chief of the Army Sta if he con- siders that the conduct of the o cer leading to his conviction renders his further retention in service undesir- able in which case his recommenda- tion accompanied by a certi ed copy of the judgment of the criminal court convicting him shall be submitted to the Central Government which will
| 410 | Union Of India v. Harjeet Singh Sandhu 2001 |
take the decision in accordance with sub-rule (5).
16. The learned ASG submitted that the defence services under the law of the land are treated as a class apart as can be spelled out from the di erent provisions of the Constitu- tion and the Army Act and other laws. As the defence of the country is involved, in the very nature of the things, a cautious approach has to be adopted while interpreting the sev- eral legal provisions, the security of the State and welfare of the nation being supreme. He submitted that under the scheme of the Legislation there is no warrant for holding that a decision to take action under Section 19 read with Rule 14 or to convene a court martial ,must be taken only in the rst instance and before the time limited for commencing court martial proceedings comes to an end. He fur- ther submitted that power vesting in the Central Government and Chief of the Army Sta under Section 19 of the Act can be exercised whether be- fore or after convening and holding trial by court martial and even af- ter the expiry of the limitation pre- scribed by Section 122 for commence- ment of the court martial. On the other hand, the learned counsel ap- pearing for the respondents (writ- petitioners before the High Court) submitted that the scheme of the Army Act and the Rules made there- under provides for an o cer subject to the Army Act being dealt with either by a criminal court or by a court martial or by an appropriate action under Section 19 of the Act and cannot be subjected to duality
of the proceedings, or to one of the three proceedings after the other one of the there has been set in motion and accomplished. To e more spe- ci c, submitted the learned counsel, once an o cer has been subjected to court martial proceedings or if such proceedings cannot be held or have proved to be abortive as having be- come barred by time or impossible or impermissible then Section 19 cannot be invoked. In order to test the valid- ity of such rival contentions forcefully advanced before us we would exam- ine the scheme of the Act and the im- plications of the relevant provisions contained therein.
17. Army defends the country and its frontiers. It is entrusted with the task of protecting against foreign invasion and preserving the national independence. The arduous nature of duties, the task they have to per- form in emergent situations and the unknown lands and unknown situa- tions wherein they have to function demand an exceptionally high stan- dard of behavior and discipline com- pared to their counterparts in civil services. That is why the military people command the respect of the masses. Such factors taken together demand the military services being treated as a class apart and a di er- ent system of justice - military jus- tice - being devised for them. Article 33 empowers the Parliament to re- strict or abrogate fundamental rights in their application to the members of the armed forces so as to en- sure the proper discharge of their du- ties and the maintenance of discipline among them. Right to le special
411
leave to appeal before the Supreme Court and power of superintendence vesting in the High Courts do not ex- tend over judgment, determination, sentence or order passed or made by any Court or Tribunal dealing with armed forces. Members of the defence services hold o ce during pleasure of the President under Ar- ticle 310 but they are not entitled to the protection o ered by Article 311. The principles of interpreta- tion of statutes which apply to any other statute also apply to the legis- lation dealing with defence services; however, the considerations of the se- curity of the State and enforcement of a high degree of discipline addi- tionally intervene and have to be as- signed weightage while dealing with any expression needing to be de ned or any provision needing to be inter- preted.
18. Section 19, with which we are concerned, is to be found placed in Chapter IV of the Act entitled 'Con- ditions of Service'. Chapter VI deals with o ences. Sections 34 to 68,nding place in Chapter VI are very widely worded and embrace within their realm practically every type of misconduct, its abetment and at- tempt as well, which any person sub- ject to the Act may commit. Section 69 de ned civil o ences, the com- mission whereof shall be triable by a court martial. Section 70 de nes civil o ences not triable by court martial. Chapter VII deals with punishments. Therein Section 71 provides as under:
\71. Punishments awardable by courts martial. - Punishments may be in icted in respect of o ences
committed by persons subject to this Act and convicted by courts martial, according to the scale following, that is to say,-
(a)death;
(b)transportation for life or for any period not less than seven years;
(c)imprisonment, either rigorous or simple, for any period not exceed- ing fourteen years;
(d)cashiering, in the case of o -
cers;
(e)dismissal from the service;
(f)reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of war- rant o cers; and reduction to the ranks or to a lower rank or grade, in the case of non-commissioned o - cers:
Provided that a warrant o cer reduced to the ranks shall not be re- quired to serve in the ranks as a se- poy;
(g)forfeiture of seniority of rank, in the case of o cers, junior commis- sioned o cers, warrant o cers and non-commissioned o cers; and for- feiture of all or any part of their ser- vice for the purpose of promotion, in the case of any of them whose promo- tion depends upon length of service;
(h)forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;
(i)severe reprimand or repri- mand, in the case of o cers, junior commissioned o cers, warrant o - cers and non-commissioned o cers;
(j)forfeiture of pay and al- lowances for a period not exceeding
| 412 | Union Of India v. Harjeet Singh Sandhu 2001 |
three months for an o ence commit- ted on active service;
(k)forfeiture in the case of a per- son sentenced to cashiering or dis- missal from the service of all arrears of pay and allowances and other pub- lic money due to him at the time of such cashiering or dismissal;
(l)stoppage of pay and al- lowances until any proved loss or damage accessioned by the o ence of which he is convicted is made good."
19.According to Section 74, be- fore an o cer is awarded any of the punishments speci ed in clauses (a) to (c) of Section 71, he shall be sen- tenced to be cashiered. Other provi- sions in this chapter are not relevant of our purpose.
20.Under Section 101, any person subject to this Act, who is charged with an o ence, may be taken into military custody. Chap- ter X deals with Courts Martial. Therein under Section 121, any per- son subject to this Act having been acquitted or convicted of an o ence by a court martial or a criminal court shall not be liable to be tried again for the same o ence. Section 122, provides period of limitation for com- mencement of trial by court martial. Once the period prescribed has ex- pired a trial before a court martial cannot be commenced.
21.Under Section 153 no nding or sentence of a court martial shall be valid unless con rmed as provided by the Act. Section 158 gives power to con rming authority to mitigate, re- mit or commute sentences. Section
165empowers the Central Govern-
ment, the Chief of the Army Sta or any prescribed o cer to annul the proceedings of any court martial on the ground that they are illegal or un- just.
22. 'Misconduct' as a ground for terminating the service by way of dis- missal or removal, is not to be found mentioned in Section 19 of the Act; it is to be read therein by virtue of Rule 14. Misconduct is not de ned either in the Act or in the Rules. It is not necessary to make a search for the meaning, for it would su ce to refer to State of Punjab & Ors. v. Ram Singh, Ex-Constable, wherein the term 'misconduct' as used in Punjab Police Manual came up for the consideration of this court. Hav- ing referred to the meaning of 'mis- conduct' and 'misconduct in o ce' as de ned in Black's Law Dictionary and Iyer's Law Lexicon, this court held:-
\.... the word 'misconduct' though not capable of precise de - nition, on re ection receives its con- notation from the context, the delin- quency in its performance and its ef- fect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behavior; unlawful behavior, wilful in character; forbidden act, a transgression of established and de - nite rule of action or code of conduct but not mere error of judgment, care- lessness or negligence in performance of the duty; the act complained of bears forbidden quality or charac- ter. Its ambit has to be construed with reference to the subject matter and the context wherein the term oc-
413
curs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious e ect in the maintenance of law and order."
23.In the context in which then term 'misconduct' has been used in Rule 14, it is to be given a wider meaning and any wrongful act or any act of delinquency which may or may not involve moral turpitude, would be 'misconduct', and certainly so, if it is subversive of army discipline or high traditions of army and/or if it renders the person unworthy of be- ing retained in service. The language of sub-rule(2) of Rule 14 employing the expression 'the reports on an of-cer's misconduct' uses 'reports' in plural and misconduct in singular. Here plural would include singular and singular would include plural. A single report on an o cer's miscon- duct may invite an action under Sec- tion 19 read with Rule 14 and there may be cases where there may be more reports than one on a singu- lar misconduct or more misconducts than one in which case it will be the cumulative e ect of such reports on misconduct or misconducts, which may lead to the formation of requi- site satisfaction and opinion within the meaning of sub-rule (2) of Rule 14.
24.The learned counsel for the respondents submitted that a court martial convened under the Act is a high powered special tribunal vested with very wide jurisdiction. It can-
not appropriately be called either a criminal court merely or a service tri- bunal simply. It is a combination of the two and much more than that. A perusal of the provisions of Sec- tion 71 clearly indicates that court martial is empowered to in ict such punishments which are otherwise in-icted by a competent criminal court while there are punishments such as those provided by clauses (d) to (l) thereof which belong to the realm of service jurisprudence and can ordi- narily be in icted y way of penalty for a misconduct which a person in service may be found to have com- mitted. The learned counsel went on to submit that the scheme of the Act and the Rules thus shows that a person subject to the Act hav- ing committed a misconduct amount- ing to an o ence within the mean- ing of Chapter VI should ordinarily be subjected to trial by a court mar- tial. And if that has been done, then the power to act under Section 19 is taken away. So also if the period of limitation for trial by court martial is over, then also by necessary implica- tion resort cannot be had to Section 19. We nd it the di cult to agree with the submission so made.
25. In Union of India v. S.K. Rao, , the gross
misconduct alleged against the delinquent o cer was of having ac- tively abetted in the attempt of brother o cer's daughter eloping with a sepoy. An inquiry into the grave misconduct was made by Court of Inquiry. The Chief of the Army Sta considered the conduct of the o cer unbecoming of an o cer. He
| 414 | Union Of India v. Harjeet Singh Sandhu 2001 |
also formed an opinion that trial of the o cer by a general court mar- tial was inexpedient and, therefore, he ordered an administrative action to be taken under Rule 14 by re- moving the o cer service. The or- der of removal was put in issue on the ground that the Army Act con- tained speci c provisions, viz. Sec- tion 45, for punishment for unbecom- ing conduct and as Section 19 itself suggests that power being \subject to the provisions of this Act", Sec- tion 19 would be subject to Section 45 and therefore the Central Gov- ernment would have no power to re- move a person from, the service in derogation of the provision of Section 45. The plea was repelled by this court holding that the power under Section 19 is an independent power. Though Section 45 provides that on conviction by court martial an o cer is liable to be cashiered or to su er such less punishment as mentioned as the Act, for removal from service un- der Section 19 read with Rule 14, a court martial is not necessary. The court speci cally held that the power under Section 19 is an independent power and \the two Section 19 and 45 of the Act, therefore, mutually ex- clusive."
26. It is true that some of the punishments provided by Sec- tion 71 as awardable by court mar- tial are not necessarily punishments in the sense of the term as ordi- narily known to criminal jurispru- dence, but are penalties as known to service jurisprudence. The fact re- mains that such penalties have been treated as punishments awardable by
court martial under Section 71 of the Army Act, 1950. The power con- ferred by Section 19 on the Cen- tral Government and the power con- ferred on court martial by Section 71 are clearly distinguishable from each other. They are not alternatives to each other in the sense that the ex- ercise of one necessarily excludes the exercise of the order. The distinction may be set out in a tabular form:-
Sr. No. Name of the candidate Party a liation No. of valid votes polled
1.Rao Om Parkash, Engineer BSP 5819
2.Sh. Jagat Singh JD[U] 113
3.Sh. Narender Singh INC
31755
4.Sh. J.D. Yadav HVP 500
5.Smt. Sanotsh D/o Sh. Bag- wan Singh INLD 31421
6.Sh. Yogesh Kumar RJD 205
7.Sh. Laxmi Narain SP 785
8.Sh. Vinod Kumar SJP [R] 212
9.Sh. Om Parkash Yadav IND
18
10.Sh. Om Parkash IND 178
11.Sh. Naresh Yadav IND 19855
12.Comrade Balbir Singh IND
476
13.Sh. Ram Singh IND 111
14.Sh. Rama Nand Sharma IND
194
15.Smt. Sanotsh W/o Yudhvir
IND 40
16.Sh. Satbir IND 92
17.Sh. Surender IND 18
415
27. It is relevant to note that when an o ence is triable by a crimi- nal court and also by a court martial, each having jurisdiction in respect of that o ence, a discretion is con- ferred by Section 125 on the o cer commanding to decide before which court the proceedings shall be insti- tuted. The Parliament has obviously made no such provision in the Act for the exercise of a choice between pro- ceeding under Section 19 or conven- ing of a court martial. The element of such option, coupled with the fac- tors which would be determinative of the exercise of option, is provided by Rule 14(2). When an o cer, subject to the Army Act, is alleged to have committed a misconduct, in view of Section 125 and Section 19 read with Rule 14, the following situ- ation emerges. If the alleged miscon- duct amounts to an o ence includ- ing a civil o ence, Section 125, vests discretion in the o cer commanding the Army, Army Corpse Division or independent Brigade in which the ac- cused person is serving or such other o cer as may be prescribed, to de- cide before which court the proceed- ings shall be instituted, i.e. before a court martial or a criminal court. If the decision is to have the delin- quent o cer tried by a criminal court and if the is acquitted by the crim- inal court, then that is the end of the matter. The pronouncement of judicial verdict would thereafter ex- clude any independent disciplinary action being taken against the delin- quent o cer on the same facts which constituted the misconduct amount- ing to an o ence for which he was charged before the criminal court.
In the event of his being convicted if some further disciplinary action is still proposed to be taken, then it is the conduct of the o cer leading to his conviction (as found by the crim- inal court) which is capable of be- ing taken into consideration by the Central Government or the COAS under sub-rules (3),(4) and (5) of Rule 14 for the purpose of such ac- tion. The facts forming the conduct of the o cer leading to his conviction shall alone form basis of the forma- tion of opinion as to whether his fur- ther retention in service is undesir- able whereupon he may be dismissed, removed or compulsorily retired from the service in the manner prescribed by the said sub-rules. But, on the other hand, if the initial decision was to have the delinquent o ce tried not by a criminal court but a court mar- tial, then under sub-rule (2) of Rule 14 it is for the Central Government or the COAS to arrive at a satisfaction whether the trial of the o cer by a court martial is expedient and prac- ticable whereupon the court martial shall be convened. The Central Gov- ernment or the COAS may arrive at a satisfaction that it is inexpedient or impracticable to have the o cer tried by court martial then the court martial may not be convened and ad- ditionally, subject to formation of the opinion as to undesirability of the of-cer for further retention in the ser- vice, the power under Section 19 read with Rule 14 may be exercised. Such a decision to act under Section 19 read with Rule 14 may be taken ei- ther before convening the court mar- tial or even after it has been con- vened and commenced subject to sat-
| 416 | Union Of India v. Harjeet Singh Sandhu 2001 |
isfaction as to the trial by a court martial becoming inexpedient or im- practicable at which stage the Cen- tral Government or the COAS may revert back to Section 19 read with Rule 14. It is not that a decision as to inexpediency or impracticabil- ity or trial by court martial can be taken only once and that too at the initial stage only and once taken can- not be changed in spite of a change in fact situation and prevailing circum- stances.
28. Section 127 was to be found in Army as originally enacted which provided that a person convicted or acquitted by a court martial could be tried again by a criminal court for the same o ence or on the same facts subject to previous sanction of the Central Government. The provision was deleted by Act No.37 of 1992. This deletion is suggestive of the leg- islative intent to confer nality to thending and sentence of court mar- tial subject to their being con rmed and not annulled. Power to con rmnding and sentence of court martial and the power to annual the proceed- ing on the ground of being illegal or unjust, both provisions read together indicate that the nding and sen- tence of court martial if legal and just have to be ordinarily con rmed but they may be annulled on the ground of illegality or unjustness. An obliga- tion is cast on the con rming author- ity to examine the legally and just- ness of the proceedings before con-rming them. Questions of correct- ness, legality and propriety of the or- der passed by any court martial and the regularity of any proceedings to
which the order of court martial re- lates can be raised by way of petition under Section 164. Once the nding and the sentence, if any have been con rmed, the court martial being a special tribunal dispensing military justice, it would not be permissible to exercise additionally the power con- ferred by Section 19 read with Rule 14 and to in ict a penalty thereun- der if the court has not chosen to in-ict the same by way of punishment under Section 71. To permit such a course would be violative of the prin- ciple of double jeopardy and would also be subversive of the e cacy of the court martial proceedings, nd- ing and sentence. So long as nal verdict of guilty or not guilty, pro- nounced by court material and con-rmed by competent authority so as to be e ective is not available, the power to proceed under Section 19 read with Rule 14(2) exists and re- mains available to be exercised.
29. The learned counsel for the respondents submitted the term `im- practicable' has been used in Rule 14 in contradistinction with `impossible' or `impermissible' and therefore if a trial by court martial though practi- cable but has been rendered imper- missible because of a bar created by the rule of limitation or rendered im- possible because of a fact situation then resort cannot be had to Sec- tion 19 read with Sub-rule (2) of Rule 14 by treating the impossibility or impermissibility as impracticability. The learned counsel for the respon- dents went on to submit that even Dharam Pal Kukrety's case required reconsideration as in their submis-
417
sion it does not lay down the correct law. It was urged that to the extent Dharam Pal Kukrety's case treats `impermissibility' as impracticability it is mistaken view . On the other hand, the learned ASG submitted Dharam Pal Kukrety's case has cor- rectly laid down the law and mistake has been committed by this court in deciding Radha Krishan's case by over looking Dharam Pal Kukrety's case and therefore Radha Krishan's case must be held to have been de- cided per incuriam.
30. Let us rst examine what is the meaning of term `impracticable' in sub-rule(2) of Rule 14?
In Major Radha Krishan's case this court has held,
\...When the trial itself was legally impossible and impermissi- ble the question of its being im- practicable, in our view cannot or does not arise. `Impracticability' is a concept di erent from `impos- sibility' for while the latter is ab- solute, the former introduces at all events some degree of reason and in- volves some regard for practice. Ac- cording to Webster's Third New In- ternational Dictionary `impractica- ble' means not practicable; incapable of being performed or accomplished by the means employed or at com- mand. `Impracticable' presupposes that the action is `possible' but ow- ing to certain practical di culties or other reasons it is incapable of being performed. The same principle will equally apply to satisfy the test of `inexpedient' as it means not expedi- ent; disadvantageous in the circum- stances, inadvisable, impolitic. It
must therefore be held that so long as an o er can be legally tried by a court martial the authorities con- cerned may, on the ground that such a trial is not impracticable or inex- pedient, invoke Rule 14(2). In other words, once the period of limitation of such a trial is over the authori- ties cannot take action under Rule 14(2)."
31. The above passage shows that the learned Judges went by the dictionary meaning of the term `im- practicable', placed the term by plac- ing it juxta position with `impossibil- ity' and assigned it a narrow mean- ing. With respect to the learned judges deciding Major Radha Kris- han's case, we nd ourselves not per- suaded to assign such a narrow mean- ing to the term. `Impracticable' is not de ned either in the Act or in the Rules. In such a situation, to quote from \Principles of Statutory Interpretation" (Chief Justice G.P. Singh, Seventh Edition, 1999, pp. 258-259), \When a word is not de-ned in the Act itself, it is permis- sible to refer to dictionaries to nd out the general sense in which that word is understood in common par- lance. However, in selecting one out of the various meanings of a word, re- gard must always be had to the con- text as it is a fundamental rule that 'the meanings of words and expres- sions used in an Act must take their colour from the context in which they appear'. Therefore, `when the con- text makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings
| 418 | Union Of India v. Harjeet Singh Sandhu 2001 |
a word is capable of, according to lexicographers'. As stated by KR- ISHNA IYER, J. `Dictionaries are not dictators of statutory construc- tion where the benignant mood of a law, and more emphatically, the de nition clause furnish a di erent denotation'. In the words of JEE- VAN REDDY,J.: `A statute cannot always be construed with the dictio- nary in one hand and the statute in the other. Regard must also be had to the scheme, context and to the legislative history.' JUDGE LEARNED HAND cautioned `not to make a fortress out of the dictionary' but to more attention to `the sympa- thetic and imaginative discovery' of the purpose or object of the statute as a guide to its meaning."
32. In Words and Phrases (Per- manent Edition, Vol.20, page 480- 461) it is stated that the term `im- possible' may sometimes be synony- mous with `impracticable'; `impracti- cable' means `not practicable', inca- pable of being performed or accom- plished by the means employed or at command; `impracticable' is de ned as incapable of being e ected from lack of adequate means, impossible of performance, not feasible; `impracti- cable' means impossible or unreason- ably di cult of performance, and is a much stronger term than `expedient'. In Law Lexicon (P.Ramanatha Iyer, Second Edition, page 889) one of the meanings assigned to impracticable is `not possible or not feasible': at any rate means something very much more than `not reasonably practica- ble'. In The New Oxford Dictionary of English (1998, at p.918), imprac-
ticable (of a course of action) is de-ned to mean `impossible in practise to or carry our'. The same dictionary states the usage of the term in these words - `Although there is consider- able overlap, impracticable and im- practical are not used in exactly the same way. Impracticable means `im- possible to carry out' and is normally used of a speci c procedure or course of action, ...Impractical, on the other hand, tends to be used in more gen- eral senses, often to mean simply `un- realistic' or `not sensible'.
33. We may with advantage refer to certain observations made by the Constitution Bench (major- ity view) in Union of India & Anr.v. Tulsi Ram Patel, . Article 311(2), proviso (b) contemplates a govern- ment servant being dismissed or re- moved or reduced in rank, dispens- ing with a enquiry, if it is not `rea- sonably practicable' to hold such en- quiry. The Constitution Bench dealt with meaning of the expression `rea- sonably practicable' and the scope of the provision vide para 128 to 138 of its judgment. The Consti- tution Bench pertinently noted that the words used are `not reasonably practicable' and not `not practicable' nor `impracticable' (as is the term used in sub-rule(2) of Rule 14 of the Army Rules). Thus, the decision in Tulsi Ram Patel's case may not ipso facto throw light on the issue before us but some of the observation made by the Constitution Bench can use- fully be referred to. A few illustrative cases mentioned by the Constitution Bench, wherein it may be `not rea- sonably practicable' to hold an en-
419
quiry, are:-
(i)a situation which is of the cre- ation of the concerned government servant himself or of himself acting in concert with others or his associates;
(ii)though, the government ser- vant himself is not a party to bring- ing about of a situation yet the ex- igencies of a situation may require that prompt action should be taken and not taking prompt action may result in the trouble spreading and the situation worsening and at time becoming uncontrollable and neces- sary concomitance of such an action resulting from a situation which is not of the creation of the authorities.
34. The Constitution Bench has further held that disciplinary enquiry is not expected to be dispensed with lightly or arbitrarily or out of ulterior motive or merely to avoid the holding of an enquiry or because the depart- ment's case against the government servant is weak and must fail. It is not necessary that a situation which the holding of an enquiry not reason- ably practicable should exist before the disciplinary enquiry is initiated against the government servant; such a situation can also come into exis- tence subsequently during the course of an enquiry. Reasonable practica- bility of holding an enquiry is a mat- ter of assessment to be made by the disciplinary authority. The satisfac- tion of the authority is not immune from judicial review on well settled parameters of judicial review of ad- ministrative decisions. However,if on the satisfaction reached by the au- thority two views are possible, the court will decline to interfere.
35.As the term used in sub- rule (2) of Rule 14 is `impractica- ble' and not `not reasonably practi- cable', there is more an element of subjectivity sought to be introduced by this provision in the process of ar- riving at the satisfaction, obviously because the rule is dealing with the satisfaction arrived at by the Central Government or the Chief of the Army Sta , in the matter of disciplinary ac- tion on account of misconduct com- mitted by an o cer of Army which decision would have been arrived at by taking into consideration the then prevailing fact situation warranting such decision after considering the re- ports on o cer's misconduct.
36.The learned Additional So- licitor General cited a few examples wherein the trial by court martial may be rendered `impracticable', to wit:-
i)a misconduct amounting to an o ence having been rendered not tri- able by court martial by expiration of the period of limitation prescribed by Section 122;
ii)a court martial having been dissolved after its commencement on account of the number of o cers re- quired by the Act to validly consti- tute a court martial being reduce be- low the minimum or any other exi- gency contemplated by Section 117 occurring and the court martial can- not be convened to commence afresh on account of bar of limitation under Section 122 having come into play;
iii)The Central Government, the Chief of the Army Sta or any pre- scribed o cer having annulled the
| 420 | Union Of India v. Harjeet Singh Sandhu 2001 |
proceedings of any court martial on the ground that they are illegal or unjust within the meaning of Section 165 of the Act and by that time the bar of limitation under Section 122 having come into play;
iv)Any nding or sentence of a court martial requiring con rmation having been ordered to be revised by order of the con rming authority but in spite of such revision having not been con rmed once again and s subsequent revision of nding or sen- tence being not contemplated by the provisions of the Act; further a re- vised (SIC) having been provided by Section 160;
v)A person subject to the pro- visions of Army Act having secured
astay order from a court of law on commencement of court martial and by the time the stay order is vacated by the court of law the bar of limita- tion provided by Section 122 coming into play.
37.On the meaning which we are placing on the term `impracticable' as occurring in Rule 14(2) we proceed to provide resolutions to the several problems posed by the illustrations given by the learned ASG. Accord- ing to us:
38.In illustration (i) the expiry of the period of limitation prescribed by Section 122 renders the trial by court martial `impracticable' on the wider meaning of the term. There is yet another reason to take this view. Section 122 prescribes a period of limitation for the commencement of court martial proceedings but the Parliament has chosen not to provide
any bar of limitation on exercise of power conferred by Section 19. We cannot, by an interpretative process, read the bar of limitation provided by Section 122 into Section 19 of Act in spite of a clear and deliberate legisla- tive abstention. However, we have to caution that in such a case, though power under Section 19 read with Rule 14 may be exercised but the question may still be - who has been responsible for the delay? The pe- riod prescribed by Section 122 may itself be taken laying down a guide- line for determining the culpability of delay. In spite of power under Sec- tion 19 read Rule 14 having become available to be exercise on account of a trial by a court martial having been rendered impracticable on account of bar of limitation created by Section 122, other considerations would as- sume relevance, such as-whether the facts or set of facts constituting mis- conduct being three years or more old have ceased to be relevant for ex- ercising the power under Section 19 read with Rule 14? If there was inac- tion on the part of the authorities re- sulting into delay and attracting bar of limitation under Section 122 can it be said that the authorities are tak- ing advantage of their own inaction or default? If the answer be yes, such belated decision to invoke Section 19 may stand vitiated, not for any lack of jurisdiction but for colourable or mala de exercise of power.
39. In illustration (ii), the court martial has stood dissolved for for- tuitous circumstance for which no one is to be blamed - neither COAS nor the delinquent o cer. The
421
delinquent o cer, howsoever grave his misconduct amounting to o ence may have been,would go scot free. It would be fastidious to hold that bar of limitation under Section 122 would also exclude the exercise of power un- der Section 19 read with Rule 14.
40. In illustrations (iii) and (iv) also, in our opinion, the exercise of power under Section 19 read with Rule 14 cannot be excluded. Thending and sentence of the court martial are ine ective unless con-rmed by the con rming authority. The Act not contemplate that thending and sentence of a court mar- tial must necessarily be con rmed merely because they have been re- turned for the second time. Sec- tion 165 vests power in the Central Government, the COAS and any pre- scribed o cer, as the case be, as the case may be, to annul the pro- ceedings of any court martial if the same are found to be illegal or unjust. The delinquent o cer cannot be al- lowed to escape the consequences of his misconduct solely because court martial proceedings have been ad- judged illegal or unjust for the sec- ond time. The power under Section 19 read with Rule 14 shall be avail- able to be exercised in such a case though in an individual case the ex- ercise of power may be vitiated as an abuse of power. The option to have a delinquent o cer being tried by court martial having been so exercise and nding as to guilt and sentence having been returned for or against the delinquent o cer by the court martial for the second time, on just and legal trial, ordinarily such nd-
ing and sentence should be accept- able so as to be con rmed. Power to annul the proceedings cannot be ex- ercised repeatedly on the sole ground that the nding or the sentence does not meet the expectation of the con-rming authority. Refusal to con rm is a power to be exercised, like all other powers to take administrative decision, reasonably and fairly and not by whim,caprice or obstinacy. Exercising power under Section 19 read with Rule 14 consequent upon court martial proceedings being an- nulled for the second time because of having been found to be illegal or unjust, the exercise would not suf- fer from lake of jurisdiction though it may be vitiated on the ground of `inexpediency' within the mean- ing of Rule 14(2) or on the ground of abuse of power or colourable exer- cise of power in a given case.
41. In illustration (v), the ball will be in the court of the delinquent o cer. Once stay order has been va- cated, in spite of the expiry of limita- tion for commencement of court mar- tial proceedings under Section 122 of the Act, the option to have the delin- quent tried by a court martial or to invoke Section 19 read with Rule 14, depending on the facts and circum- stances of an individual case, would still be available to the Central Gov- ernment or the COAS. In Union of India & Ors. v. Major General Madan Lal Yadav (Retd.) , , this court has invoked applicability of the maxim nulls commode capers potest de injury sua propria - no man can take advantage of his own wrong - to hold that the delinquent o cer hav-
| 422 | Union Of India v. Harjeet Singh Sandhu 2001 |
ing himself created a situation with- holding commencement of trial, he would be estopped from pleading the bar of limitation and the trial com- menced on vacating of the judicial or- der of restraint of court martial shall be a valid trial. The learned Addi- tional Solicitor General pointed out that although in the category of case illustrated by (v) above in case of an o ender who ceases to be subject to the Act, the Parliament has by Act No.37 of 1992 amended sub-section
(2) of section 123 so as to exclude the time during which the institution of the proceedings in respect of the of- fence has been stayed by injunction or order from, computing the period of limitation but a similar provision is not made is not made in respect of the period of limitation for trial by court martial of any person subject ot the Act, as the respondents herein are. This deliberate omission by the Parliament to provide for exclusion from calculating period of limitation in Section 122 on the lines of the pro- vision for execution in Section 123 lings strength to his submission that in as much as person subject to the Act would be amenable to Section 19 of the act even after the expiry of the period of limitation for trial, provision for extension in period of limitation under Section 122 was un- necessary. If the expiry of the pe- riod of limitation for commencement of court martial was to be given e ect to, the consequence to follow would be that the person would not be li- able to be in icted with a wide va- riety of punishments awardable by court martial under Section 71; nev- ertheless he would be liable to be dis-
missed or removed from service un- der Section 19, though that action shall be capable of being taken sub- ject to formation of opinion as to the undesirability of person for further retention in service. We nd merit in the submission of the learned ASG.
42. Having thus explained the law and clari ed the same by pro- viding resolutions to the serveral il- lustrative problems posed by the learned ASG for the consideration of this Court (which are illustrative and not exhaustive), we are of the opin- ion that the expiry of period of lim- itation under Section 122 of the Act does not ipso facto take away the ex- ercise of power under Section 19 read with Rule 14. The power is avail- able to be exercised though in the facts and circumstances of an indi- vidual case, it may be inexpedient to exercise such power or the exercise of such power may stand vitiated if it is shown to have been exercised in a manner which may be called colourable exercise of power or an abuse of power, what at times is also termed in administrative law as fraud on power. A misconduct commit- ted a number of years before, which was not promptly and within the prescribed period of limitation sub- jected to trial by court martial, and also by reference to which the power under Section 19 was not promptly exercised may cease to be relevant by long lapse of time. A subsequent mis- conduct though less serious may ag- gravate the gravity of an earlier mis- conduct and provide need for exer- cise of power under Section 19. That would all depend on the facts and cir-
423
cumstances of an individual case. No hard and fast rule can be laid down in that behalf. A broad proposition that power under Section 19 read with Rule 14 cannot be exercised solely on the ground of court martial proceedings having not commenced within the period of limitation pre- scribed by Section 122 of the Act, cannot be accepted. In the scheme of the Act and the purpose sought to be achieved by Section 19 read Rule 14, there is no reason to place a narrow construction on the term `impracti- cable' and therefore on availability or happening of such events as render trial by court martial impermissible or legally impossible or not practica- ble, the situation would be covered by the expression-the trial by court martial having become `impractica- ble'.
43. Exercise of power under Sec- tion 19 read with Rule 14 is open to judicial review on well settled pa- rameters of administrative law gov- erning judicial review of administra- tive action such as when the exercise of power is shown to have been viti- ated by mala des or is found to be based wholly on extraneous and/or irrelevant grounds or is found to be a clear case of extraneous and/or abuse to power or what is sometimes called fraud on power,i.e.where the power is exercised for achieving an oblique end. The truth or correctness or the adequacy of the material available before the authority exercising the power cannot be revalued or weighed by the court while exercising power of judicial review.Even if some of the material, on which the action is taken
is found to be irrelevant, the court would still not interfere so long as there is some relevant material avail- able on which the action can be sus- tained. The court would presume the validity of the exercise of power but shall into hesitate to interfere if the invalidity or unconstitutionally is clearly demonstrated. If two views are possible, the court shall not in- terfere by substituting its own satis- faction or opinion for the satisfaction or opinion of the authority exercising the power.
44.We are also of the opin- ion that Major Radha Krishna's case lays down propositions too brand to be acceptable to the extent in holds that once the period of limitation for trial by court martial is over, the authorities cannot take action under Rule 14(2). We also do not agree with the proposition that for the pur- pose of Rule 14(2), impracticability is a concept di erent from impossibil- ity (or impermissibility, for that mat- ter). The view of the court in that case should be treated as con ned to the fact and circumstances of that case alone. We agree with submis- sion of the learned Additional Solici- tor General that the case of Dharam Pal Kukrety being a Three-Judges Bench decision of this court, should have been placed before the Two- Judges Bench which heard and de- cided Major Radha Krishan's case.
45.Reverting back to the two cases under appeal before us, we are of the opinion that High Court was not right in allowing the two writ pe- titions led by Harjeet Singh Sandhu and Harminder Kumar, respectively,
| 424 | Union Of India v. Harjeet Singh Sandhu 2001 |
by placing reliance on the decision of this court in Major Radha Kris- han's case and holding that the exer- cise of power under Section 19 read with Rule 14 by the COAS was viti- ated solely on account of the bar of limitation created by Section 122 of the Act. Both the judgments of the High Court, which are under appeal, are accordingly set aside and the writ petitions led by the two respondents are directed to be dismissed. How- ever, consistently with the observa- tion made by this court vide para 18 of Major Dharam Pal Kukrety's case, we would like to impress upon the Chief of the Army Sta and the Central Government,as the case may be, that the incidents leading to ac-
tion against the two respondents are referable to late 17s. By this time a period of more than 20 years has elapsed in between. Before any de- cision to initiate disciplinary action against any of the two respondents is taken, the conduct and behavior of the respondents is taken, the conduct and behavior of the respondents con- cerned during the intervening period shall also be taken into consideration while deciding upon the desirability of proceeding further in the matter at this belated stage, and keeping in view, of course, the requirement of military discipline and the high tra- ditions of the Indian Army. No order as to the costs.
Chapter 36
Union Of India v. R.K. Sharma 2001
Union Of India And Ors. v. R.K. Sharma on 9 October, 2001 Equiv- alent citations: AIR 2001 SC 3053, 2001 (91) FLR 1006, JT 2001 (9) SC 76 Author: S Variva Bench: K Thomas, S Variave
JUDGMENT
S.N. Variva, J.
1.Leave granted.
2.Heard parties.
3.These Appeals are against an Order dated 16th March, 2001 by which two Appeals, one led by the Appellant (herein) and the other led by the Respondent (herein), were dis- missed.
4.Brie y stated the facts are as follows:
5.The Respondent was, at the relevant time, serving as Deputy Commandant of Assam Ri es. On 28th November, 1986 he was served with a charge sheet. Thereafter a General Court Martial was held and the Respondent was found guilty of four of the charges. The penalty of
dismissal from service was imposed on the Respondent. The Central Government dismissed the Appealled by the Respondent then led a Writ Petition in the High Court. By an Order dated 14th October, 1999, a Single Judge of the High Court Mar- tial had been properly conducted and that there was no breach of principles of natural justice. It was further held that the four charges had been estab- lished in the General Court Martial and that the Respondent was liable for punishment. It was however held that having regard to the nature and degree of the o ences established the extreme and severe punishment of dismissal from service was violative of the provisions of Section 72 of the Army Act, 1950. The order of dis- missal was set aside and the matter was sent back to the General Court Martial for awarding any lesser pun- ishment than dismissal from service. It was directed that the Respondent would not receive any salary and al- lowances for the period when he was out of service.
| 426 | Union Of India v. R.K. Sharma 2001 |
6.Both the Appellant and the Respondent led Appeals. The Ap- pellate Court refused to grant any stay to the Appellants herein. The Appellants, therefore, approached this Court. This Court by an Or- der dated 7th August, 2000 granted an interim stay. This was then con-rmed by an Order dated 16th Octo- ber, 2000. By the Order dated 16th October, 2000 the High Court was requested to dispose of the Appeals expeditiously.
7.The Division Bench has, in the impugned Order, relied upon the au- thority of this Court in the case of Bhagat Ram v. State of H.P. , for proposition that the penalty must be
commensurate with the gravity of mis-conduct and that any penalty disproportionate to the gravity of mis-conduct would be violative of Ar- ticle 14 of the Constitution. To be noted that this case was not under the Army Act, but in respect of a civil servant.
8. The Division Bench also relied upon the following observations in the case of Ranjit Thakur v. Union of India :
\Judicial review generally speak- ing, is not directed against a decision, but is directed against the \decision making process". The question of choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sen- tence has to suit the o ence and the o ender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the o ence as to shock the conscience and amount in
itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the ex- clusive province of the Court Mar- tial, if the decision of the Court even as to sentence is an outrageous de - ance of logic, then the sentence would not be immune from correction. Ir- rationality and perversity are recog- nized grounds of judicial review."
9.Based on the above authorities the Division Bench has held that the sentence awarded was too harsh con- sidering the nature of the allegation and the charge established. The Di- vision Bench has also directed that if the original General Court Mar- tial was not available, as two of its members have retired, then another General Court Martial could be con- stituted with available members for purpose of imposing a lesser punish- ment. Being aggrieved by this Or- der the Appellants have led this Ap- peal.
10.In order to consider the cor- rectness of the impugned Order it is necessary to see the charges which have been held proved. The four charges read as follows:
\First Charge AN ACT PREJU-
DICIAL TO
Army Act GOOD ORDER AND
MILITARY
Section 63 DISCIPLINE
In that he,
at eld, on 31 Oct 84 while being the O cer Commanding 'A' Coy, 11 Assam Ri es on receipt of signal No. O 2140 dated 31 Oct 84 from Tac
427
HQ 11 Assam Ri es directing Coy Cdrs to visit fwd posts immediately to check alertness and report all OK did not himself visit the fwd post but improperly detailed JC-111310 Sub GS Panthi, the Senior JCO of the Coy for the task.
Second Charge BEING AN OF-
FICER
Army Act BEHAVING IN A
MANNER
Section 45 UNBECOMING HIS
POSITION
AND EXPECTED OF HIM.
In that he,
at eld, between the period 14 Oct 84 to 30 Nov 84 drew ration for personal consumption of Rs. 930.37 (Rupees Nine hundred thirty and paise thirty seven) only from the Quartermaster 'A' Coy but did not pay for the same.
Third Charge IN A TOUR DI-
ARY
Army Act MADE BY HIM
KNOWINGLY
Section 57(a) MAKING A
FALSE
STATEMENT
In that he,
At eld, on 17 Dec 84 while be- ing the O cer Commanding 'A' Coy in his Tour Diary stated that he left Man going on 20 Oct 84 for Tatadege well knowing the said statement to be false. Fourth Charge IN A TOUR DIARY
Army Act MADE BY HIM
KNOWINGLY
Section 57(a) MAKING A
FALSE
STATEMENT
In that he,
at eld, on 07.01.85, while being the October Commanding 'A' Coy in Tour Diary stated that he left Manigong on 26 No 84 for Sheet well knowing the said statement to be false."
11.At this state the Sections of the Army Act, 1950, on which these charges are framed, may be looked at. The rst charge is based on Sec- tion 63. Section 63 provides for vio- lation of good order and discipline. Under Section 63 if such a charge is found proved, then on conviction by Court Martial, the person found guilty could be sentenced to su er imprisonment for a term which may extend to seven years or to some other lesser punishment. The second charge is under Section 45. It is in respect of unbecoming conduct. The punishment is dismissal or such lesser punishment as is mentioned in the Act. The third and fourth charges are under Section 57. They relate to falsifying o cial documents and making false declarations. On con- viction the punishment could be for
aterm which may extend to 14 years or any other lesser punishment.
12.Section 72 of the Army Act, 1950, reads as follows:
\72. Alternative punishments awardable by court martial.- Subject to the provisions of this Act, a court martial may on convicting a person subject to this Act of any of the of- fences speci ed in Secs. 34 to 68 in- clusive, award either the particular
| 428 | Union Of India v. R.K. Sharma 2001 |
punishment with which the o ence is state in the said sections to be pun- ishable or in lieu thereof, any one of the punishments lower in the scale set out in Sec. 71, regard being had to the nature and degree of the of- fence."
13.Under Section 71 various punishments are prescribed accord- ing to scale. One of them, at item
(e)is dismissal from service. Above this at items (a) to (d) are: (a) death;
(b)transportation for life or for any period not less than seven years; (c) imprisonment, either rigorous or sim- ple, for any period not exceeding fourteen years; (d) cashiering, in the case of o cers. Various other pun- ishments with which we are not con- cerned are prescribed after item (e). Thus it is to be seen that dismissal from service is a lesser punishment that imprisonment for either 7 years or 14 years as contemplated under Sections 57 and 63 of the Army Act, 1950.
14.The law on the subject is aptly set out in the case of Union of India v. Major A. Hussain . This was a
case where a Major had been court martialled and dismissed from service. The High Court quashed the Court Martial and the sentence on the ground that the delinquent had been denied a reasonable opportu- nity to defend himself. This Court, after considering various Army Or- ders, Rules and Provisions of the Army Act, concluded that the Court Martial had been properly held. It was then held as follows:
\23. Though court martial pro- ceedings are subject to judicial re- view by the High Court under Arti- cle 226 of the Constitution the court martial is not subject to the super- intendence of the High Court under Article 227 of the Constitution. If a court martial has been properly convened and there is no challenge to its composition and the proceed- ings are in accordance with the pro- cedure prescribed, the High Court or for the matter any court must stay its hands. Proceedings of a court mar- tial are not to be compared with the proceedings in a criminal court un- der the Code of Criminal Procedure where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court martial remains to a signi cant degree, a spe- cialised part of overall mechanism by which the military discipline is pre- served. It is for the special need for the armed forces that a person sub- ject to Army Act is tried by court martial for an act which is an of- fence under the Act. Court Mar- tial discharges judicial function and to a great extent is a court where provisions of Evidence Act are ap- plicable. A court martial has also the same responsibility as any court to protect the rights of the accused charges before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court martial in the Army Act, the Army Rules, Defence Service Regu- lations and other Administrative In- structions of the Army, it is mani- festly clear that the procedure pre- scribed is perhaps equally fair if nor
429
more than a criminal trial provides to the accused. When there is su cient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not in- validate the court martial unless it is shown that the accused has been prejudiced or a mandatory provision has been violated. One may use- fully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when ev- idence is su cient, court martial has jurisdiction over the subject-matter and has followed the prescribed pro- cedure and is within its power to award punishment."
15.As stated above, both the single Judge as well as the Divi- sion Bench have held that the four charges set out have been proved and that he Respondent was guilty of those charges. Having so held it was not open to the Court to have inter- fered in the sentence. The awarding of sentence is within the powers of the Court Martial. These are not matters in which Court should inter- fere.
16.In our view, the observation in Ranjit Thakur's case (supra) ex- tracted above, have been misunder- stood. In that case the facts were such that they disclosed a bias on the part of the Commanding O - cer. In that case the Appellant Ran- jit Thakur had fallen to of favour of the Commanding O cer because he had complained against the Com-
manding O cer. For making such a complaint the Commanding O cer had sentenced him to 28 days rig- orous imprisonment. While he was serving the sentence he was served with another charge-sheet which read as follows:
\Accused 1429055-M Signalman Ranjit Thakur of 4 Corps Operating Signal Regiment is charged with -
Army Act Disobeying lawful command given by his Section 41(2) superior o cer
In that he
At 15.30 hrs on May 29, 1985 when ordered by JC 106251-P Sub Ram Singh, the orderly O cer of the same Regiment to eat his food, did not so."
17. On such a ridiculous charge rigorous imprisonment of one year was imposed. he was then dismissed from service, with the added disqual- i cation of being declared un t for any future civil employment. It was on such gross facts that this Court made the observations quoted above and held that the punishment was so strikingly disproportionate that it called for interference. The above observations are not to be taken to mean that a Court can, while exer- cising powers under Article 226 or 227 and/or under Article 32, inter- fere with the punishment because it considers the punishment to be dis- proportionate. It is only in extreme cases, which on their face show per- versity or irrationality that there can be judicial review. Merely on com- passionate grounds a Court should not interfere.
| 430 | Union Of India v. R.K. Sharma 2001 |
18.We nd that the lower Court erred in coming to the conclusion that the punishment of dismissal was violative of provisions of Section 72 of the Army Act, 1950. Section
72merely provides that the Court Martial may, on convicting a person, award either the punishment which is provided for the o ence or any of the lesser punishment set out in the scale in Section 71. Section 72 does not set out that in all cases, a lesser pun- ishment must be awarded. In other words, merely because a lower pun- ishment is not granted, it would not mean that the punishment was viola- tive of Section 72. In any case, in this case, under Section 63 there could have been a punishment of imprison- ment for a term which may extend to 7 years. Under Section 57 there could have been a punishment for impris- onment for a term which may extend to 14 years. The charges under Sec- tions 57 and 63 had been held to be proved. The General Court Martial could have imposed a punishment of imprisonment. The General Court Martial has chosen to give a lower punishment of dismissal from service. The Court below should not have in- terfered on the erroneous assumption that provisions of Section 72 of the Army Act, 1950 had been violated.
19.Even otherwise, in our view, both the Courts below have erred in coming to the conclusion that the sentence awarded was too harsh con- sidering the nature and degree of the o ence established. The rst charge, as set to here in above, indicates that the Respondent, who was the Com- manding O cer of 'A' Company 11
Assam Ri es had received a signal to visit the forward post, check al- terness and report all OK. It is not denied that the signal had been re- ceived. It has been proved that the Respondent did not visit the forward post. The Respondent improperly detailed JCO of the Commanding O cer breaches orders received from the Head Quarters how can discipline be maintained in the Army.
20. Mr. J. M. Sharma submit- ted that during the period, i.e. in October 1984, there was an opera- tion, known as operation \Ran Vi- jay", in progress. He submitted that as a result of the operation the troops were already on high alert. He sub- mitted that 'A' Company had four forward posts. He submitted that just a few days before the receipt of the signal, the Respondent had al- ready visited two of the forward posts viz. Tatadege and Henakar. He sub- mitted that as the troops were al- ready on high alert and as be had just returned back from two of the for- ward post the Respondent sent the JCO to check alertness in the re- maining two forward posts. He fur- ther submitted that there was to be a visit, to the 'A' Company, of a VIP and the Respondent was there- fore required to remain in Manigong. He submitted that for that reason also the Respondent could not per- sonally visit the forward posts. It was further submitted that in that area apart from 'A' Company, there were three other Companies, namely 'B', 'C' and 'D' Companies. He sub- mitted that the Commandants of 'C' Company and 'D' Company had also
431
not visited the forward post after re- ceipt of signal. He submitted that therefore the charge was not that serious and that this was the fac- tor which was taken into considera- tion by both the Courts below. Mr. Sharma further submitted that even the other charges were not a very se- rious nature inasmuch as the second charge only related to non payment of a small sum of Rs. 930.37. He submitted that the third and fourth charges only related to making en- tries in the tour Diary maintained by the Respondent.
21. We are unable to accept the submissions of Mr. Sharma, It has to be immediately noted that the Com- pany Commandants of 'C' and 'D' Companies had stayed back after get- ting permission from the Head Quar- ters. The Respondent did not apply for any permission. The further case that the Respondent was required to stay back because a VIP was to visit the 'A' Company is also of no sub- stance. The VIP was to visit only on 5th November. By that time the JCO, who had been improperly de- puted by the Respondent, had al- ready visited the forward posts and come back. Thus the Respondent could also have visited the post and returned well in time to receive the VIP. It is also not possible to accept the case that the Respondent had al- ready visited two of the forward posts a few days earlier. It is to be seen that the third Charge is in respect of making a false entry in the tour diary to show that the Respondent had gone to the forward posts. That charge was proved. This showed
that a false entry had been made to show that the Respondent had gone to those posts when in fact he had not gone there. Not only did the Respondent not obey the command from the Headquarters but he falsi-ed records in order to make out a case that he had already gone to two of the forward posts. These are very serious a ances. These are o ences for which the General Court Martial would have been justi ed in awarding imprisonment. The General Court Martial took a lenient view by merely dismissing him from service. There was just no justi cation for interfer- ence by the High Court.
22. Mr. Sharma next submit- ted that the General Court Martial was not properly convened. When asked whether such a contention was taken up in the Writ Petition, Mr. Sharma placed reliance on the follow- ing observations in the Judgment of the Single Judge:
\The petitioner vehemently ar- gued that preliminary hearing when the summary evidence was recorded, the provisions of rules 22, 23 and 24 of the Army Rules, 1954, as well as Army Order 70/84 were not strictly followed. In this context, he pointed out that the Army Order 70/80 pre- scribed a form which was required to be lled up by the Commanding O - cer at the time of hearing of a charge against a person subjected to Army Act, 1950, but the said from was not duly lled up by the Commanding O cer."
23. We are unable to accept that the above observations show that in the Writ Petition there was a chal-
| 432 | Union Of India v. R.K. Sharma 2001 |
lenge to the constitution of the Gen- eral Court Martial. The above ob- servations are in respect of a prelim- inary hearing under rules 22, 23 and 24 of the Army Rules, 1954. This is a hearing which precedes the Court Martial. In any event the High Court has held against the Respondent on this point and no Appeal was led by him. This point not having been raised in the Writ Petition cannot
now be urged before this Court for the rst time. We therefore did not permit Mr. Sharma to argue this point.
24. Under these circumstances, we set aside the Order passed by the learned single Judge as well as the impugned Order. The Writ Petitionled by the Respondent shall stand dismissed. There will be no Order as to costs.
Chapter 37
Union Of India v. P.D. Yadav 2001
Union Of India And Anr. v. P.D. Yadav on 16 October, 2001 Equiv- alent citations: 2001 IXAD SC 30, 2001 (91) FLR 961, JT 2001 (8) SC 617 Author: S V Patil Bench: B Kir- pal, S V.Patil, P V Reddi
JUDGMENT
Shivaraj V. Patil, J.
1. In short the facts leading toling of these appeals, are as stated below.
Civil Appeal No. 7805/1997
The respondent herein joined Navy as a Sailor in April, 1965 and was commissioned in October, 1980. On account of certain alleged miscon- duct and irregularities, he was tried by General Court Martial on ve charges. He was found guilty of the charge 2, 3, 4 and 5 and consequently a penalty of dismissal from service was imposed on him on 26.2.1990. He was given a show-cause notice on 21.6.1991 under Regulation 15(2) on the Navy (Pension) Regulations, 1964 as to why his pensionary bene-
ts should not be forfeited. He sent a reply on 24.7.1991. The appellants informed him on 7.5.1992 that the ac- tion will be taken soon pursuant to the show-cause notice issued. How- ever, without waiting any further, heled a writ petition on 20.1.1993 in the High Court. After the ling of the said writ petition, an order was passed on 28.3.1994 forfeiting 50% of the pensionary bene ts. The High Court partly allowed his writ petition and remanded the case giving certain directions to the appellants by the or- der dated 4.3.1997. Feeling aggrieved by the same, the appellants are be- fore this Court in this appeal.
Civil Appeal No. 7806/1997
The respondent was commis- sioned in the Indian Army on 30.6.1963 and was due to retire on 31.3.1989. On 17.2.1988, he was tried by General Court Martial on cer- tain charges and was dismissed from service on 13.6.1988 under Section 71 of the Army At. He submit- ted papers for payment of pension
| 434 | Union Of India v. P.D. Yadav 2001 |
stating that he had qualifying ser- vice. Since pension was not given to him, he led Civil Writ Petition No. 1249/90 in the High Court on 3.3.1990. On 16.4.1991, a show-cause notice was issued under Section 16(a) of the Pension Regulations of the Army (Part-I Proposing forfeiture of pension on the ground that he was dismissed from service. He submit- ted reply to the said show-cause no- tice. However, the President of India by order dated 22.7.1992 under said Regulation 16(a) forfeited 50% of the pensionary bene ts. He led Writ Petition No. 2866/90 for amendment of the writ petition challenging the said order. The High Court by the impugned order quashed the order dated 22.7.1992 and directed the ap- pellants to reconsider his case in the light of the directions given in the judgment. Hence this appeal.
Civil Appeal No. 7807 of 1997
The respondent was commis- sioned in the Army as Engineer Graduate O cer on 11.1.1968. He was tried by General Court Martial on the allegation of splitting pur- chase orders for shelters, to bring them within the nancial limits and for making purchases at rates higher than scheduled and sanctioned rates. After trial by General Court Martial he was cashiered on 11.3.1994 and was directed to undergo rigorous im- prisonment for two months. He for- warded papers on 29.6.1994 to the authorities for grant of pension. On 22.2.1995, a show-cause notice was issued to him under Regulation 16(a) of Army Pension Regulations for for- feiture of pension. He claimed to
have sent a reply to the show cause notice but the order was passed for- feiting his pensionary bene ts stating that he had not sent any reply to the show-cause notice. The High Court quashed the impugned order forfeit- ing is pension and directed the appel- lants for re-consideration and passing fresh order. Aggrieved by the said order of the High Court dated 4th March, 1997, this appeal is led.
Civil Appeal No. 7808 of 1997
The respondent herein entered Army service and was commissioned on 12.6.1960. He was promoted to Selection Grade rank of Acting Brigadier in December, 1986. He retired from services on 31.5.1990 on attaining the age of superannu- ation. He was tried by General Court Martial between 26.5.1990 to 26.9.1990 on certain charges of mis- conduct. Charges 2, 3, 5, 9 10 were held proved. Consequently he was ordered to be (i) cashiered (ii) to su er rigorous imprisonment for six months and (iii) to forfeit all arrears of pay and allowances and other public money due to him at the time of cashiering. The rst two of the sentences were con rmed by the Chief of Army Sta on 12.2.1991 but the third one was remitted. Con- sequently, it stood set aside. After retirement on 31.5.1990, he was ini- tially paid provisional pension w.e.f. 1.6.1990. However, a show-cause no- tice was issued to him on 13.11.1992 under Regulation 16(a) of Army Reg- ulations. He sent a reply to the said notice. Since no order was passed for quite some time, he sent reminders to the authorities. A nal order was
435
passed by the President on 4.1.1994 forfeiting the entire pensionary ben- e ts. Questioning this order, he led Civil Writ Petition No. 2813/1994 in the High Court. The High Court quashed the order impugned in the writ petition and directed the appel- lants to reconsider and pass fresh or- ders in the light of certain directions given. Hence this appeal is led by the appellants aggrieved by the im- pugned judgment.
2. Mr. Mukul Rohtagi, learned Additional Solicitor General, urged that -
1.Section 71 and Regulation 16(a) are distinct and operate in dif- ferent elds. While Section 71(h) contemplates a punishment at the conclusion of the Court Martial, Reg- ulation 16(a) contemplates a stage subsequent to the awarding of pun- ishment by Court Martial and its con rmation; Regulation 16(a) deals with the pension of an o cer, who is cashiered, dismissed or removed from service.
2.Though the Army Pen- sion Regulations are non-statutory in character the pensionary bene ts are provided for and payable under them; these very Regulations provide for forfeiting pension in given situ- ations; in other words, the Regula- tions which provide for grant of pen- sion also provide for taking it away on justi able ground; further these Regulations may not have statutory force but they are not contrary to any statutory provisions under the Act or the Rules.
3.The High Court committed
an error in stating that the authori- ties did not consider in forfeiting pen- sion, partly or fully, that the services of the respondents up to the date of commission of o ences were satisfac- tory and that the Court Martial did not in ict the punishment of forfei- ture of services.
4.The orders passed by the Pres- ident of India forfeiting pension were neither arbitrary nor unreasonable; in fact they were passed after taking into consideration the nature of of- fences, the punishments awarded and all relevant factors.
5.(a) The High Court has also failed to see that the right to grant pension is not with the Court Mar- tial under Section 71; the grant of pension is within the powers of the President under Regulations, who can grant/forfeit pension to the of-cers who are cashiered, dismissed, removed or called upon to retire.
(b) In passing the orders for- feiting pension of the respondents, partly or fully, well established pro- cedure was followed in that a show cause notice was issued; on receipt of reply to the show cause notice from the respondents and after considera- tion orders were passed.
6. The High Court was also not right in saying that the services of the respondents cannot be termed as un- satisfactory because of their involve- ment in the cases of misconduct; the High Court was not right in giving directions to the appellants to recon- sider the matter after issuing a sup- plementary show cause notice.
3. He added that Army Pension
| 436 | Union Of India v. P.D. Yadav 2001 | |||||
| is inconsistent with and contrary to | ||||||
| Regulation 16(a) and Navy Pension | ||||||
| Regulation 15(2) are similar in con- | Section 71(h) and 71(k) of the Army | |||||
| tent except that the authority to pass | Act and Rules 14(5) and 15 of the | |||||
| order under Regulation 16(a) vests | Army Rules. | |||||
| with the President and whereas un- | 3. | If the Court Martial has not | ||||
| der Regulation 15(2) it vests in the | ||||||
| thought t to forfeit the pensionary | ||||||
| Central Government; the Army Pen- | bene ts then those bene ts cannot | |||||
| sion Regulations are non-statutory | be forfeited by the non-statutory reg- | |||||
| and Navy Pension Regulations are | ulations and there has been undue | |||||
| statutory; hence the same submis- | delay in passing the order forfeiting | |||||
| sions cover the cases dealt with Army | the pension in some cases. | |||||
| Pension Regulations and Navy Pen- | 4. | The orders passed forfeiting | ||||
| sion Regulations. | ||||||
| the pensionary bene ts, fully or par- | ||||||
| 4. In short and substance the | ||||||
| tially, as the case may be, are unrea- | ||||||
| arguments advanced by the learned | sonable and without proper applica- | |||||
| counsel on behalf of the respondents | tion of mind to the facts and circum- | |||||
| are:- | stances of the case. | |||||
| 1. | Pension is not | a bounty | or | 5. | Since no punishment was | |
| a charity given by the | State; it | is | ||||
| imposed forfeiting pensionary bene- | ||||||
| a deferred portion of compensation | ts under Section 71(h) or (k) by | |||||
| for services rendered; | right to | re- | the General Court Martial, it was | |||
| ceive pension is a Fundamental Right | not open to pass orders forfeiting | |||||
| and is right to property under Arti- | pension, partially or fully, exercis- | |||||
| cle 300A of the Constitution of India | ing power under Regulation 16(a); it | |||||
| which cannot be taken away except | may amount to imposing punishment | |||||
| by authority of law. | twice in respect of the same charges | |||||
| 2. Under the Army Act it is | of misconduct. | |||||
| only the Court Martial, which can | 5. It may be necessary to narrate | |||||
| order for forfeiture of service for pur- | ||||||
| in brief as to the nature of charges | ||||||
| poses of increased pay, pension or | framed against the respondents and | |||||
| any other prescribed purpose under | the punishment imposed on them to | |||||
| Section 71(h) or 71(k) of the Army | appreciate the contentions urged on | |||||
| Act; in case service of army personnel | behalf of the respondents as to the | |||||
| is terminated on the administrative | validity, reasonableness and justi ca- | |||||
| side (without holding court martial) | tion in passing the orders forfeiting | |||||
| then the statutory authority to de- | pension. | |||||
| cide forfeiture or the grant of these | 6. | Five charges were framed | ||||
| bene ts is the competent authority | ||||||
| against P.D. Yadav (respondent in | ||||||
| under Rule 14(5) and 15 of the Army | ||||||
| Rules. | Therefore, there is no ques- | CA 7805/97). He was found guilty | ||||
| tion of applying non-statutory pen- | in respect of charges 2 to 5. The said | |||||
| sionary | regulations to | the respon- | charges 2 to 5 are:- | |||
| dents; alternatively Regulation 16(a) | 2. | Did on Twenty ninth day of | ||||
437
September one thousand nine hun- dred eighty nine at about 1401 hours wilfully disobey the lawful command of Lieutenant Commander (Special Duties Communication) Man Singh Rawat (81917 Z), his superior o cer in the o ce of the O cer-in-Charge, Communication center, Delhi when ordered to go out of the said o ce and to come afterwards and thereby committed an o ence punishable un- der Section 47(a) of the Navy Act, 1957.
3.Did on the Twenty ninth day of September one thousand nine hun- dred eighty nine at about 1402 hours behave in a disorderly manner in the o ce of the O cer-in-Charge. Com- munication center, Delhi and thereby committed an o ence punishable un- der Section 48(c) of the Navy Act, 1957.
4.Did on the Twenty ninth day of September one thousand nine hundred eighty nine at about 1402 hours strike Lieutenant Comman- der (Special Duties Communication) Man Singh Rawat (81917 Z) his supe- rior o cer in the O ce of the O cer- in-Charge. Communication center, Delhi and thereby committed an of- fence punishable under Section 45(a) of the Navy Act, 1957.
5.Did on the Twenty ninth day of September one thousand nine hun- dred eighty nine at about 1403 hours use violence against Lieutenant Com- mander, (Special Duties Communi- cation) Man Singh Rawat (81917 Z) his superior o cer in the O ce of the O cer-in-Charge. Communica- tion center, Delhi and thereby com- mitted an o ence under Section 45(c)
of the Navy Act, 1957.
7. Twelve charges were framed against B.S. Ahluwalia (respondent in CA 7806/97) but the Court Mar- tial found him guilty of charges 5, 7 and 10 and with certain variations of charges 1, 2 and 3. They are:-
1.At Dehradun on 22.2.1985, while employed as CWE, Dehradun and having already given technical sanction for Table Dining (OR) FD-
165@ 450/- per table, with intent to defraud, vide Contract Agreement No. CWE/CLT 23 of 84-85, en- tered into an agreement with M/s. Doon Furnishers for 496 dining tables @ Rs. 760/- per table and thereby caused loss to the State to the tune of Rs. 1,38,800/-.
2.At Dehradun, on 21.6.1985, while employed as CWE, Dehradun
| with | intent to defraud vide CA |
| No. | CWE/DDN/6 of 85-86, nal- |
ized a contract agreement with Allied Traders for supply and xing of ceil- ing fans at an exorbitant rate of Rs. 498/- per fan, while DGSD contract rate was Rs. 413.56 per fan.
3. At Dehradun, on 21.6.1985, while employed as CWE Dehradun with intent to defraud vide CA No. CWE/CLT/7 of 85-86 nalised a contract agreement with M/s. Al- lied Traders for supply and xing of ceiling fans at an exorbitant rate of Rs.488/- per fan, while DGS&D con- tract rate was Rs. 413.56 per fan.
5. At the place and date men- tioned in the Charge No. 4, improp- erly accepted the contract agreement with the altered rates as mentioned in the said charge.
| 438 | Union Of India v. P.D. Yadav 2001 |
7. At the place and date men- tioned in the charge 6 (21.6.1985) im- properly accepted the contract agree- ment with the altered rates as men- tioned in the said charge.
10. At Dehradun between 29.3.1985 and 5.7.1985, while em- ployed as CWE, Dehradun, con- trary to the provisions of para 24 of the General conditions of contract (IAFW-1815Z) instead of claiming composition from M/s. Doon Fur- nishers for failure to complete the work by due date, improperly al- lowed extension of time by 15 days and 30 days for phases I and II re- spectively.
8. Thirteen charges were framed against E.K. Sugathan (respondent in CA 7807/97) and was found guilty of charges 6, 10, 11 and 12 and of charges 1, 2, 3, 4, 5, 7, 8 and 9 with certain variations. He was sentenced to be cashiered and to su er rigor- ous imprisonment for two months. However, while con rming the nd- ing and sentence GOC-in-C. North- ern Command remitted the sentence of rigorous imprisonment. The said charges are:-
1. He at eld between 28th Jan- uary, 1991 to 6th March, 1991 while being Garrison Engineer 671 Engr. Park when ordered to fabricate 28 SL shelters at the cost of Rs. 10 lacs with intent to defraud, splitted the purchases of said order by placing the supply orders in contravention to para 748 of Military Engr. Services Regulations 1968 edition read with HQ Northern Command letter No. 12846/2/policy/II/SB dt. 31 Octo- ber, 1975 which prohibited splitting
of the purchase order to avoid the necessity of obtaining the sanction of higher authority with reference to the total amount of the said order.
2.He at eld, between 25th Jan- uary, 1991 to 6th March, 1991 while being Garrison Engineer 571 Engr. Park when ordered to purchase 5 Sl Shelters, 6 bathing cubicles ock and
6latrine cubicles valued at Rs. 10 lacs, with intent to defraud splitted the said purchase order by placing the supply orders in contravention to para 748 of Military Engr. Services Regulations 1968 edition read with the Northern Command letter No. 42346/2/policy/11/Eng. Dated 31 October, 1975 which prohibit split- ting of the purchase order to avoid the necessity of obtaining the sanc- tion of higher authority with refer- ence to the total amount of the said amount.
3.He, at eld, between 12th March, 1991 to 25th March, 1991, while being Garrison Engineer 571 Eng. Park when ordered to purchase 10 Sl shelters valued Rs. 10 lacs, with intent to defraud, splitted the said purchase order by placing the supply orders in contravention to para 748 of Military Engineer Services Regula- tions edition read with HQ Northern Command letter No.
42346/2/policy/11/E3 dt. 31 Oc- tober, 1975 which prohibited split- ting of the purchase order to avoid the necessity of obtaining the sanc- tion of higher authority with refer- ence to the total amount of the said order.
4. He, at eld between Febru-
| 439 | ||||||||
| size and leaf made out of angle iron | ||||||||
| ary 1, 1991 to February 18, 1991 | ||||||||
| while being Garrison Engineer 571 | 32x32x6mm qty 20 on M/s. | CDS | ||||||
| Engr. Park when ordered to pur- | Traders Malhard Road, Garhi Ud- | |||||||
| chase 713 chassis valued Rs. | 4.281 | hampur at the rate of Rs. | 1650/- | |||||
| lacs, with intent to defraud splitted | each well knowing that the rate ap- | |||||||
| the said purchase order by placing | proved by him was higher than the | |||||||
| the supply order in contravention to | prevailing market rate of Rs. 1329/- | |||||||
| para 748 of Military Engineering Ser- | each. | |||||||
| vices Regulations 1968 edition read | 7. | He, at eld, on | 12th | |||||
| with HQ Northern Command letter | ||||||||
| March, 1991, when Garrison Engi- | ||||||||
| No. | 42346/2/policy/11/EB | dated | neer, | 571 | Engr. | Park with | intent | |
| 31st October, 1975 which prohibited | to defraud placed supply order No. | |||||||
| splitting of the purchase order to | 3027/185/IWS dt. 12th March, 1991 | |||||||
| avoid the necessity of obtaining the | for "Rear corner column made out | |||||||
| sanction of higher to authority with | of ISMB 6"x3"x10' long welded with | |||||||
| reference to the total amount of the | base plate 10"x10"x10mm thick hav- | |||||||
| said order. | ing 4 holes of 7/8" dia and gusset | |||||||
| 5. | He, at eld, between Febru- | plate 4"x4"x6" mm thick welded to | ||||||
| ary 1, 1991 to February 18, 1991, | base plate. Top plate 7"x7"x10mm | |||||||
| while | being GE 571 Engr. | Park, | thick having 2 holes of 9/10" dia | |||||
| when directed by Chief Engineer | welded at tope cleats of angle iron | |||||||
| Northern Command vide letter No. | 50x50x6mm 9" long 4 nos. | having | ||||||
| 42392/203/E3 RR dated November | two holes of 9/16" dia welded to the | |||||||
| 17, 1990 to procure 713 chassis, with- | column at place sq. 10, on M/s. In- | |||||||
| out authority purchased 213 timber | dow Traders, Transport Yard, Ud- | |||||||
| planks of various sizes for which no | hampur, at the rate of each well | |||||||
| sanction existed. | knowing that the rate approved by | |||||||
| 6. | He, at eld, on 13 Feb. 1991, | him was higher than the prevailing | ||||||
| when Garrison Engineer 571 Engr. | market rate of Rs. 1147.50 each Rs. | |||||||
| Park with intent to defraud placed | 2680/-. | |||||||
| supply order No. 3027/169 IWS dt. | 8. | He, at eld, on | 13th | |||||
| 13th February, 1991 for "Steel door | March, 1991, when Garrison Engi- | |||||||
| size 6'-10" double leaf type each di- | neer, | 571 | Engr. | Park with | intent | |||
| vided | in the four parts for | to defraud placed the supply or- | ||||||
| of glass sheets of size 12-3/4"x20 4 | der No. | 3027/199/IWS dt. | 13th | |||||
| Nos. | and PGI sheets 27"x20" duly | March, 1991 for "front right hand | ||||||
| xed and welded provided with two | side column made out of ISMB | |||||||
| lower bolt 6" sliding door belt duly | 6"x3"x10" long welded with base | |||||||
| xed for looking arrangements. The | plate | 10"x10"x10mm thick | having | |||||
| frame of door made out of angle | 4 holes of 7/8" dia and gusset | |||||||
| iron 40x4x40x6mm thick door leaf | plate 4"x4"x6mm thick welded to the | |||||||
| duly xed with three hinges of 4" to | base plate, top plate 7"x7"x10mm | |||||||
| each leaf with two bow handle of 9" | thick | having 2 | holes of 9/10" dia | |||||
| 440 | Union Of India v. P.D. Yadav 2001 | |||||||||||||||||||
| welded atop. | nos cleats angle iron 50x50x6mm 4 | |||||||||||||||||||
| 4 cleats of angle iron | ||||||||||||||||||||
| 50x60x6mm 6" long having 2 holes | "long having two holds 9x16" dia | |||||||||||||||||||
| of 9/16" dia welded to the column | welded to truss for xing of purl in | |||||||||||||||||||
| at places, qty. | 10 on M/s. Mushtak | at places" qty. | 10 on M/s. | Bansi | ||||||||||||||||
| Hardware, Garhi Udhampur at the | Dhar and Sone near Krishna Mandir, | |||||||||||||||||||
| rate of Rs. 2680/- each well know- | Adarsh Colony, Udhampur at the | |||||||||||||||||||
| ing that the rate approved by him | rate of Rs. 27770/- each well know- | |||||||||||||||||||
| was higher than the prevailing mar- | ing that the rate approved by market | |||||||||||||||||||
| ket rate of Rs. 1147.50 each. | rate of Rs. 2218.72 which was higher | |||||||||||||||||||
| 9. | He, at eld on 16th March, | than the prevailing market rate. | ||||||||||||||||||
| 1991, Garrison Engineer, 571 Engr. | 11. | He, | at eld on 1 Feb., | |||||||||||||||||
| Park with intent to defraud placed | 1991, when Garrison Enginner, 571 | |||||||||||||||||||
| the supply order No. 3027/205/IWS | Engr. | Park with intent to de- | ||||||||||||||||||
| dt. 16th March, 1991 for middle col- | fraud placed the supply order No. | |||||||||||||||||||
| umn made of ISMB 6"x3"x10 long | 3027/148/IWS dt. | 1 Feb., 1991 for | ||||||||||||||||||
| welded with base plate 10"x10"mm | "timber plank partal 11x11"x8-3/4" | |||||||||||||||||||
| thick | having | four | holes | of | 7/8" | free from cracks qty. 60 on M/s. Ak- | ||||||||||||||
| dia and gusset plate 4"x4"x6mm | bar Furniture House and Saw Mills, | |||||||||||||||||||
| thick having four holes of 7/8" dia | Garhi, Udhampur, at the rate of Rs. | |||||||||||||||||||
| and gusset plate 4"x4"x6mm thick | 570/- each well knowing that the rate | |||||||||||||||||||
| welded to the base plate, top plate | approved by him was higher than the | |||||||||||||||||||
| 7"x7"x10mm thick having two holes | prevailing market rate of Rs. 429/- | |||||||||||||||||||
| of 9/10 welded at top. | 4 cleats of | each. | ||||||||||||||||||
| angle iron 50x50x6mm 6" long hav- | 12. | He, at eld, on 12th | ||||||||||||||||||
| ing two holes of 9/10" dia welded to | ||||||||||||||||||||
| Feb.,. | 1991, when Garrison En- | |||||||||||||||||||
| the column at places qty 10, on M/s. | gineer, | 571 Engr. | Park | with in- | ||||||||||||||||
| Vickey Enterprises Dhar Road, Ud- | tent | to defraud | placed | the | sup- | |||||||||||||||
| hampur at the rate of Rs. | 2680/- | ply | order No. | 3027/162/IWS | dt. | |||||||||||||||
| each well knowing that the rate ap- | 12th Feb., 1991 for sal wood plants | |||||||||||||||||||
| proved by him was higher than the | 3600mx 225mmx100mm" qty. 25 on | |||||||||||||||||||
| prevailing market rate of 1147.50 | M/s. | Sharma Saw Mills Ram Na- | ||||||||||||||||||
| each. | gar Chowk. Udhampur at the rate | |||||||||||||||||||
| 10. | He, at eld, on 12th March, | of Rs. 1250/- each well knowing that | ||||||||||||||||||
| 1991, when Garrison Engineer, 571 | the rate approved by him was higher | |||||||||||||||||||
| Engr. | Park with intent to de- | than the prevailing market rate of Rs. | ||||||||||||||||||
| fraud placed the supply order No. | 858/- each. | |||||||||||||||||||
| 3027/183/IWS dated 12th | March, | 9. | A.K. Malhotra (respondent | |||||||||||||||||
| 1991 for middle side made out of | ||||||||||||||||||||
| in CA 7808/97) was tried on elven | ||||||||||||||||||||
| at 50x50x6mm welded to 6mm thick | charges. He was not found guilty of | |||||||||||||||||||
| plate of size 14x7" 1 nos. at joints, | charges 1, 2, 4 and 6 to 11, He was | |||||||||||||||||||
| 6 cleats of AI 50x50x6mm 6" long | found guilty of charges 3 and 5. He | |||||||||||||||||||
| welded attend to each truss having | was sentenced to be cashiered and his | |||||||||||||||||||
| 9/16" dia hole for xing columns 6 | ve years service was forfeited for the | |||||||||||||||||||
| 441 | |||||||||
| purpose of pension. | tober, 1987 and 14th December, 1987 | ||||||||
| On revision he | |||||||||
| was not found guilty of charges 1, 6, | when DDST HQ ATNKK & G Area, | ||||||||
| 7, 8 and 11 but was found guilty of | improperly and without justi cation | ||||||||
| charges 2, 9 and 10 with exceptions. | obtained approval for local purchase | ||||||||
| Consequently there was revision in | of 29 KL of Cresoli Liquid Black from | ||||||||
| sentence also sentencing him to be | MG ASC HQ Southern Command, | ||||||||
| cashiered, to su er rigorous impris- | when there was no emergent require- | ||||||||
| onment for six months and to forfeit | ment of local purchase of that quan- | ||||||||
| all the arrears of pay due to him at | tity of the said item. | ||||||||
| the time of his cashiering. Con rm- | 9. | At Madras, | between 31 | ||||||
| ing authority while con rming the | |||||||||
| Oct. | 1987 and 25 November, 1987 | ||||||||
| nding and sentence, had revised and | when DDST HQ ATNKK & G | ||||||||
| remitted the sentence of forfeiture of | Area, improperly allowed supply De- | ||||||||
| all arrears of pay na allowances and | pot, Madras, to split-up the sanc- | ||||||||
| other public money due to him at the | tioned local purchase of 19.85 KL | ||||||||
| time of his cashiering on 13.2.1991, | of Cresoli Liquid Black valued at | ||||||||
| which was promulgated on 16.3.1991. | Rs. | 2,67.975.00 (Rupees two lakhs | |||||||
| Charges 2, 3, 5, 9 and 10 are:- | sixty seven thousand nine hundred | ||||||||
| 2. | At Madras, | between Aug. | seven ve only), in order to bring | ||||||
| 87 and Nov. | 87, when DDST HQ | the same within the nancial pow- | |||||||
| ATNKK & G Area. improperly or- | ers of MG ASC, HQ Southhern Com- | ||||||||
| dered dispensation of sample test- | mand, contrary to Rule 133 of Fi- | ||||||||
| ing from Composite Food Labora- | nancial Regulation Part I (Volume I). | ||||||||
| tory, of 41.098 tons of Tea (CTC) | 1983. Which prohibits such splitting- | ||||||||
| locally purchased by Supply Depot, | up. | ||||||||
| Madras, from M/s. | Vickey Enter- | 10. At Madras, between Novem- | |||||||
| prises, Madras, contrary to Army | |||||||||
| ber 1987 and February 1988, When | |||||||||
| HQ letter No. | 72312/III/2/SI-4 | DDST HQ ATNKK & G Area, with | |||||||
| dated 11 Nov. 86. | intent to defraud, directed Supply | ||||||||
| 3. | At | Madras | between Oc- | Depot, Margao, to split-up the sanc- | |||||
| tober, 1987 and November, 1987, | tioned local purchase of 86, 190.800 | ||||||||
| when DDST HQ ATNKK and G | Kgs of Meat Tinned valued at Rs. | ||||||||
| Area, improperly ordered dispensa- | 61,19,451.23 (Rupees sixty one lakhs | ||||||||
| tion of sample testing from Compos- | nineteen thousand four hundred fty | ||||||||
| ite Food Laboratory or Defence Re- | one and paise twenty three only), in | ||||||||
| search Laboratory (Material), Kan- | order to bring the same within the | ||||||||
| pur, | of 19.85 IL | of Cresol Liq- | nancial powers of MG ASC, HQ | ||||||
| uid Black locally purchased from | Southern Command. | ||||||||
| M/s. | Gautam Chemicals, Madras | 10. We notice the relevant provi- | |||||||
| and M/s. Testo Chemicals, Madras, | |||||||||
| sions of the Acts and Regulations:- | |||||||||
| contrary to Para 1086 of ALC Train- | The Army Act 1950 | ||||||||
| ing Volume II (Supplies) 1968. | |||||||||
| "71. Punishments awardable by | |||||||||
| 5. At Madras, between 24th Oc- | |||||||||
| 442 | Union Of India v. P.D. Yadav 2001 |
courts martial.- Punishments may be in icted in respect of o ences com- mitted by persons subject to this Act and convicted by courts martial, ac- cording to the scale following, that is to say,-
(a)...
(b)...
(c)...
(d)...
(e)...
(f)...
(g)...
(h)forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;
(i)...
(j)...
(k)forfeiture in the case of a per- son sentenced to cashiering or dis- missal form the service of all arrears of pay and allowances and other pub- lic money due to him at the time of such cashiering or dismissal;
(l)..."
Pension Regulations for the Army, 1961
"1. Unless otherwise provided, these Regulations shall apply to the personnel of the Army and all claims to pension, gratuity or allowances shall be regulated by the regulations in force at the time of an individual's retirement, release, resignation, dis- charge, death etc., as the case may be."
"2-A Unless there be something repugnant in the subject of context, the terms de ned in this Chapter are used in the regulations in the sense
here explained:-
(1) to (3) ...
(4)Pension shall include gratuity except when it is used in contradic- tion to term gratuity.
(5)to (7) ..."
"3. The full rate of pension or gratuity provided for in these Reg- ulations shall not be granted unless the service rendered has been satis- factory. If the service has not been satisfactory, the competent author- ity may make such reduction in the amount of pension or gratuity as it thinks proper."
"4. Future good conduct shall be an implied condition of every grant of a pension or allowance."
"16. (a) When an o cer who has to his credit the minimum period of qualifying service required to earn a pension, is cashiered or dismissed or removed from the service, his/her pension, may at the discretion of the President, be either forfeited or be granted at a rate not exceeding that for which he/she would have other- wise quali ed, had he/she retired on the same date."
The Navy Act, 1957
"81. (1) The following punish- ments may be in icted under this Act, namely:-
(a)...
(b)...
(c)dismissal with disgrace from the naval service;
(d)...
(e)dismissal from the naval ser-
vice;
443
(f) to (1) ...
(m) forfeiture of pay, head money, bounty, salvage, prize money and al- lowances earned by and all annuities, pensions, gratuities, medals and dec- orations granted to, the o ender or of any one or more of the above par- ticulars; also in the case of desertion, of all clothes and e ects left by the deserter in the ship to which he be- longs;
(h) ...
(2) .."
The Navy (Pension) Regulations, 1964
"15. O cers dismissed, dis- charged, etc.- (1) No pension shall be granted to an o cer who is dismissed with disgrace from service.
(2)In the case of an o cer who is dismissed otherwise than with dis- grace from the service, the question whether any pension shall be granted and if so, the rate of such pension shall be the rate of such pension shall be decided by the Central Govern- ment, provided that hate pension, if granted shall not exceed the rate which would have been admissible to him if he had retired on the same date.
(3)..."
11. It is useful to look at the po- sition of law emerging from various decisons. The facts of the case in Lt. Col (T.S.) Harbans Singh Sandhu v. Union or India & Ors., [Writ Peti- tion No. 553 of 1972 decided on November 22, 1978] were that a Gen- eral Court Martial tried the peti- toner and imposed a punishment of
cashiering under Section 71(d) of the Army Act and no further punishment was imposed under Section 71(h) of the Army Act for forfeiture of ser- vice for the purpose of increased pay, pension or any other prescribed pur- pose; he applied for grant of pen- sionary bene ts; the authorities did not respond; hence, he led writ pe- titon seeking direction to the author- ities for granting gratuity and pen- sion due. Both the sides pointed to Regulation 16(a). From the records, it was found that no order had been passed under the said Regulation. In the absence of passing any order un- der Section 16(a), the Court directed the respondent to pay the sum due towards gratuity and pension. Under Section 71(h) a punishment of forfei- ture of service for the purpose of pen- sion could be passed but neither that punishment was imposed on the pe- titioner nor order was passed under Regulation 16(a) forfeiting his pen- sionary bene ts. In those circum- stances, the Court gave direction as stated above.
12. It is clear from the said judgment that the question of law, whether regulations being non- statutory could be enforced fcr deny- ing pension; whether those regula- tions were contrary to the provisions of the Act or Rules or whether when punishment wa snot imposed under SEction 71(h) or (k), even then pen- sion could be forfeited under Regu- lation 16(a) that arise for considera- tion in the present cases, were neither raised nor decided.
13. In the case of Major G.S. Sodhi v. Union of India also, re-
| 444 | Union Of India v. P.D. Yadav 2001 |
lief was granted relying on the deci- sion of Harbans Singh Sandhu men- tioned above without deciding ques- tions of law as is clear from para 3 of the Judgment. This judgment pro- ceeded on the ground that in Har- bans Singh Sandhu's case, a ques- tion of law that if no other penalty of forfeiting the pensionary bene ts was passed under Section 71, pen- sionary bene ts could not be with- held; but in Harbans Singh Sandhu's case, this question was not decided; it was only noticed as a fact that no fur- ther penalty was imposed under Sec- tion 71(h) of the Act. The direction was given in that case as no order had been passed forfeiting pension under Regulation 16(a). No principle of law was decided in the said cases. In this view, these two judgments do no support hte respondents. The Full Bench of the High Court itself in Malhotra's case has said that in G.S.Sodhi's case, no legal issue was decided and, therefore, it cannot be a precedent. The High Court in Ya- dav's case speci cally referring tot he cases of Harbans Singh Sandhu and G.S. Sodhi held that they were not applicable to support the case of the petitoner.
14. This Court in Major (Re- tired) Hari Chand Pahwa v. Union of India & Anr. while dealing with the speci c contention that pension have no statutory force and pen- sionary bene ts could not be for- feited under Regulation 16(a), has in clear terms in para 5 stated that " We do not agree with the second contention advanced by the learned counsel. The provision of Regulation
16(a) are clear. Even if it is assumed that the Pension Regulation have no statutory force, we fail to understand how the provisions of the said Reg- ulations are contrary to the statu- tory provisions under the Act or the Rules. The pension has been pro- vided under these Regulations. It is not disputed by the learned counsel that pension was granted to the ap- pellant under the said Regulations. The regulations which provided for the grant of pension can also pro- vide for taking it away on justi - able grounds. A shoe-cause notice was issued to the appellant. his reply was considered and thereafter the President passed the order for- feiting the pension and death-cum- retirement gratuity. We see no in-rmity in the order. The appeal is, therefore dismissed." We are in re- spectful agreement with the view ex- pressed in the aforementioned deci- sion that the Regulations, which pro- vide for grant of pension, can also provide for taking it away not arbi- trarily but subject to satisfying the conditions incorporated in the Regu- lations.
15.In Union of India & Ors.
v.Brig. P.K. Dutta (Retd.) [1995 Supp. (2) SCC 29] while speci - cally dealing with the e ect of order passed under Section 71(h) and (k) and the order passed under Regula- tion 19(a) directly arising on the con- tentions as are raised in the present cases held that clause (h) of Section 71 contemplates forfeiture of service for the purpose of increased pay, pen- sion or any other prescribed purpose and is wholly di erent from Regula-
445
tion 16(a). It is further stated that a reading of both these provisions clearly brings out the distinct elds occupied by them and this Court went on to say:-
"Regulation 16(a) contemplates a situation where an o cer is cashiered, dismissed or removed from service and provides how his pen- sion is to be dealt with. Whereas Section 71(h) provides the punish- ments which can be awarded by the Court Martial. Section 71(h) con- templates a punishment awarded at the conclusion of the Court Martial while Regulation 16(a) contemplates a stage subsequent to the awarding of punishment of Court Martial and its con rmation. The nature and con- tent of both the impositions is alto- gether di erent and distinct. So is the eld occupied by clause (K) of Section 71 wholly distinct from Reg- ulation 16(a). We are, therefore, un- able to see any inconsistency between Section 71(h) and Regulation 16(a)."
In this judgment, a reference is made to the case of Major Hari Chand Pahwa (supra) and a rmed that the pension regulations, though non-statutory in character, the pen- sionary bene ts are provided for and are payable under the said regula- tions; therefore, the same can be withheld or forfeited as provided by the regulations. In this judgment, it is also stated that Army Rule 14 has absolutely no relevance in regard to the forfeiture of pension under Reg- ulation 16(a).
16. Yet again in the case of Union of India & Ors. v. Lt. Col. P.S. Bhargava it is stated that Regulation
16(a) gives the President the power either to forfeit or to reduce the rate of pension in the event of an o - cer being cashiered, dismissed or re- moved from the service. Reference is made to Regulation 4 to say that con- duct of the o cer must be good as a condition for the grant of pension or allowance.
17. Dealing with the 'contention that withholding the pension when the respondent had been Court Mar- tial led and dismissed, would amount to double jeopardv, this Court in Union of India & Ors. v. Subedar Ram Narain & Ors. , did not nd any merit in the contention and held thus:-
"Section 71 of the Army Act pro- vides for di erent types of punish- ments which could be in icted in re- spect of an o ence committed by a person subject to the Army Act and convicted by courts martial. The punishments are of varying degrees, from death as provided by Section 71(a) to stoppage of pay and al- lowance as provided by Section 71(j) is of a lesser nature than that of dismissal from service as provided by Section 71(e). When punishment under Section 71(j) is imposed, no recourse can be had to Regulation 113(a), because the said regulation applly only if an order of dismissal is passed against the person concerned. In other words Section 71(j) and Reg- ulation 113(a) cannot apply at the same time. On the other hand, when the punishment of dismissal is in-icted under Section 71(e) the pro- visions of Regulation 113(a) become attracted. The result of punishment
| 446 | Union Of India v. P.D. Yadav 2001 |
is that the bene t of pension or gra- tuity which is given under the reg- ulation is taken away. The order of dismissal under the provisions of the Army Act in the case of an employee like the respondent would make him ineligible for pension or gratuity. For a person to be eligible to the grant of pension or gratuity, it is impera- tive that he should not have been dis- missed from service. The dismissal under the provisions of the Army Act is therefore, a disquali cation for get- ting pension or gratuity."
18. The High Court in the im- pugned judgments has held that Reg- ulation 16(a) is not inconsistent with Section 71(h) and (k) of the Army Act and that they cover di erentelds: so also Regulation 16(a) and Rules 14(5) and 15 of the Army Rules operate in di erent elds. The High Court has upheld the validity of Army Pension Regulation 16(a) and Navy Pension Regulation 15(2). The High Court also did not nd that these Regulations were inconsistent with or contrary to relevant provi- sions of the Act relating to punish- ment referred to in the judgment. We approve these conclusions of the High Court. The High Court quashed the impugned orders forfeiting pension on the ground that prior satisfactory service of the respondents, coupled with the fact that Court Martial did not consider it appropriate to impose the punishment under Section 71(h), was not taken into consideration by the authorities. The High Court was of the view that although a person may be cashiered or dismissed from service; that itself was not enough
to forfeit pension and that prior sat- isfactory services of the respondents ought to have been taken into consid- eration before passing the order for- feiting pension fully or partly. The High Court also held that provisions of Regulation 15(2) of the Navy Pen- sion Regulation are not ultra vires of the provisions of Section 81, 82, 47 and 27 of the Navy Act and that where the Court Martial has imposed a punishment (like dismissal) which does not entail forfeiture of pension, it is still open to the competent au- thority under the Regulation 15(2) to forfeit a part or whole of the pension by following due procedure. With re- gard to the delay in passing orders under the pension regulations, the High Court observed that the orders should be passed within a reasonable period, preferably within six months of cessation of service. Of course, whether there was delay or not, in passing the order forfeiting pension depends on the facts of each case. However, the High Court having re- gard to the facts of the cases did not consider the delay unreasonable and, therefore, declined to quash the or- ders of forfeiting pension merely on the ground of delay in passing them and rightly so in our opinion.
19. Section 71 of the Army Act provides for various kinds of pun- ishments which may be imposed for o ences committed by persons sub- ject to the Act and convicted by Court Martial which may vary from death to stoppage of pay and al- lowances. In terms of Army Pen- sion Regulation 16(a) and Navy Pen- sion Regulation 15(2), pension may
447
be forfeited partly or fully subject to the conditions mentioned therein. These Regulations are independent and the authority to grant or for- feit pension is the President of India and the Central Government respec- tively. As rightly found by the High Court, the said Regulations are nei- ther inconsistent with not contrary to the provisions of the Army Act or the Navy Act as the case may be. The said Regulations and the provisions dealing with the punish- ments under the Acts cover di er- ent elds and have di erent purposes to serve. Punishments are imposed after trial on the basis of the mis- conduct proved. The pension regu- lation deal with the grant or refusal of pension depending on satisfactory qualifying service earned by a person and depending on the nature of pun- ishments imposed, mentioned in the Regulations. The Regulations come into play at a stage subsequent to the imposition of punishment. No doubt, pension is not a bounty but it is the earning of a person after satisfactory completion of qualifying service and if not otherwise disenti- tled. Under Section 71(h), a punish- ment of forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose, can be imposed. If forfeiture of service has the e ect of reducing total qualify- ing service required to earn pension, a person concerned is disentitled for pension itself. In other cases, it may have bearing in regard to claim for increased pay or any other purpose. If by virtue of such punishment itself, a person is not entitled for any pen- sion, the question of passing an order
forfeiting pension under Regulation 16(a) may not arise. As per Section 71(k), in case of a person sentenced to cashiering or dismissal from the service, a further punishment of for- feiture of all arrears of pay and al- lowances and other public money due to him at the time of such cashiering or dismissal may be imposed. Clause
(k) of Section 71 does not speak of pension unlike clause (h) of the same Section.
20. The argument that since no punishment was imposed under clause (k) by the authorities, al- though it could have been done, then is no warrant to pass an order forfeit- ing pension under the Army Pension Regulations in respect of same of- fence cannot be accepted. As already noticed above, the provisions relat- ing to punishments under the Acts and pension Regulations operate in di erent elds. Clause (k) refers to forfeiture of arrears of pay and al- lowances and other public money due to a person at the time of cashiering or dismissal. Pension is one, which becomes due subsequent to retire- ment or termination of service sub- ject to satisfying certain conditions of satisfactory qualifying service and if not otherwise disentitled for claiming pension. Firstly, clause (k) does not speak of pension as such: it speaks of all arrears. pay, allowances and other public money due to a person. It cannot be said that on the date of cashiering or dismissal there could be any arrears of pension. Section 73 of the Army Act enables the au- thorities to impose punishments in combination. Merely because pun-
| 448 | Union Of India v. P.D. Yadav 2001 |
ishment is not imposed under clause
(h) or (k) of Section 71 and other punishments are imposed, it does not mean that the President is deprived of his power and jurisdiction to pass order under Regulation 16(a); so also the Central Government under Reg- ulation 15(2)( of the Navy Pension Regulations taking note of the pun- ishment imposed under Section 81 of the Navy Act. In a case where punishment is imposed under Section 81(m) of the Navy Act forfeiting pen- sion and/or gratuity, need for pass- ing an order forfeiting pension under Regulation 15(2) of the Navy (Pen- sion) Regulations may not arise. But that does not mean that in cases of punishments imposed, which are cov- ered by Regulation 15 the Central Government is deprived of its power to pass appropriate order under the said Regulation, when such power is speci cally conferred on the Central Government under the very Regula- tions, which enables granting of pen- sion and/or gratuity. It is rather not possible to accept the contention that a General Court Martial and con rming authorities imposing pun- ishments can debar the President or the Central Government from pass- ing orders as provided for speci cally and expressly under the Pension Reg- ulations.
21. A contention, though fee- bly, was advanced on behalf of some of the respondents that forfeiture of pension in addition to the punish- ment imposed under Section 71 of the Army Act amounted to double jeop- ardy. In our view, this contention has no force. There is no question
of prosecuting and punishing a per- son twice for the same o ence. Pun- ishment is imposed under Section 71 of the Army Act after trial by Court Martial. Passing an order under Reg- ulation 16(a) in the matter of grant or forfeiture of pension comes there- after and it is related to satisfactory service. There is no merit in the contention that the said Regulation is bad on the ground that it autho- rized imposition of a double penalty; may be in a given case, penalty of cashiering or dismissal from service and the consequential forfeiture of pension may be harsh and may cause great hardship but that is an aspect which is for the President to con- sider while exercising his discretion under the said Regelation. May be in his discretion, the President may hold that the punishment of cashier- ing or dismissal or removal from ser- vice was su cient having regard to circumstances of the case and that a person need not be deprived of his right to pension. A crime is a le- gal wrong for which an o ender is li- able to be prosecuted and punished but only once for such a crime. In other words, an o ender cannot be punished twice for the same o ence. This is demand of justice and pub- lic policy supports it. This princi- ple is embodied in the well-known maxim "Nemo debet bis vexari, si contest curiae quod sit prouna et sa- dem causa" meaning no one ought to be vexed twice if it appears to the court that it is for one and the same cause. Doctrine of double jeop- ardy is a protection against prosecu- tion twice for the same o ence. Un- der Articles 20-22 of the Indian Con-
449
stitution, provisions are made relat- ing to personal liberty of citizens and others. Article 20(2) expressly pro- vides that "No one shall be pros- ecuted and punished for the same o ence more than once." O ences such as criminal breach of trust, mis- appropriation, cheating, defamation etc., may give rise for prosecution on criminal side and also for action in civil court/other forum for recovery of money by way of damages etc., un- less there is a bar created by law. In the proceedings before General Court Martial, a person is tried for an o ence of misconduct and whereas in passing order under Regulation 16(a) for forfeiting pension, a per- son is not tried for the same o ence or misconduct after the punishment is imposed for a proved misconduct by General Court Martial resulting in cashiering, dismissing or removing from service. Only further action is taken under Regulation 16(a) in re- lation to forfeiture of pension. Thus, punishing a person under Section 71 of the Army Act and making order under Regulation 16(a) are entirely di erent. Hence, there is no question of applying principle of double jeop- ardy to the present cases.
22.Our discussion and reason- ing with reference to scope and appli- cation of Army Pension Regulation 16(a) will equally apply in relation to Navy Pension Regulation 15(2).
23.It is to be noted that the punishment imposed on these re- spondents by Court Martial, as con-rmed, have become nal as the re- spondents have not questioned their validity and correctness any further.
The High Court having rejected all other contentions raised by the re- spondents, partly allowed their claim on the ground that the otherwise prior satisfactory services of the re- spondents till the date of imposi- tion of various punishments on them was not taken into consideration by the President or the Central Govern- ment, as the case may be, in passing the orders under the Pension Regula- tions forfeiting their pension. Mainly on this ground, the High Court di- rected the authorities to reconsider the cases of the respondents and pass orders after issuing supplementary show-cause notices. Consideration of prior satisfactory service of a person till the date of imposition of punish- ment of cashiering or dismissal or re- moval from service cannot be read into Army Pension Regulation 16(1) or Navy Pension Regulation 15(2). For exercise of power under the said Regulations, what is to be seen is whether the very terms of these Reg- ulations are satis ed or not. A plain reading of these Regulations shows that in case of a person who has been cashiered or dismissed or re- moved from service, at the discre- tion of the President under Regula- tion 16(a) and in case of an o cer who is dismissed otherwise than with disgrace from the service, the Central Government under Regulation 15(2) of the Navy Pension Regulations can pass order forfeiting pension, partly or fully. The very fact that such punishment is imposed on a person for proved misconduct after trial by the Court Martial, itself shows his unsatisfactory service. In our view, the High Court has read something
| 450 | Union Of India v. P.D. Yadav 2001 |
more in these Regulations in insist- ing for considering prior satisfactory service of a person up to the date of imposition of punishment. Which is not required by the very Regula- tions. We may clarify here itself that in these cases we are only consider- ing, so far as they relate to grant or forfeiture of pension in relation to and in the context of regulation 16(a) of Pension Regulations for the Army and Regulation 15(2) of the Navy (Pension) Regulations. Under Regulation 2-A(4) of the Army Pen- sion Regulations 'pension' is de ned as including gratuity except when it is used in contradiction to the term gratuity. Hence the pension and gra- tuity., as de ned, are included for consideration. Regulation 3 shows that full rate of pension of gratuity shall not be granted unless the ser- vice rendered has been satisfactory; if the service has not been satisfac- tory the competent authority may re- duce the rate of pension or gratu- ity as it thinks proper. Thus, Reg- ulation 3 and Regulation 16(a) of the Army Pension Regulations deal with distinct and di erent situations. Further, Regulation 4 states that fu- ture good conduct shall be an implied condition for every grant of pension or allowances. Consideration of sat- isfactory service may be relevant in terms of Regulation 3 for granting pension in the normal course after satisfactory qualifying service. But Regulation 16(a) being a distinct and speci c Regulation enables for forfei- ture of pension, partly or fully, as a sequel to imposition of a particu- lar type of punishment. Regulation 16(a) in this regard is self-contained.
The High Court clearly committed an error in holding that previous sat- isfactory service of a person up to the date of imposition of punishment should have been taken into con- sideration for exercise of power un- der Regulation 16(a) and it cannot be sustained. This being the po- sition we are unable to agree with the High Court that a previous sat- isfactory service of a person prior to the date of imposition of punishment should be considered for the purpose of Regulation 16(a). Consequently the impugned judgments cannot be sustained.
24.What remains to be seen is whether the orders passed by the President and the Central Govern- ment, as the case may be, forfeiting pension of the respondents, were ar- bitrary, unreasonable or without ap- plication of mind.
25.It is the case of the appellants that before passing orders forfeit- ing pension either under Army Pen- sion Regulation 16(a) or Navy Pen- sion Regulation 15(2), show cause notices were issued to the respon- dents; replies received from the re- spondents and all the relevant fac- tors appearing from the records were considered. According to them, the orders passed in their discretion by the President or the Central Gov- ernment as the case may be, hav- ing regard to all aspects, are justi-ed and sustainable. We have pe- rused copies of the notings of the Ministry of Defence and the orders made pursuant thereto. From the said records, we nd that there has been application of mind and hav-
451
ing regard to the serious nature of charges already narrated above and keeping in view the relevant circum- stances including the punishments imposed on proved charges, the im- pugned orders appear to have been passed forfeiting pension. The said orders passed forfeiting pension are not merely based on the fact that the appellants were punished by Court Martial, as assumed by the High Court. Moreover, by issuing show- cause notices giving opportunity to the respondents to explain the cir- cumstances and their hardship be- fore passing the impugned order, the principles of natural justice were also complied. In the given circumstances when the impugned orders forfeit-
ing pension were passed in the dis- cretion of the authorities exercising the power available under the Reg- ulations, we cannot nd fault with them. Thus, the orders passed are neither arbitrary nor unreasonable. In this view, we do not nd any er- ror or in rmity or illegality in passing the said orders.
26. Having regard to the provi- sions and position of law, the dis- cussion made and for the reasons recorded hereinabove, we nd merit in these appeals and they deserve to be accepted, Hence, the impugned judgments of the High Court are set aside and the appeals are allowed. No costs.
| 452 | Union Of India v. P.D. Yadav 2001 |
Chapter 38
Union of India v. L.D. Balam Singh 2002
Union of India & Ors v. L.D. Balam Singh [2002] Insc 216 (24 April 2002)
U.C. Banerjee & Y.K. Sabharwal
Banerjee, J.
While it is true that Army per- sonnel ought to be subjected to strictest form of discipline and Ar- ticle 33 of the Constitution has con- ferred powers on to the Parliament to abridge the rights conferred un- der Part III of the Constitution in respect of the members of the Armed Forces, but does that mean and im- ply that the Army Personnel would be denuded of the Constitutional privileges as guaranteed under the Constitution ? Can it be said that the Army Personnel form a class of citizens not entitled to the Consti- tution's bene ts and are outside the purview of the Constitution ? To an- swer above in the a rmative would be a violent departure to the basic tenets of the Constitution. An Army Personnel is as much a citizen as any other individual citizen of this coun-
try. Incidentally, the provisions as contained in Article 33 does not by it- self abrogate any rights and its appli- cability is dependent on Parliamen- tary legislation. The language used by the framers is unambiguous and categorical and it is in this perspec- tive Article 33 may be noticed at this juncture. The said Article reads as below :-
"33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc. - Parliament may, by law, deter- mine to what extent any of the rights conferred by this Part shall, in their application to, -
(a)the members of the Armed Forces; or
(b)the members of the Forces charged with the maintenance of public order;or
(c)persons employed in any bu- reau or other organisation estab- lished by the State for purposes of intelligence or counter intelligence; or
| 454 | Union of India v. L.D. Balam Singh 2002 |
(d) persons employed in, or in connection with, the telecommunica- tion system set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to en- sure the proper discharge of their du- ties and the maintenance of discipline among them."
A plain reading thus would re- veal that the extent of restrictions necessary to be imposed on any of the fundamental rights in their ap- plication to the armed forces and the forces charged with the mainte- nance of public order for the pur- pose of ensuring proper discharge of their duties and maintenance of disci- pline among them would necessarily 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 Constitu- tions makers were obviously anxious that no more restrictions should be placed than are absolutely necessary for ensuring proper discharge of du- ties and the maintenance of discipline amongst the Armed Force Personnel and therefore Article 33 empowered the Parliament to restrict or abridge within permissible extent, the rights conferred under Part III of the Con- stitution in so far as the Armed Force Personnel are concerned.
(In this context reference may be made to the decision of the Supreme Court in the case of B. Viswar & Ors. v. Union of India & Ors., reported in AIR 1983 S.C. 658) as also a judg- ment of the Calcutta High Court in the case of Lt. Col. Amal Sankar Bhaduri v. Union of India & Ors.
(1987 CLT 1) of which one of us (U.C. Banerjee,J.) was a party.
This Court in the case of Prithi Pal Singh v. The Union of India (AIR 1982 SC 1413) observed :
"It is one of the cardinal features of our Constitution that a person by enlisting in or entering armed forces does not cease to be a citizen so as to wholly deprive him of his rights un- der the Constitution. More so when this Court held in Sunil Batra v. Delhi Administration (1979) 1 SCR 392 at p. 495 :
(AIR 1978 SC 1675 at p. 1727) that even prisoners deprived of per- sonal liberty are not wholly denuded if their fundamental rights.
In the larger interest of national security and military discipline Par- liament in its wisdom may restrict or abridge such rights in their appli- cation to the Armed Forces but this process should not be carried so far as to create a class of citizen not en- titled to the bene ts of liberal spirit of the Constitution.
Persons subject to Army Act are citizens of this ancient land hav- ing feeling of belonging to the civi- lized community governed by the lib- erty oriented Constitution." While answer to the rst question posed above is in the a rmative, the con- textual facts bear out and pose a further issue as regards availability of substantive and procedural safe- guards under a speci c legislation the High Court answered it in the af-rmative since such procedural safe- guards are said to be mandatory in nature.
455
Adverting to the factual matrix presently under consideration, it ap- pears that on a petition led un- der Articles 226/227 of the Con- stitution of India, the respondent herein prayed for quashing of the charge-sheet, sentence of the General Court Martial, order of con rmation of General O cer Commanding and also to quash the trial of the General Court Martial. The facts of the mat- ter however brie y are as below:
The petitioner was serving the In- dian Army having joined the same on 28.10.1976. He was posted to 18 Cav- alry C/o 56 A.P.O. during the year 1990-91 at Patiala Cantt. He was re- siding with his family in a Govern- ment married accommodation being House No.255/30 K.S. Colony, Pa- tiala Cantt. On 28.12.1991 a search of his residence was conducted by Army O cers/O cials and allegedly opium weighing 4.900 Kgs. was re- covered from his family quarter. The petitioner was thereafter placed un- der Arrest in military custody and was put in the quarter guard of his unit aforesaid and F.I.R. No.378 was lodged at Police Station Sadar Pa- tiala on 28.12.1991. A sample of the opium recovered was forwarded to the Chemical Examiner for analy- sis and the remaining quantity of the opium, a contraband was kept with the Police.
The summary of evidence was or- dered by the Commanding O cer of 64 Cavalry and on the basis of direc- tions from the Brigade Commander, the petitioner was put to trial by the General Court Martial convened un- der the Convening Order. The peti-
tioner was tried under Section 69 of the Army Act for an o ence punish- able under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). After the trial was over, the petitioner was convicted and sen- tenced by the General Court Martial.
Before adverting, however, to the rival contentions as advanced before this Court, it would be worthwhile to refer to the relevant provisions of the Army Act and the Rules framed thereunder. Chapter VI of the Army Act, 1950 stands ascribed to the of- fences and Section 69 therein deals with the civil o ences, which reads as below :-
69. Civil o ences Subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India, commits any civil o ence, shall be deemed to be guilty of an o ence against this Act and, if charged therewith under this section, shall be liable to be tried by a court martial and, on conviction, be pun- ishable as follows, that is to say, -
(a)if the o ence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to su er any punishment, other than whipping, assigned for the o ence, by the aforesaid law and such less pun- ishment as is in this Act mentioned; and
(b)in any other case, he shall be liable to su er any punishment, other than whipping, assigned for the of- fence by the law in force in India, or imprisonment for a term which may
| 456 | Union of India v. L.D. Balam Singh 2002 |
extend to seven years, or such less punishment as is in this Act men- tioned." It is on this score that Sec- tion 109 in Chapter X ought also to be noticed at this juncture. The Sec- tion reads as below :
"109. Power to convene a gen- eral court martial. A general court martial may be convened by the Cen- tral Government of [the Chief of the Army Sta ] or by any o cer em- powered in this behalf by warrant of [the Chief of the Army Sta ]." Having outlined the factual score as above and upon noting of the two several provisions of the Army Act, it would be worthwhile to note Sec- tion 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Needless to record that the petitioner was tried under Sec- tion 69 of the Army Act for an of- fence punishable under Section 18 of the NDPS Act the trial did take place before a General Court Mar- tial and conviction and sentence was also passed therein. It is this sen- tence and conviction which stands challenged in the writ petition moved before the High Court, as noticed above. The NDPS Act admittedly contains certain safeguards and the law reports are replete with case laws pertaining to these safeguards.
Dilution of the safeguards as pre- scribed in the statute has strongly been criticised and negated and the same were ascribed to be strictly mandatory in nature. The issue thus : whether by reason of the respon- dent being a member of the Armed Forces would stand denuded of such a safeguard in the event the General
Court Martial takes note of an of- fence under a speci c statute. Ar- ticle 33 of the Constitution though conferred a power but has not been taken recourse to put a bar or re- straint as regards the non-availability of the statutory safeguards in terms therewith. Before proceeding fur- ther, however, it would be conve- nient to note certain provisions of the NDPS Act, namely, Sections 18:42:50, which read as under :
18. Punishment for contraven- tion in relation to opium poppy and opium. Whoever, in contravention of any provision of this Act or any rule or order made or condition of li- cence granted thereunder, cultivates the opium poppy or produces, man- ufactures, possesses, sells, purchases, transports, imports inter-State, ex- ports inter-State or uses opium shall be punishable
(a)where the contravention in- volves small quantity, with rigorous imprisonment for a term which may extend to six months, or with ne which may extend to ten thousand rupees, or with both;
(b)where the contravention in- volves commercial quantity, with rig- orous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to ne which shall not be less than one lakh ru- pees which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judg- ment, impose a ne exceeding two lakh rupees.
457
(c) in any other case, with rigor- ous imprisonment which may extend to ten years and with ne which may extend to one lakh rupees.
42. Power of entry, search, seizure and arrest without warrant or authorisation :
(1) Any such o cer (being an of-cer superior in rank to a peon, se- poy or constable) of the department of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Govern- ment including para-military forced or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such o cer (being an o cer superior in rank to a peon, sepoy or consta- ble) of the revenue, drugs control, ex- cise, police or any other department of a State Government as is empow- ered in this behalf by general or spe- cial order of the State Government, if he has reason to believe from per- sonal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an of- fence punishable under this Act has been committed or any document or other article which may furnish evi- dence of the commission of such of- fence or any illegally acquired prop- erty or any document or other article which may furnish evidence of hold- ing any illegally acquired property which is liable for seizure or freez- ing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sun-
set :-
(a)enter into and search any such building, conveyance or place;
(b)in case of resistance, break open any door and remove any ob- stacle to such entry;
(c)seize such drug or substance and all materials used in the manu- facture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to con scation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any of- fence punishable under this Act or furnish evidence of holding any ille- gally acquired property which is li- able for seizure or freezing of forfei- ture under Chapter VA of this Act; and
(d) detain and search and, if he thinks proper arrest any person whom he has reason to believe to have committed any o ence punish- able under this Act :
Provided that if such o cer has reason to believe that a search war- rant or authorisation cannot be ob- tained without a ording opportunity for the concealment of evidence or fa- cility for the escape of an o ender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an o cer takes down any information in writing under Sub-Section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his im-
| 458 | Union of India v. L.D. Balam Singh 2002 |
mediate o cial superior.
50. Conditions under which search of persons shall be conducted :- (1) When any o cer duly autho- rised under Section 42 is about to search any person under the provi- sions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person with- out unnecessary delay to the nearest Gazetted O cer of any of the depart- ments mentioned in Section 42 or to the nearest Magistrate.
(2)If such requisition is made, the o cer may detain the person until he can bring him before the Gazetted O cer or the Magistrate referred to in sub-section (1).
(3)The Gazetted O cer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forth- with discharge the person but other- wise shall direct that search be made.
(4)No female shall be searched by anyone excepting a female.
(5)When an o cer duly autho- rised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted O cer or Magis- trate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted O cer or Mag- istrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub- section (5), the o cer shall record the reasons for such be- lief which necessitated such search and within seventy-two hours send a copy thereof to his immediate o cial superior." As regards the mandatory e ect of the provisions as contained in Section 50 above, the Constitution Bench of this Court in Baldev Singh (State of Punjab v. Baldev Singh (1999) 6 SCC 172) has the following to state :
"24. There is, thus, unanimity of judicial pronouncements to the e ect that it is an obligation of the em- powered o cer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the pres- ence of a Gazetted o cer or a Mag- istrate and that the failure to so in- form the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Sec- tion 50. Similarly, if the person con- cerned requires, on being so informed by the empowered o cer or other- wise, that his search be conducted in the presence of a Gazetted o cer or a Magistrate, the empowered o cer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad.
25. To be searched before a Gazetted o cer or a Magistrate, if the suspect so requires, is an ex- tremely valuable right which the leg- islature has given to the person con-
459
cerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted o cer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case.
There is, thus, no justi cation for the empowered o cer, who goes to search the person, on prior infor- mation, to e ect the search, of not informing the person concerned of the existence of his right to have his search conducted before a Gazetted o cer or a Magistrate, so as to en- able him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is su cient if such information is communicated to the person con- cerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search.
The prosecution must, however, at the trial, establish that the em- powered o cer had conveyed the in- formation to the person concerned of his right of being searched in the presence of a Magistrate or a Gazetted o cer, at the time of the intended search.
Courts have to be satis ed at the trial of the case about due compli- ance with the requirements provided
in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the pros- ecution establishes it to the satisfac- tion of the court, that the require- ments of Section 50 were duly com- plied with." On the factual matrix Mrs. Indu Malhotra appearing for the respondent rather emphatically contended that it is an admitted situ- ation that there is non-compliance of Sections 41 and 42 of the NDPS Act since no search warrants were issued and o cers conducting the search were admittedly not duly authorised under the Act and by reason therefor the resultant e ect of state of the sit- uation as above, rendered the entire proceeding stand vitiated.
The decision in Baldev Singh (supra) mainly dealt with the pro- visions of Section 50, which would be dealt with shortly hereafter but presently having a perusal of the rel- evant statutory provisions (in partic- ular Sections 41 and 42) the submis- sion as above cannot but be termed as it has been inevitable and in- escapable. A recent decision of this Court in Roy V.D. v. State of Kerala (2001 SCC (Cri) 42) however, lends credence to conclusion as above since this Court as a matter of fact dealt with the true purport of Sections 41 and 42 of the NDPS Act. The felicity expression as contained therein, how- ever, prompts us to note the same in extenso as below :- "15. It is thus seen that for exercising pow- ers enumerated under sub-section (1) of Section 42 at any time whether by day or by night a warrant of ar- rest or search issued by a Metropoli-
| 460 | Union of India v. L.D. Balam Singh 2002 |
tan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class who has been speci - cally empowered by the State Gov- ernment in that behalf or an autho- risation under sub-section (2) of Sec- tion 41 by an empowered o cer is necessary. Without such a warrant or an authorisation, an empowered o cer can exercise those powers only between sunrise and sunset. How- ever, the proviso permits such an em- powered or authorised o cer to ex- ercise the said powers at any time between sunset and sunrise if he has reason to believe that such a search warrant or authorisation cannot be obtained without a ording opportu- nity for the concealment of evidence of facility for the escape of an of- fender and he records the grounds of his belief.
16.Now, it is plain that no of-cer other than an empowered o - cer can resort to Section 41(2) or ex- ercise powers under Section 42(1) of the NDPS Act or make a complaint under clause (d) of sub-section (1) of Section 36-A of the NDPS Act. It follows that any collection of mate- rials, detention or arrest of a person or search of a building or conveyance or seizure e ected by an o cer not being an empowered o cer or an au- thorised o cer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of o ences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial.
17.To the same e ect is the view
expressed by this Court in State of Punjab v. Balbir Singh (1994 (3) SCC 299 : 1994 SCC (Cri) 634). In para 13 Jayachandra Reddy, J. speaking for the Court observed thus
:
(SCC p. 313) "13. Therefore, if an arrest or search contemplated un- der Sections 41 and 42 is made un- der a warrant issued by any other Magistrate or is made by any o - cer not empowered or authorised, it would per se be illegal and would af- fect the prosecution case and conse- quently vitiate the trial." ....
19. The learned Additional Solic- itor General, however, relying upon conclusion No.(3) in para 57 of State of Punjab v. Baldev Singh (1999 6 SCC 172 : 1999 SCC (Cri) 1080) contends that a search and seizure in violation of Sections 41 and 42 of the NDPS Act does not vitiate the trial but would render the recovery of illicit article suspect and would only vitiate the conviction and sen- tence of the accused if the conviction has been recorded solely on the ba- sis of such an illicit article, so the High Court was right in not quash- ing the proceedings. We are afraid, we cannot accede to the contention of the learned Additional Solicitor Gen- eral. ." The appellant herein, how- ever, rather emphatically voiced two speci c counts in support of the ap- peal. On the rst, it has been con- tended that by reason of the fact of the petitioner being a 'person' be- longing to the Armed Forces, ques- tion of usual formalities as regards the procedural aspect under NDPS Act would not arise, as such infrac-
461
tion of Section 42 of the NDPS Act cannot be said to be of any con- sequence : On the second count it has been the de nite contention that since Section 50 speci cally records "about to search any person" and since the contraband item has been in fact recovered from the private res- idence of the respondent herein, Sec- tion 50 cannot be said to be of any application. It is on this score the charge-sheet, though not included in the paper book, but upon leave of the Court, was produced and placed re- liance upon in support of the appeal. We also deem it t and convenient to note the charge-sheet hereinbelow :- "CHARGE SHEET The accused No 1059403N LD (Subs) Balam Singh of 18 Cavalry, attached to 64 Cavalry is charged with :- Army Act COMMIT- TING A CIVIL OFFENCE, THAT IS TO Section 69 SAY, POSSESS- ING OPIUM IN CONTRAVEN- TION OF SECTION 18 OF THE NARCOTIC DRUGS AND PSY- CHOTROPIC SUBSTANCES ACT, 1985
in that he, at Patiala on 28 Dec 91 was found in illegal possession of 4 kgs and 900 grams of opium.
Place : Patiala Sd/ x x x x Date : 12 Mar 92 (SD Singh) Colonel Com- manding O cer The 64 Cavalry To be tried by General Court Martial.
Station : Patiala Sd/ x x x x C/o 56 APO (Kamaljit Singh) Major General Dated : 14 Mar 92 General O cer Commanding 1 Armoured Di- vision" We shall have the occasion to deal with the speci c grievance as submitted in support of the re- spondent's contention later on in this
judgment, but for the present su ce it to record that the same stated to be relating to possession of opium in contravention of Section 18 of the NDPS Act since he was found in illegal possession of 4 Kgs and 900 grams of opium at Patiala on 28th December, 1991. The charge- sheet, however, is stated to be, as noticed above, issued under Section 69 of the Army Act by one Shri S.D. Singh, Colonel/Commanding O cer 64th Cavalry and it is this charge- sheet which has been directed by the General O cer Commanding, Major General Kamaljit Singh to be tried by the General Court Martial.
In the writ petition led before the High Court after the conclusion of the Court Martial proceedings and recording of the nding of guilt of the charge the petitioner/respondent herein speci cally raised a plea of the charge being vague. Before, however, we deal with the same let us get back to the two speci c counts noticed hereinbefore, namely, procedural as- pect and non-applicability of Section 50. Dealing with the second countrst, as regards non-applicability of Section 50 by reason of the factum of the same being made applicable to the person and not the place, we cannot but record our concurrence therewith. Section 50 sub-section
(1) by reason of the language used therein, does not and cannot have any manner of application in the facts presently under consideration.
Turning attention on to the pro- cedural aspect, be it noticed that Section 18 is an o ence which cannot but be ascribed to be civil in nature
| 462 | Union of India v. L.D. Balam Singh 2002 |
in terms of the provisions of Army Act if Section 18 is to be taken re- course to then and in that event the provisions of the statute come into play in its entirety rather than piece- meal.
The charge leveled against the re- spondent is not one of misdeeds or wrongful conduct in terms of the pro- visions of the Army Act but under the NDPS Act In the event, we clar- ify, a particular statute is taken re- course to, question of trial under an- other statute without taking recourse to the statutory safeguards would be void and the entire trial would stand vitiated unless, of course, there are existing speci c provisions therefor in the particular statute. Needless to record that there were two other civilian accused who were tried by the Court at Patiala but were acquit- ted of the o ence for non-compliance of the mandatory requirements of the NDPS Act.
Once the petitioner was put on trial for an o ence under the NDPS Act, the General Court Martial and the Army authorities cannot reason- ably be heard to state that though the petitioner would be tried for an o ence under Section 18 of the NDPS Act, yet the procedural safeguards as contained in the statutory provision would not be applicable to him being a member of the Armed Forces. The Act applies in its entirety irrespec- tive of the jurisdiction of the Gen- eral Court Martial or other Courts and since the Army authorities did
not take into consideration the proce- dural safeguards as is embodied un- der the Statute, the question of of- fering any credence to the submis- sions of Union of India in support of the appeal does not and cannot arise. There is no material on record to show that the authorities who con- ducted the search and seizure at the house of the respondent herein has in fact done so in due compliance with Section 42 of the statute which ad- mittedly stand fatal for the prosecu- tion as noticed above as a matter of fact, two of the civilians stand acquit- ted therefor.
Lastly, it has been contended by the respondent that the charge- sheet is not only vague, but devoid of all material particulars and does not even ful l the requirements of the Army Rules and the entire pro- ceedings in any event stand vitiated. We are, however, not expressing any opinion thereon, neither the same is required for the purposes of disposal of this matter. Su ce it to record, however, that the same has some substance.
Having considered the matter in the perspective as above, we do notnd any infraction of any law in the judgment of the High Court, neither the judgment can be faulted in any other way. This appeal, therefore, fails and is thus dismissed.
J.
(Umesh C. Banerjee) J.
(Y.K. Sabharwal) April 24, 2002.
Chapter 39
Union Of India v. Shivendra Bikaram Singh 2003
Union Of India (Uoi) And Ors. v. Shivendra Bikaram Singh on 24 April, 2003 Equivalent citations: AIR 2003 SC 2481, 2003 (2) ALD Cri 147, 2003 CriLJ 3028 Author: B Singh Bench: N S Hegde, B Singh
JUDGMENT
B.P. Singh, J.
1. In this appeal by special leave the Union of India has impugned the judgment and order of the High Court of Bombay at Goa dated May 2, 2001 in criminal writ petition no. 3 of 2001 whereby the High Court al- lowing the writ petition led under Article 226 of the Constitution of In- dia quashed the order of the Court Martial dated 4th September, 2000 which found the respondent guilty of the o ences under sections 497, 452 and 325 of the Indian Penal Code read with Section 77(2) of the Navy Act, 1957 (hereinafter referred to as 'the Act') and the order of the Chief of the Naval Sta dated 8th January, 2001 passed under Section 162 of the Act as also the order of the Chief
of the Naval Sta dated January 31, 2001 passed under Section 163 of the Act. After going through the evi- dence on record it also recorded anding that there was no legal evi- dence to support the order of con- viction and, there fore, gave to the respondent the bene t of doubt.
2. The facts of the case so far as they are relevant for the disposal of this appeal are :-
The respondent was an o cer of the Indian Navy and at the rele- vant time was serving as a Lieutenant posted in Goa. He was tried by a Court Martial for o ences under sec- tions 497, 506, 452 and 325 of the Indian Penal Code read with Section 77(2) of the Act. The Court Mari- tal found the respondent guilty of the o ences under sections 497, 452 and 325 of the Indian Penal Code read with Section 77(2) of the Act and or- dered the respondent to be kept in rigorous imprisonment for a term of 24 calendar months as a class-I pris- oner; to be dismissed with disgrace
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from the Naval service and to suf- fer consequential penalties involved. The Chief of the Naval Sta in ex- ercise of his power under Section 163 of the Act modi ed the sentence awarded to the respondent and or- dered that the respondent be kept in rigorous imprisonment as a class- l prisoner for a period of 12 calen- dar months and that he be dismissed from Naval service and shall su er the consequential penalties involved. The respondent submitted a petition on December 4, 2000 under Section 162 of the Act with a request to set aside the ndings and sentence awarded to him by the Court Mar- tial, but the same was rejected by the Chief of the Naval Sta by his order dated January 31, 2001.
3. The order of conviction and sentence passed by the Court Mar- tial as well as the orders of the Chief of the Naval Sta in exercise of pow- ers under sections 162 and 163 of the Act were challenged before the High Court by the respondent by ling a writ petition under Article 226 of the Constitution of India. The challenge to the aforesaid orders was on several grounds. It was submitted before the High Court that the members of the Court Martial had not been ap- pointed in conformity with Section 97 of the Act. Three of the mem- bers of the Court Martial were in- competent to act as impartial judges and the objection raised by the re- spondent in this regard was disposed of by the trial judge advocate, with- out reference to the members of the Court Martial, in gross violation of the mandatory provisions contained
in Section 102 of the Act. As a re- sult grave prejudice was caused to the respondent and there was seri- ous miscarriage of justice by such of-cers continuing as members of the Court Martial to try him. The order of Court Martial was also challenged on the ground of its failure to record reasons for the conclusions reached by it. It was also submitted that the o ences for which the respondent was tried were ordinarily o ences which could have been tried by an ordinary criminal court and, therefore, trial by Court Martial was not justi ed.
4. On the other hand the Union of India contended that the Court Martial had been properly consti- tuted and it had scrupulously ob- served provisions of the Act and recorded a nding of guilt against the respondent. It was not required to record reasons for its conclusions and its ndings were, therefore, not viti- ated for this reason. The objection raised by the respondent against the inclusion of three o cers as members of the Court Martial was duly con- sidered by the trial judge advocate who rejected the objection as regards two of the o cers, while the objec- tion against the third o cer was con- sidered by the members of the Court Martial and was ultimately rejected. The Trial Judge advocate exercised his power to reject such an objection in accordance with the provisions of Section 102 of the Act. No irregu- larity was committed by him. The proceedings before the Court Mar- tial were conducted scrupulously in accordance with law and no illegality had been committed which either re-
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sulted in serious prejudice to the re- spondent or in miscarriage of justice. The writ court, therefore, had no ju- risdiction to interfere with the im- pugned orders. It was also the case of the Union of India that the o ences for which the respondent was tried while serving as a naval o cer were triable by the Court Martial. The respondent had, therefore, not made out a case for interference with the order of the Court Martial as well as the orders passed under Sections 162 and 163 of the Act having regard to the parameters of judicial interfer- ence in matters of this nature.
5. The High Court rst consid- ered the scope of its writ jurisdic- tion in such matters and the param- eters of judicial interference. It con- sidered the judgments of this Court in Union of India and Ors. v. Him- mat Singh Chahar, ; Lt. Col. Prithi Pal Singh Bedi v. Union of India and Ors., and Union of India and Ors. v. Major A. Hussain, and held that though the Court Martial pro- ceedings are subject to judicial re- view by the High Court in exercise of its writ jurisdiction, the Court Mar- tial is not subject to the superin- tendence of the High Court under Article 227 of the Constitution. In exercise of its jurisdiction the High Court will not minutely examine the record of the Court Martial as if it was sitting in appeal. If the Court Martial has been properly convened, and there is no challenge to its com- position, and the proceedings are in accordance with the procedure pre- scribed, the High Court, or for that matter any court, must stay its hand.
Proceedings of a Court Martial are not to be compared with the pro- ceedings in a criminal court under the Code of Criminal Procedure since these proceedings remain to a sig- ni cant degree, a specialized part of overall mechanism by which military discipline is preserved. The Court Martial discharges judicial function and the procedure prescribed provide for a fair trial to the accused. There- fore, unless it is shown that prejudice has been caused or mandatory pro- visions have been violated, the High Court should not allow the challenge to validity of the conviction and sen- tence of the accused when evidence is su cient.
6. Bearing the above princi- ples in mind the High Court pro- ceeded to consider the other submis- sions advanced before it. It rejected the submission that non-recording of reasons in support of the conclu- sion reached by the Court Martial vitiated the order. Relying upon the judgment of this Court in S.N. Mukherjee v. Union of India, it was held that the Court Martial is not re- quired to record reasons for the con- clusion reached by it while record- ing a conviction. It also rejected the contention urged on behalf of the respondent that the Court Martial was not duly constituted inasmuch as the majority of members of the Court Martial did not belong to the executive branch of the Naval ser- vice as required by Section 97(10) of the Act. It accepted the submission urged on behalf of the Union that all the o cers who were members of the Court Martial were Executive O -
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cers which was supported by a Noti - cation issued in this regard. The sub- mission, that the constitution of the Court Martial was not constituted in conformity with the mandate of Sub- section (16) of Section 97 of the Act since it had to be constituted by the peers of the respondent, namely the Lieutenants, and not by the Com- manders, especially when the Pres- ident was Acting Captain, was also rejected. It was held that on a plain reading of Sub-sections (17) of Sec- tion 97, the mere fact that the mem- bers of the Court Martial were higher in rank to the petitioner, did not render the constitution of the Court Martial in rm.
7. The crucial question raised be- fore the High Court was with regard to the manner in which, and the per- son by whom, objec tion raised by the respondent with regard to the competency of two members of the Court Martial to act as impartial judges was rejected. It is not in dis- pute that the respondent objected to three members of the Court Martial on the ground of their competency to act as impartial judges. The mem- bers objected to were Captain Ra- jiv Girotra, President, and a Mem- ber Cdr. Suresh Mehta. The objec- tion of the respondent was rejected by the trial judge advocate without referring the objection to the mem- bers of the Court Martial for deci- sion. The objection as against, the third member, namely Cdr. Narayan was referred to all the members of the Court Martial excluding Cdr. Narayan, but the objection was ul- timately rejected. The High Court
held that on a plain reading of Sec- tion 102 of the Act the trial judge ad- vocate had no jurisdiction to dispose of an objection summarily which re- lated to the competency of a mem- ber of the Court Martial to act as an impartial member. In the interest of fairness the Act envisages that the objection with regard to any member of the Court Martial must be dealt with at the threshold. The objection to any member of the Court regard- ing his competency to act as an im- partial judge, must be referred to the members of the court and disposed of in accordance with the procedure laid down in that section. At that stage any other objection, which did not relate to the capacity of the member to act as an impartial Judge had to be rejected by the trial judge advo- cate, Other objections, if any, were to be dealt with under Section 103 of the Act. The language of Section 102 of the Act clearly postulates that when an objection is taken against any member on the ground of his in- competency to act as an impartial judge, the trial judge advocate must stay his hand and is obliged to re- fer the same to the members of the Court Martial for deciding the same in the manner provided for by Sec- tion 102 of the Act. This provision is in the nature of an opportunity be- ing o ered to the concerned member against whom such a ground is urged to recluse himself in view of the alle- gations made. The trial judge advo- cate had no jurisdiction to summarily reject such an objection without re- ferring the same to the members. It would amount to rewriting the said provision if it was to be held that
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the trial judge advocate must in therst instance examine the objection himself, as to whether the ground about the competency to act as im- partial judge is made out or not. The summary rejection of the objection with regard to Captain Rajiv Girotra and Cdr. Suresh Mehta was, there- fore, not in accordance with the pro- cedure prescribed by law, and there was a clear breach of the manda- tory provision relating to procedure of Court Martial, which undoubtedly caused gross miscarriage of justice to the respondent. Accordingly it held that the constitution of the Court Martial itself become susceptible to serious challenge on account of in- competency of Captain Rajiv Giro- tra (President) and Cdr. Suresh, Member to act as impartial judges. Since the Court Martial was not duly constituted in accordance with law, all subsequent steps taken by such a Court Martial were nullity and non- est in the eye of law. It further held that even the objection with regard to Cdr. Narayan, which was referred to the members of the Court Martial and was rejected, was not disposed of in accordance with law. The rea- son was that Captain Rajiv Girotra and Cdr. Suresh Mehta continued to participate as members of the Court Martial and participated in the pro- ceeding when the objection against Cdr. Narayan was referred to the Court Martial. Having regard to the procedure prescribed by Section 102 of the Act, the continued participa- tion of Captain Rajiv Girotra and Cdr. Suresh Mehta, without con- sideration of objection against them in accordance with law, vitiated the
proceeding of the Court Marital even in regard to the consideration of the objection against Cdr. Narayan.
8.The High Court, therefore, held that the writ petition must suc- ceed on the sole ground of non- compliance of mandatory provisions of law while considering the objec- tion regarding incompetency of Cap- tain Rajiv Girotra and Cdr. Suresh Mehta to act as impartial judges, relying on the observations of this Court in Ranjit Thakur v. Union of India and Ors., wherein it was held that participation of the ob- jected members in the Court Martial rendered the proceedings coram non judice.
9.The High Court observed that in view of its above nding it was un- necessary to examine the other con- tentions but since the parties had ad- dressed the court at length on all points, it proceeded to deal with other submissions as well.
10.It rejected the submission urged on behalf of the respondent that the Court Martial had no juris- diction to try the respondent for the o ences with which he was charged. It held that the respondent being a person subject to Naval Law, even though the o ences of which he was charged were civil o ences, he could be tried and punished under the pro- visions of the Navy Act regardless of where the o ences were committed. Reference to Section 78(2) of the Act was also of no assistance to the re- spondent because the o ence under Section 497 of the Indian Penal Code was quite distinct from an o ence of rape under Section 376 of the Indian
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Penal Code, and Section 78(2) of the Act was con ned in its application to the o ences of murder, culpable homicide not amounting to murder and rape.
11.The High Court was then persuaded to consider the evidence on record for nding out whether there was any legal evidence to con- vict the respondent of the o ences with which he was charged. Con- sidering the o ence under Section
497of the Indian Penal Code the High Court found that the prosecu- tion had miserably failed to estab- lish the factum of marriage and its legality and, therefore, the rst in- gredient of the o ence was not estab- lished. Similarly having scrutinized the evidence on record for the lim- ited purpose whether there was any legal evidence to sustain the convic- tion, the High Court held that hav- ing regard to the totality of circum- stances it would be wholly unsafe to record the nding of guilt against the respondent for the o ences under sec- tions 452 and 355 of the Indian Pe- nal Code. The High Court observed that it had not re-appreciated the ev- idence as such, or made any attempt to nd out su ciency or adequacy of evidence, but on wading through the evidence it found that there was no legal evidence to support the charges and, therefore, the respondent should be given the bene t of doubt. With these ndings, the High Court al- lowed the writ petition and quashed the impugned orders.
12.Shri Anup G. Chaudhary, se- nior counsel appearing on behalf of the Union of India submitted that
on a fair reading of Section 102 of the Act it must be held that the trial judge advocate has power to reject summarily an objection raised by the accused against inclusion of any member in the Court Martial even if it was related to his competency to act as an impartial judge. He em- phasized the fact that under Section 114 of the Act the trial judge advo- cate exercises powers which are judi- cial in nature and, therefore, Section 102 must be understood in the back- ground of the nature of judicial func- tions performed by the trial judge ad- vocate. It was, therefore, open to the trial judge advocate to consider the objection and if he was of the opin- ion that the ground challenging the competency of the concerned o cer to act as an impartial judge did not have merit, he could reject the same summarily. Only those objections, which raised grounds worth consid- ering had to be referred to the Court Martial for its decision. He, there- fore, submitted that the High Court had wrongly relied on the observa- tions made by this Court in Ranjit Thakur's case (supra). According to him the principles laid down therein were wholly inapplicable to the case in hand, because in that case this Court had considered the provisions of the Army Act, particularly Sec- tion 130 thereof which is quite dif- ferent from Section 102 of the Act. He, therefore, supported the ruling of the trial judge advocate rejecting the objection of the respondent to two members of the Court Martial on the ground of their not being competent to act as impartial judges. In the al- ternative it is submitted that in any
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case there was su cient evidence on record to support the conviction, and the High Court was, therefore, not justi ed in law in appreciating the evidence on record and reaching the conclusion that the respondent was entitled to bene t of doubt. It is fur- ther contended that the respondent having submitted himself to trial and the defect if any, not being of such a nature as to vitiate the trial, it must be held that the respondent had waived his objection against mem- bership of two of the o cers in the Court Martial. According to him. if the respondent was aggrieved by the ruling of the trial judge advocate, he could have challenged his ruling byling a writ petition. He having not done so, it amount to a waiver and, therefore, he could not be permitted to urge that ground in support of the writ petition.
13. Shri Arun B. Saharya, senior advocate appearing on behalf of the respondent submitted that the trial judge advocate was clearly in error in rejecting the objection raised by the respondent under Section 102 of the Act having regard to the clear lan- guage of the section. Any objection relating to a member of the Court Martial on a ground which a ected his competency to act as an impartial judge had to be decided by the mem- bers of the Court Martial and not by the trial judge advocate. He took us to the scheme of the Act in support of his submission. He further submitted that though the trial judge advocate performs functions which are judicial in nature, his role becomes relevant only after the trial commences, as is
evident from Section 114 of the Act, and the trial does not commence till such time as the objection under Sec- tion 102 are disposed of and the Pres- ident and every Member of the Court Martial is administered the oath or a rmation as mandated by Section 104 of the Act and the plea of the accused on the charges is recorded under Section 105. That stage was never reached in this case because the objections were not disposed of in accordance with the procedure laid down under Section 102 of the Act. Moreover the provisions of the Act further clarify that the function of the trial judge advocate is only to advice the Court Martial and not to decide such issues.
14. On the question of waiver he submitted that it implies a conscious giving up of a right. In the facts of this case it is apparent that the re- spondent never waived his right to object to the membership of three of the o cers in the Court Martial. He initially urged this submission before the High Court when he rst led the writ petition, which was dismissed as premature since he had not availed of the remedies under Sections 162 and 163 of the Act. Thereafter, he also urged this objection in his pe- tition led under Section 162 of the Act and nally the point was specif- ically urged before the High Court in the instant writ petition out of which the present appeal arises. He submitted that the respondent was not expected to challenge every rul- ing given by the trial judge advocate, and it was only appropriate that he permitted the trial to continue and
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then challenged the verdict of the Court Martial on the ground of glar- ing illegalities and breach of manda- tory provisions of law which not only caused prejudice to the respondent, but also resulted in serious miscar- riage of justice. He further urged be- fore us that even though it is not per- missible to the High Court to exer- cise its writ jurisdiction to appreciate the evidence on record in the same manner as the High Court may do in a criminal appeal before it exer- cising appellate jurisdiction, the ver- dict of the Court Martial can cer- tainly be challenged in writ jurisdic- tion if the High Court is satis ed that there is no legal evidence what- soever to support the charges lev- eled against the accused. He empha- sized that in doing so the High Court was not expected to scrutinize the evidence with a view to nding out whether there was su cient evidence to record the conviction, but only tond out if there was any legally ad- missible evidence at all, which could support the nding recorded by the Court Martial. Therefore, not the su ciency, but the existence of rel- evant material, was what the High Court was entitled to look for in a case of this nature, and that is precisely what the High Court has done in this case. He, therefore, supported the nding recorded by the High Court that there was no evidence whatsoever to support the charges leveled against the respon- dent and, therefore, he was entitled to the bene t of doubt.
15. In reply Shri Anup G. Chaud- hary submitted that even if this
Court comes to the conclusion that there had been violation of manda- tory provisions of Section 102 of the Act and that the violation resulted in prejudice to the respondent and seri- ous miscarriage of justice, this Court should direct the trial to commence from the stage of Section 101 of the Act. This was, of course, subject to his contention that, in the facts' and circumstances of this case, the nd- ing recorded by the Court Martial should be a rmed.
16.It would be bene cial to no- tice a few provisions of the Navy Act, 1957, which would disclose the scheme of the Act and the procedure to be followed in a Court Martial pro- ceedings.
17.Section 93 provides that an o ence triable under the Act may be tried and punished by court mar- tial. Section 97 provides that court marital shall be constituted and con- vened, subject to the provisions of the sub-sections to Section 97, by the President, the Chief of the Naval Sta , or any o cer empowered in this behalf by commission from the Chief of the Naval Sta . Sub-section
(6)thereof provides that a court mar- tial shall consist of not less than ve and not more than nine o cers. Sub- sections (7) to (22) lay down the quali cations of the o cers entitled to sit as a member of the court mar- tial and other details relating to the constitution of a court martial. Sec- tion 99 lays down that every court martial shall be attended by a person referred to as the trial judge advocate who shall be either a judge advocate in the department of the judge advo-
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cate general of the Navy or any t person appointed by the convening o cer. Sub-section (2) provides that the trial judge advocate shall admin- ister oath to every witness at the trial and shall perform such other duties as are provided in the Act and as may be prescribed. Sections 101 to 103 are of considerable signi cance in this case and they are, therefore, re- produced for sake of convenience :-
"101. Commencement of pro- ceedings. (1) As soon as the Court has been assembled the accused shall be brought before it and the prose- cutor, the person or persons, if any defending the accused and the audi- ence admitted.
(2)Except where the accused de- fends himself, he may be defended by such person or persons as may be prescribed.
(3)The trial judge advocate shall read out the warrant for assembling the court and the names of o cers who are exempted from attending under Sub-section (20) of Section 97 together with the reasons for such ex- emption.
(4)The trial judge advocate shall read out the names of the o cers composing the court and shall ask the prosecutor whether he objects to any of them.
(5)If the prosecutor shall have made no objection or after any objec- tion made by the prosecutor has been disposed of, the trial judge advocate shall ask the accused if he objects to any member of the court.
102. Objections to members. - The following provisions shall apply
to the disposal of objections raised by the prosecutor as well as the accused :-
(a)any member may be objected to on a ground which a ects his com- petency to act as an impartial judge; and the trial judge advocate may re- ject summarily without reference to the members of the court any objec- tion not made on such grounds;
(b)objections to members shall be decided separately, those to the of-cer lowest in rank being taken rst: provided that if the objection is to the president, such objection shall be decided rst and all the other mem- bers whether objected to or not shall vote as to the disposal of the objec- tion;
(c)on an objection being allowed by one-half or more of the o cers entitled to decide the objection, the member objected to shall at once re- tire and his place shall be lled up before an objection against another member is taken up;
(d)should the president be ob- jected to and the objection be al- lowed, the court shall adjourn until
anew president has been appointed by the convening authority or by the o cer empowered in this behalf by the convening authority; and
(e)should a member be objected to on the ground of being summoned as a witness, and should it be found that the objection has been made in good faith and that the o cer is to give evidence as to facts and not merely as to character, the objection shall-be allowed.
103. Further objections. -(1)
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The trial judge advocate shall then ask the accused whether he has any further objection to make respecting the constitution of the court; and should the accused raise any such ob- jection, it shall then be decided by the court, which decision shall be - nal and the constitution of the court martial shall not be afterwards im- peached and it shall be deemed in all respects to have been duly con- stituted.
(2) If the accused should have no further objection to make to the con- stitution of the court or if any objec- tion is disallowed, the members and the trial judge advocate shall then make an oath or a rmation in the form set out in Section 104.
18. These provisions lay down the manner in which the proceedings commence before the Court Martial and the objections, which are to be considered even before the trial be- gins. These provisions, therefore, ap- ply at the pre-trial stage. After the provisions of Sections 101 to 103 are complied with, the President and ev- ery member of the Court Martial is required to be administered an oath or a rmation in the form and man- ner prescribed by Section 104 of the Act. Thereafter under Section 105 when the court is ready to commence the trial, the trial judge advocate is required to read out the charges and ask the accused whether he pleads guilty or not guilty. If he pleads guilty and the court accepts the plea, it shall be recorded as a nding of the court and the court shall proceed to take steps to pass sentence unless there are other charges to be tried
in which event the sentence shall be deferred until after the ndings on such charges are given. If the ac- cused pleads not guilty or refuses to, or does not, plead or if he claims to be tried, the court shall proceed to try the accused. Section 113 provides that when the case for the defence and the prosecutor's reply, if any, are concluded, the trial judge advocate shall proceed to sum up in open court the evidence for the prosecution and the defence and lay down the law by which the court is to be guided. Sec- tion 114 lays down the duties of the trial judge advocate at such trial. It is the duty of a trial judge advocate to decide at the trial ail questions of law arising in the course of the trial, and specially all questions as to the relevancy of facts which it is proposed to prove and the admissi- bility of evidence or the propriety of the questions asked by or on behalf of the parties; and in his discretion to prevent the production of inadmissi- ble evidence whether it is or is not objected to by the parties. Under Section 115 it is the duty of the court to decide which view of the facts is true and then arrive at the nding, which under such view ought to be arrived at. Under Section 116 after the trial judge advocate has nished his summing up, the court is to be cleared to consider the nding. The trial judge advocate shall not sit with the court when the court is consider- ing the nding and no person shall speak to or hold any communication with the court while the court is con- sidering the nding. Thereafter un- der Section 117 the court is required to reassemble and the President shall
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inform the trial judge advocate in open court what is the nding of the court as ascertained in accordance with Section 124.
19.It will thus appear that the steps taken before the stage is reached under Section 104 of the Act for administering oath or a rmation to the President and the members of the Court Martial, are taken at the pre-trial stage. Though the pro- ceedings commence before the Court Martial for compliance of the require- ments of Sections 101, 102 and 103 of the Act, the trial commences only af- ter the President and the members of the Court Martial are administered oath as required by Section 104 of the Act and the accused is produced be- fore the Court Martial. Sub-section
(3)of Section 101 directs the trial judge advocate to read out the war- rant for assembling the court and the names of o cers who are exempted from attending together with the rea- sons for such exemption. After the warrant is read out, the trial judge is required to read out the names of the o cers composing the court. It shall then ask the prosecutor whether he objects to any of them. If any objec- tion is made by the prosecutor the same has to be disposed of. How- ever, if the prosecutor has no objec- tion, the trial judge advocate shall ask the accused if he objects to any member of the court.
20.It would thus appear that be- fore the trial commences, objections to membership of the court have to be considered with a view to ensure fairness of trial and to avoid charge of bias against any of the members
of the Court Martial. Section 102 lays down the provisions, which shall apply to the disposal of objections raised by the prosecutor as well as the accused. Clause (a) provides that any member may be objected on a ground, which a ects his competency to act as an impartial judge, and the trial judge advocate may reject sum- marily without reference to the mem- bers of the court any objection not made on such ground. Clauses (b) to
(e) lay down the procedure to be fol- lowed by the members of the Court Martial while considering such objec- tions.
21. Section 103 refers to fur- ther objections. Clause (a) of Sec- tion 103 begins with the words "the trial judge advocate shall then ask the accused whether he has any fur- ther objections to make respecting the constitution of the court". If the accused raises any such objec- tion, that is required to be decided by the court, which decision shall benal and the constitution of the court martial shall not be afterwards im- peached, and it shall be deemed in all respects to have been duly con- stituted. In case the accused has no further objection to make or the ob- jection made is disallowed, the mem- bers and the trial judge advocate shall then make an oath or a rma- tion in the form set out in Section 104. From the scheme of these sec- tions it is quite apparent that be- fore the trial commences, all objec- tions to the constitution of the Court Martial must be considered and de- cided. Section 102 is con ned to an objection on the ground, which af-
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| fects the competency of the President | down in Clauses (b) to (e) of Section | ||||
| or a member of the Court Martial to | 102, according to the appellant it is | ||||
| act as an impartial judge. As would | open to the trial judge advocate to | ||||
| be clear from a reading of this sec- | reject summarily even an objection | ||||
| tion as a whole it does not provide | to a member on the ground which | ||||
| for the consideration of any other ob- | a ects his competency to act as an | ||||
| jection at that stage. | The section | impartial judge. It is contended that | |||
| that follows i.e. Section 103 refers | even if the ground urged, though it | ||||
| to any further objection respecting | a ects the competency of a member | ||||
| the constitution of the Court Mar- | to act as an impartial judge, the trial | ||||
| tial. It is, therefore, open to the ac- | judge advocate may reject the same | ||||
| cused to raise further objections on | if he nds no merit in it. | ||||
| other grounds respecting the consti- | 23. We are inclined to accept the | ||||
| tution of the Court Martial, and for | |||||
| contention put forth by the respon- | |||||
| this purpose he may urge the ground | dent. Clause (a) of Section 102 is in | ||||
| of breach of any or the provisions of | two parts. The rst part refers to any | ||||
| the subsections of Section 97 of the | objection against a member on the | ||||
| Act, or any other objection which | ground, which a ects his competency | ||||
| he has respecting the constitution of | to act as an impartial judge. | The | |||
| the Court Martial. These objections | second part deals with the authority | ||||
| have to be decided under Section 103 | of the trial judge advocate to reject | ||||
| by the Court Martial, which must | summarily without reference to the | ||||
| mean all the members of the Court | members of the court "any objection | ||||
| Martial, | who are entitled to sit as | not made on such grounds". It was | |||
| a Court after the disposal of objec- | not disputed before us that if there | ||||
| tions, if any, under Section 102 of the | was a valid ground urged a ecting | ||||
| Act. | the competency of a member to act | ||||
22.We then come back to Section as an impartial judge, the same has
102of the Act, particularly Clause to be decided in accordance with the
| (a) | thereof. | The | real controversy | procedure laid down under Clauses | ||
| in | the instant case is the nature | (b), (c), (d) and (e) of sec tion | ||||
| of | authority | exercised by the trial | 102. The rst part of Clause (a) | |||
| judge advocate to reject summarily, | ||||||
| enables the prosecutor and the ac- | ||||||
| without reference to the members of | cused to raise an objection of the | |||||
| the Court Martial any objection not | nature speci ed. | The second part | ||||
| made on a ground, which a ects the | of Clause (a) only empowers the | |||||
| competency of a member to act as | trial judge advocate to reject sum- | |||||
| an | impartial | judge. | While the re- | marily any objection not made on | ||
| spondent contends that all objections | such grounds. To us it appears that | |||||
| made on a ground which a ects the | the clear intention of the legislature | |||||
| competency of a member to act as an | was that at the stage of Section 102 | |||||
| impartial judge have to be decided in | only the objections relating to mem- | |||||
| accordance with the procedure laid | bership of the court martial on a | |||||
475
ground a ecting the competency of any member to act as a court martial are required to be considered. Ev- ery other objection regarding consti- tution of the court martial on other grounds has to be considered later, and that is what is provided by Sec- tion 103 of the Act. All grounds other than the ground which a ects the competency of a member to act as an impartial judge, is required to be decided by the court, and no dis- cretion is left with the trial judge ad- vocate. Reading the two provisions together the scheme of the Act ap- pears to be that in the rst instance the court has to consider whether any of its member is disentitled to sit as a member of the court martial on the ground that he is not com- petent to act as an impartial judge. No other objection is to be enter- tained at this stage. Therefore, when an objection to any member is raised on a ground other than the ground, which a ects his competency to act as an impartial judge, the trial judge advocate is authorized to reject the same summarily without reference to the members of the court martial. But if any member is objected to on the ground, which a ects his compe- tency to act as an impartial judge, the trial judge advocate has no dis- cretion in the matter and he must place the matter before the court, which must consider the objection in accordance with the procedure laid down in Clauses (b) to (e) of Sec- tion 102. Whether there is any merit in the objection, is not a matter to be considered by the trial judge ad- vocate, since he is not vested with the jurisdiction to decide such objec-
tions. That power has to be exer- cised by the court itself. The only authority that is given to the trial judge advocate under Clause (a) of Section 102 is to reject at that stage all other objections without reference to the members of the court martial which are not on a ground which af- fects the competency of a member to act as an impartial judge. This is because such other objections may be considered later after the constitu- tion of the court is rst nalized after disposal of objections to membership of the court martial on the ground, which a ects the competency of any member to act as an impartial judge. The scheme of the Act, therefore, is to provide for two stages at which the objections to the constitution of the court martial have to be consid- ered. Section 102 clari es that at that stage only those objections have to be considered which proceed on a ground, which a ects the compe- tency of any member to act as an im- partial judge. All other objections to the constitution of the court have to be considered after the objections on the grounds speci ed in Clause (a) of Section 102 of the Act are disposed of. Those other objections have to be disposed of in the manner laid down under Section 103 of the Act.
24. The High Court has taken the same view as we have taken of the provisions of Sections 102 and 103 of the Act. The trial judge ad- vocate, in the instant case, rejected summarily the objection taken by the respondent to the membership of two of the o cers, while the objection against the third o cer was rejected
| 476 | Union Of India v. Shivendra Bikaram Singh 2003 |
by the court itself. Having perused the minutes of the trial judge advo- cate it cannot be said that the ground on which the objection was taken was not one, which a ected the con- cerned member to act as an impartial judge. The objection as against the president of the court, namely Cap- tain Rajiv Girotra was that he was a course-mate of Cdr. Baijal, with whose wife the respondent was al- leged to have had adulterous connec- tions. Similar objection was taken to the membership of Cdr. Suresh Mehta that he was the course-mate of the complainant. It would thus appear that the respondent objected to their membership on a ground, which a ected their competency to act as an impartial judge. The ques- tion whether the objection was sus- tainable or not, was a question which had to be decided by the members of the Court Martial in accordance with the provisions of Clauses (b) to
(e) of Section 102. Instead of fol- lowing the procedure laid down by the aforesaid subsections, the trial judge advocate usurped the jurisdic- tion of the court and rejected sum- marily the objection of the respon- dent after going through the mate- rial on record, holding that the objec- tions were not sustainable. In doing so he clearly over stepped the limita- tions of his jurisdiction and decided a matter which the court alone, and not he, was empowered to decide. The question whether the ground is substantiated by material brought on record is a question, which relates to the merit of the objection. The re- spondent may be able to substantiate the ground urged by him or he may
fail to do so, In that event his objec- tion may be rejected by the members of the court martial but that is not to say that the ground on which ob- jection was taken did not a ect the competency of a member to act as an impartial judge. The jurisdiction of the trial judge advocate under Clause
(a) of Section 102 is limited to the extent of nding out whether the ob- jection is on the ground speci ed in the rst part of Clause (a). If it was such a ground, then regardless of its merit, the objection had to be de- cided by the court martial in accor- dance with the procedure laid down in that section. If it was not such a ground as speci ed in the rst part of Section 102, it was then his dis- cretion to summarily reject the same. The words of the section are "may re- ject summarily" which is indicative of a discretion vested in him. That is because if the objection is an ob- jection respecting the constitution of the court, but not on the ground speci ed in Clause (a) of Section 102, then he may rather than dismissing the objection reserve it for consider- ation after the objections under Sec- tions 102 are disposed of and the ob- jections under Sections 103 are taken up for consideration.
25. We are, therefore, in agree- ment with the High Court that the trial judge advocate exceeded his ju- risdiction under Clause (a) of Sec- tion 102 of the Act and because of his erroneous exercise of jurisdiction the objections relating to the con- stitution of the Court Martial re- mained undecided by the competent authority, and yet the members of
477
the Court Martial proceeded with the trial and found the respondent guilty. This was done in breach of a mandatory provision of Section 102 of the Act. Noncompliance of the mandatory provision of Section 102 is an in rmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. It was so held by the Court in Ranjit Thakur's case (supra) where the Court consid- ering a similar provision, though un- der the Army Act, observed :-
"The procedural safeguards con- templated in the Act must be con- sidered in the context of and corre- sponding to the plenitude of the sum- mary jurisdiction of the Court Mar- tial and the severity of the conse- quences that visit the person sub- ject to that jurisdiction. The proce- dural safeguards should commensu- rate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safe- guards envisaged by the statute. The oft quoted words of Frankfurter, J. in Vitarelli v. Seaton, 359 US 535 are again worth recalling :
".....If dismissal from employ- ment is based on a de ned procedure, even though generous beyond the re- quirements that bind such agency, that procedure must be scrupulously observed....... This judicially evolved rule of administrative law is nowrmly established and, if I may add, rightly so. He that takes the pro- cedural sword shall perish with that sword."
What emerges, therefore, is that
in the present case there is a noncom- pliance with the mandate of Section 130 with the attention consequence that the proceedings of the Summary Court Martial are rendered in rm in law."
26. This Court referred to sim- ilar observations made in Lt. Col. Prithi Pal Singh Bedi v. Union of India (supra) where this Court ob- served :-
".....Whenever an objection is taken it has to be recorded. I n or- der to ensure that anyone objected to does not participate in disposing of the objection.....
......This is a mandatory require- ment because the o cer objected to cannot participate in the decision disposing of the objection.
.....The provision conferring a right on the accused to object to a member of the Court Martial sit- ting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members compos- ing the Court - Martial. This is pre- eminently a rational provision which goes a long way to ensure a fair trial."
27. On the question of bias, the Court in Ranjit Thakur's case (supra) observed thus :-
"The second limb of the con- tention is as to the e ect of the al- leged bias on the part of respondent 4. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and whether respondent 4 was likely to be disposed to decide the
| 478 | Union Of India v. Shivendra Bikaram Singh 2003 |
matter only in a particular way.
It is the essence of a judgment that it is made after due observance of the judicial process; that the court or Tribunal passing it observes, at least the minimal requirements of natural justice is composed of impar- tial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial coram non judice.'. (See Vassiliades
v.Vassiliades, AIR 1945 PC 38)."
28.In Union of India and Ors.
v.Major A. Hussain (supra), while dealing with the parameters of ju- dicial review and interference with Court Martial proceedings this Court observed :-
"23. Though court martial pro- ceedings are subject to judicial re- view by the High Court under Arti- cle 226 of the Constitution, the Court Martial is not subject to the super- intendence of the High Court under Article 227 of the Constitution. If a Court Martial has been properly convened and there is no challenge to its composition and the proceed- ings are in accordance with the pro- cedure prescribed, the High Court or for that matter any court must stay its hands."
(emphasis supplied)
29. To the same e ect are the ob- servations in Union of India v. Him- mat Singh Chahar (supra). It was said, while considering provisions of the Navy Act, 1957 :-
"4. Since the entire procedure is provided in the Act itself and the Act also provides for a further considera-
tion by the Chief of the Naval Sta and then by the Union government then ordinarily there should be a - nality to the ndings arrived at by the competent authority in the Court Martial proceedings. It is of course true and notwithstanding the nal- ity attached to the orders of the com- petent authority in the court martial proceedings the High Court is enti- tled to exercise its power of judicial review by invoking jurisdiction un- der Article 226 but that would be for a limited purpose of nding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for nding out that whether there has been violation of the principles of natural justice which vitiates the en- tire proceedings or that the author- ity exercising the jurisdiction had not been vested with jurisdiction under the Act."
30. Learned counsel for the ap- pellant submitted that except one, the aforesaid decisions were rendered while considering the provisions of Section 130 of the Army Act, which is di erently worded, it may be that Section 130 of the Army Act is dif- ferently worded, but that will not make any di erence to the applica- tion of the principles laid down by this Court in the aforesaid decisions Section 130 of the Army Act as well as Section 102 of the Navy Act re- late to the objection to the inclu- sion of any o cer as member of the Court Martial. It may be that the procedure prescribed is not identical, though similar, but if the provision
479
is mandatory in nature and there is non compliance with that provision, the consequences will be the same. We, therefore, hold that noncompli- ance with Section 102 of the Navy Act has vitiated the proceedings be- fore the Court Martial.
31.This takes us to the sec- ond submission urged on behalf of the appellant that the respondent has waived his right to raise such objection since he did not challenge the ruling of the trial judge advo- cate by ling a writ petition before the High Court. We nd no merit in this submission because it is not expected of an accused to challenge every ruling in the course of a trial as that would unnecessarily protract the trial, something, which is not en- couraged by the courts. He raised that objection in his petition under Section 162 of the Act and thereafter raised the same objection in the in- stant writ petition from which this appeal arises. It cannot, therefore, be said that he waived his right to raise this objection merely because he did not challenge the ruling of the trial judge advocate immediately af- ter it was given at an intermediate stage of the proceedings.
32.We, however, nd consider- able force in the submission urged on behalf of the appellant that hav- ing found that there was a breach of mandatory provision of the Act which vitiated the proceedings before the Court Martial, the High Court was not justi ed in considering the evidence on record even for the lim- ited purpose of discovering whether there was any legal evidence to sus-
tain the charges. Counsel for the re- spondent on the other hand submit- ted that it was within the power of judicial review of the High Court to quash an order of conviction recorded by the Court Martial if it came to the conclusion that the nding of the Court Martial was perverse as there was no legal evidence whatsoever to support the conviction. In our view, in the facts and circumstances of this case this question had become aca- demic once it was found that the proceedings before the Court Martial were vitiated on account of noncom- pliance with the provisions of Section 102 of the Act. If the very constitu- tion of the Court Martial was not in accordance with law, then any pro- ceedings taken before such an im- proper Court Martial was a nullity as far as the trial is concerned. As a consequence, the evidence recorded before such a Court Martial had no sanctity in law and, therefore, did not deserve any further considera- tion.
33.We, therefore, set aside the nding recorded by the High Court that there was no legal ev- idence whatsoever to support the charges leveled against the respon- dent and that he was entitled to ben- e t of doubt. The ndings of the High Court on other questions are a rmed. The order of conviction passed by the Court Martial as well as the orders made under Sections
162and 163 of the Navy Act have been rightly quashed by the High Court.
34.In the facts and circum- stances of the case we leave it to
| 480 | Union Of India v. Shivendra Bikaram Singh 2003 |
the authorities concerned to consider whether or not to continue the Court Martial proceedings from the stage of Section 102 of the Act. We make no direction in that regard. In case it is decided to continue the proceeding, the objections raised by the respon- dents shall be placed for considera- tion and decision by the members of the Court Martial in accordance with the procedure laid down in Clauses
(b) to (e) of Section 102 of the Act. This is on the assumption that all the members of the Court Martial are available to act as such. In the event of non-availability of any or all the members of Court Martial ear- lier constituted, it will be open to the competent authority to consti- tute a fresh Court Martial. In that event the question whether the objec- tions survive or not may have to be reconsidered depending on whether the president or the members ob- jected to continue to serve on the Court Martial. Thereafter further proceedings shall be taken in accor- dance with law. The Court Martial shall not be in uenced by any ob- servation made by the High Court in its impugned judgment. We have scrupulously avoided reference to the facts of the case and the merit of
the charges against the respondent. However, nothing said in this judg- ment shall be construed as expres- sion of opinion on the merit of the charges, which shall be considered in the light of the evidence, which may be produced by the prosecution be- fore the Court Martial or the recon- stituted Court Martial, as the case may be, if the competent authority so decides.
35.Before parting with this judg- ment we may notice the submission urged on behalf of the respondent that the retrial of the respondent, even if ordered, will be barred by limitation in view of the provision of Section 79 of the Act. Accord- ing to learned counsel for the respon- dent the trial commences when the charges are read out to the accused and his plea is recorded in accordance with Section 105 of the Act. We do not wish to express any opinion on this question. However, the respon- dent will be at liberty to raise this question in appropriate proceedings before the appropriate forum, if oc- casion arises.
36.This appeal is accordingly dismissed but subject to the direc- tion aforesaid.
Chapter 40
Jasbir Kaur v. Union Of India 2003
| Jasbir | Kaur & | Ors | v. | Union | Special | Leave | Petition | (Civil) | ||
| Of India | & | Ors | on | 13 | Novem- | Nos.12904-12909 of 2002, Special | ||||
| ber, 2003 Author: Srikrishna Bench: | Leave Petition (Civil) No.14275 of | |||||||||
| K.G.Balakrishnan, B.N.Srikrishna | 2002 and Special Leave Petition | |||||||||
| CASE NO.: | (Civil) Nos.14487 of 2002, | |||||||||
| Transfer Case (civil) 38 of 2002 | SRIKRISHNA, J. | |||||||||
| PETITIONER: | The only issue thrown up by this | |||||||||
| group of ca ses is : 'What should be | ||||||||||
| Jasbir Kaur & Ors. | ||||||||||
| the uniform to be worn by members | ||||||||||
| RESPONDENT: | ||||||||||
| of the Military Nursing Services?' | ||||||||||
| Union of India & Ors. | Persistence of parties and ingenuity | |||||||||
| DATE | OF | JUDGMENT: | of counsel have succeeded in giving | |||||||
| 13/11/2003 | a constitutional moment to an issue | |||||||||
| which is but an one of administration | ||||||||||
| BENCH: | ||||||||||
| of an auxiliary branch of the Armed | ||||||||||
| K.G.Balakrishnan & B.N.Srikrishna | Services. | |||||||||
| JUDGMENT: | A force called Indian Military | |||||||||
| J U D G M E N T | Nursing Service was constituted as | |||||||||
| With | part of the armed forces of the Union | |||||||||
| of India by Ordinance No.XXX of | ||||||||||
| Transfer Case (C) Nos.39-42 of | ||||||||||
| 1943 titled The Indian Military Nurs- | ||||||||||
| 2002 | ing Service Ordinance, 1943, which | |||||||||
| Transfer Case (C) No.46 of 2002, | was brought into force on 15th | |||||||||
| Transfer | Case(C) Nos.54-56 of | September, | 1943. | Section 3 of the | ||||||
| 2002, | said Ordinance declares that there | |||||||||
| Transfer Case(C) No.70 of 2002, | shall be raised and maintained in the | |||||||||
| manner provided | in the Ordinance | |||||||||
| 482 | Jasbir Kaur v. Union Of India 2003 |
"as part of the armed forces of the Union and for service with the Indian Military forces" an auxiliary force which shall be designated as Indian Military Nursing Service. The Or- dinance prescribes the conditions of eligibility for appointment in section 6. Section 9 of the Ordinance pro- vides that the provisions of the In- dian Army Act, 1911 shall, to such extent and subject to such adapta- tions and modi cations as may be prescribed, apply to members of the Indian Military Nursing Service as they apply to Indian commissioned o cers, unless they are clearly inap- plicable to women.
Section 10 of the said Ordinance empowers the Central Government to make Rules to carry out the pur- poses of the ordinance and section 11 vests in The Chief of the Army Sta the power to make regulations providing for all matters to be laid down and generally for all detail con- nected with the organisation, pay allowances, duties, discipline, train- ing, clothing, equipment and leave of members of the Indian Military Nursing Service.
In exercise of the powers vested in him The Chief of Army Sta pre- scribed the appropriate uniform to be worn by the members of the In- dian Military Nursing Service. The prescribed uniforms were changed from time to time taking into account the advice of special committees ap- pointed by The Chief of the Army Sta to periodically review the issue.
Despite the fact that the Indian Military Nursing Service (hereinafter called as 'IMNS') has been made an
auxiliary force, the members of this service are not subject to all the pro- visions of the Army Act and have been treated separately while being part of the Indian Army.
By an order dated 25.1.2000 the Additional Director General of Mili- tary Nursing Service issued a Dress Code for members of IMNS prescrib- ing the Dress Code for di erent pur- poses. We are not concerned with the details of the prescribed uniforms for that in no way a ects the legal issue sought to be canvassed before the Court. Nor are we really con- cerned with the reasons which im- pelled the appropriate authority to prescribe any particular dress as the uniform to be worn by the members of the IMNS. However, it appears that a number of problems were faced in the hospital environment in the wake of the dress code issued by the letter dated 25.1.2000. These prob- lems were brought to the notice of Medical Services Advisory Commit- tee. With an intent to solve these problems, which pertained to patient care related issues, a decision was taken to modify the dress code by an order issued on 11.9.2001. The said order was challenged by members of IMNS by di erent writ petitions be- fore several High Courts, inter alia, on grounds of violation of the Funda- mental Rights under Articles 14 and 21 of the Constitution. The Bom- bay, Allahabad and Karnataka High Courts dismissed such writ petitions on the ground that no issue pertain- ing to Fundamental Rights arose and observing that the issue of prescrib- ing uniform for the IMNS was a mat-
483
ter well within the competence of the military authorities. Some other High Courts in the meanwhile ad- mitted similar writ petitions and is- sued interim orders. Special leave pe- titions were moved against the de- cisions of the Allahabad, Bombay and Karnataka High Courts in this Court. To avoid inconsistency in ju- dicial decisions, this Court admitted the special leave petitions and also transferred all the pending writ pe- titions to itself by an order made on 28.1.2002 in Transfer Petition (C) Nos.851-857 of 2001, which reads as follows:
"We have heard learned counsel for the parties. The writ petitions mentioned in prayer
column of these petitions, in our opinion, involves substantial ques- tion of law. Therefore, it is just nec- essary this issue should be decided by a single court. Taking into consider- ation the importance of the issue, we think it appropriate that these peti- tions should stand transferred to this court for disposal in accordance with law. It is so transferred.
It is pointed out that some of the High
Courts have issued interim orders in favour of the petitioners. If it is so, those interim orders will continue until further orders of this Court.
Accordingly, these petitions are allowed. The writ petitions stand transferred to this Court.
Liberty to le additional docu- ments."
When these petitions came up for hearing on 6th May, 2002 it was rep-
resented to this Court that the Union of India wanted to appoint a Review Committee to consider the question of uniform to be worn by the nurses in the Army. This Court made the following order:
"Upon hearing counsels the Court
made the following order:
There shall be an interim order
maintaining status quo in regard to the
uniform of Nurses concerned in these
petitions. Uniform they are wear- ing as on today shall be continued to be worn. If by virtue of interim or- ders of the High Court or otherwise at di erent places di erent
uniforms are being worn, same shall
continue till the disposal of these petitions.
List these matters for nal dis- posal in the month of September 2002. In the mean time if the Union of India wants to appoint a review committee to consider the question of uniform to be worn by the Nurses in the Army, they are free to do so and report to this Court."
The Union of India thereafter constituted a Committee known as 'Military Nursing Service Dress Re- view Committee' which was com- posed of the Director General of Medical Services (Army), as the Chairman, and representatives from the Director General of Armed Forces Medical Service, representa- tive from DGMS (Army), represen-
| 484 | Jasbir Kaur v. Union Of India 2003 | ||||
| tient wards. | |||||
| tative from DGMS (Navy), represen- | |||||
| tative from DGMS (Air Force), Dy. | 5. | In consonance with the direc- | |||
| Judge Advocate General and ADG | |||||
| tions of the Court it is to be ensured | |||||
| Military Nursing service as members. | that there is a clear di erence and | ||||
| The terms of reference of this Com- | distinction in terms of dress between | ||||
| mittee were the following: | the doctors and the nurses. | ||||
| "Terms of Reference | 6. | To go into the universality | |||
| 1. | To carry out a comprehensive | of dresses as worn by nursing sta | |||
| review of the MNS Dress Code from | in other major civil hospitals, para | ||||
| its inception to the present dress code | military hospitals and where possi- | ||||
| as promulgated vide army HQ letter | ble nursing sta of foreign armies to | ||||
| Nos: | draw suitable parallels to help evolve | ||||
| (a) B/70001/DGMS-4A dt. | 25 | a be tting dress code. | |||
| Jan 2000 | 7. | While making its recommen- | |||
| (b) B/42706/AGREEMENT/CW- | dations on the dress code the issue | ||||
| 1 dated 11 | of any expenditure and its nancial | ||||
| implications thereto should be borne | |||||
| September 2001 as amended vide | |||||
| in mind and recommendations made | |||||
| our letter No. B/42706/AGREEMENT/CW | - | ||||
| 1 dated 25 October | thereto. | ||||
| 8. | The Committee will also lay | ||||
| 2001 | |||||
| down the | |||||
| 2. | To Ascertain and deliberate | ||||
| channel of promulgation of the | |||||
| upon various issues raised by MNS | |||||
| new dress code including the recom- | |||||
| against the existing dress code so | mended time frame for its implemen- | ||||
| promulgated and analyse the cause of | tation." | ||||
| objection to the same including the | The Dress Review Committee | ||||
| issue of dress violations. | |||||
| held its deliberations on 8th and | |||||
| 3. | To go into all the issues | ||||
| 9th July 2002 and made a re- | |||||
| involved and suggest a dress code, | port. | Though Major General P.K. | |||
| whether it be the existing dress duly | Sethi, Addl DGMNS and Brig.(Mrs.) | ||||
| modi ed, or a new dress code. The | Usha Sikdar, DDMNS Central Com- | ||||
| dress code so recommended should | mand, were members of the Commit- | ||||
| be be tting, serve functional require- | tee, they expressed their reservations | ||||
| ment and be in keeping with the | with regard to the report and gave | ||||
| ethos and requirement of the Medi- | dissenting notes. | ||||
| cal Services. | The Dress Review Committee | ||||
| 4. | To ensure that the dress code | ||||
| went into the historical background | |||||
| so | of the constitution of the Military | ||||
| recommended facilitates the e - | |||||
| Nursing Service as a separate cadre, | |||||
| cient discharge of the primary duty | the applicable dress regulations for | ||||
| of the MNS sta which is of patient | the di erent services and the prob- | ||||
| care and e cient management of pa- | lems faced in the hospital environ- | ||||
485
ment, which were brought to its no- tice. It also took into account a num- ber of objections made by the IMNS questioning the rationality and va- lidity of the 11th September 2000 order. The Dress Review Commit- tee meticulously considered the ob- jections and having considered var- ious options found in favour of the Safari Suit of soothing colour (Beige colour) in suitable fabric with badges of rank on shoulders to meet the seasonable requirements of summer and winter, as the best available op- tion. It also recommended that the change over should be e ected within a time frame of three months and that the cost of the recommended dress should be borne by the Gov- ernment as one time measure in the form of an 'out t allowance' by ob- taining necessary sanction from the competent authority.
A copy of the Dress Review Com- mittee report has been placed on the record before us and learned counsel have taken us through it.
Learned counsels, Mr. R. Venkataramani and Mr. M. N. Kr- ishnamani, appearing for petitioners in di erent cases, basically urge two contentions. They contend that the prescribed uniform violates Articles 14 and 21 of the Constitution. When it was pointed out to the learned counsel that there was no question of Article 21 being considered un- less they were able to demonstrate that the prescribed uniform was out- rageous of modesty and dignity of womanhood or that it was so incon- venient as not to bear the onslaughts of nature, both learned counsel did
not press the contentions based on Article 21. They however, contended that Article 14 was violated as the uniform was intended to discriminate against the members of the IMNS by making them out to be a separate class.
In our view, the contention is en- tirely misconceived and unfounded. That the Indian Military Nursing Service is a separate class, sui generis, even though an auxiliary force of the Indian Military, is an un- deniable fact. The historical back- ground in which this force was es- tablished and the legal provisions ap- plicable to it leave no manner of doubt that notwithstanding that it is a part of the Indian Army, IMNS is a distinct but separate class by it- self. In any event, whether any part of the military services should have any uniform, and, if so, what should be the uniform, is an issue entirely within the province of The Chief of Army Sta by reason of Army Act, the Indian Military Nursing Act and the Regulations made by the Chief of Army Sta by the powers derivable therefrom. We see no scope for appli- cation of Article 14 in such matters, nor is any case made out therefor.
A major grievance made on be- half of the petitioners was that no heed was paid to their objections before the Dress Code was nally decided. Even if true, the con- tention has lost its force presently. When taken through the Dress Re- view Committee's Report by the learned Additional Solicitor General, we noticed that the said Commit- tee has meticulously applied its mind
| 486 | Jasbir Kaur v. Union Of India 2003 |
to several objections raised by the representatives of the IMNS. Each objection has been carefully exam- ined and appropriate recommenda- tion has been made by the review committee.
Apart from a ording an opportu- nity of putting forth their views in the matter, the members of IMNS could not have asked for anything higher. Each grievance has been carefully considered and addressed by the Dress Review Committee, and it is for the army authorities to take appropriate decision. A decision such as the one challenged before us can hardly be faulted unless on the ground of Wednesbury principle of rationality. In our view there is no such irrationality in the decision of
the Army Act which requires us to interfere in exercise of our constitu- tional powers. The petitions have no merit and are liable to fail.
The members of the IMNS have the glorious role model of the 'Lady with the Lamp', Florence Nightin- gale, who went around on the bat- tle eld, caring more for the patients than for her own life. We hope that the shining example of the Lady with the Lamp shall continue to be emu- lated by the members of the Indian Military Nursing Service.
All the petitions dismissed. In- terim orders vacated. The respon- dents are at liberty to take any ap- propriate decision. There shall be no order as to costs.
Chapter 41
Union Of India v. Ashok Kumar 2005
| Union Of India (Uoi) And Ors. | tained in Section 10 of the Border Se- | ||||||
| v. | Ashok Kumar And Ors. | on 18 | curity Force Act, 1968 (in short 'the | ||||
| October, 2005 Equivalent citations: | Act') read with Rule 20 of the Border | ||||||
| AIR 2006 SC 124, JT 2005 (12) SC | Security Force Rules, 1969 (in short | ||||||
| 515, 2005 (8) SCALE 397 Author: | 'the Rules). The appeal led by the | ||||||
| A | Pasayat Bench: | A | Pasayat, C | delinquent o cer was allowed upset- | |||
| Thakker | ting the judgment of the learned Sin- | ||||||
| JUDGMENT | gle Judge who had dismissed the writ | ||||||
| petition led by the delinquent o - | |||||||
| Arijit Pasayat, J. | |||||||
| cer. | |||||||
| Page 1138 | |||||||
| 3. | Factual position, ltering out | ||||||
| 1. | Leave granted | in S.L.P.(C) | |||||
| unnecessary details, is as follows: | |||||||
| 21363 of 2005/CC No. 6855 of 1999. | There was a raid in the house of | ||||||
| 2. | Both these appeals have ma- | ||||||
| militants on 23rd and 24th March, | |||||||
| trix in a judgment rendered by a Di- | 1992. | The delinquent o cer be- | |||||
| vision Bench of the Jammu Kashmir | ing Deputy Inspector General in | ||||||
| High Court in a Letters Patent Ap- | Command was having Supervisory | ||||||
| peal led by Ashok Kumar, the re- | power over the Commandant who | ||||||
| spondent in Civil Appeal No. | 4792 | raided the hideout of militants. On | |||||
| of 1999 and the appellant in the con- | the night intervening 23rd and 24th | ||||||
| nected appeal. For the sake of con- | March 1992 house of one Mohd. | ||||||
| venience said Ashok Kumar is de- | Maqbool Dhar in Bemina Colony | ||||||
| scribed hereinafter as the 'delinquent | of Srinagar was raided by 23 men | ||||||
| o cer'. By the impugned judgment | of the force. During the raid two | ||||||
| the High Court held that the removal | militants described as 'dreaded mil- | ||||||
| of the delinquent o cer from service | itants' namely Javed Ahmed Shalla | ||||||
| was in violation of the provisions con- | and Mohd. Siddiqui So were appre- | ||||||
| 488 | Union Of India v. Ashok Kumar 2005 |
hended. According to the authorities huge quantity of arms, ammunitions and explosives and household arti- cles including gold ornaments were recovered. The recovery of arms, ammunition and explosives and gold ornaments were not re ected in the seizure report sent to higher author- ities. Respondent was not present at the spot and he indicated his pres- ence at the scene of operation with a view to claim undue Page 1139 credit of achievements of the opera- tion. Full quantity of seized articles was not re ected in the report. 31 major weapons were recovered but only 22 were shown. Two pistols,ve AK-56 ri es, one rocket launcher and one Telescopic Ri e were not shown in the list of ammunition. Out of 31 gold ornaments 25 pieces were not shown in the list of seized ar- ticles. Second situation Report was also sent, but the same also did not re ect recovery of complete articles. To cover up these lapses another en- counter was shown to have taken place and a report regarding fake encounter was sent vide No.0-7209 which indicated the recovery of some gold ornaments. Another report was also sent from o ce of delinquent of-cer declaring goods which were not declared earlier. It was admitted that recovery of some weapons was not re ected in earlier report.
4. Therefore, a Sta Court of In- quiry was ordered to be held on 16th May, 1992 and the delinquent o cer was found responsible for following act of omission and commission:
(a) Falsely showing his presence at the scene of operation and search.
(b)Failure to make any observa- tions regarding serious omissions and discrepancies in the unit site report and detailed report.
(c)Suppression of information re- garding seizure of six weapons out of nine which were not declared by the Commandant.
(d)Suppression of information regarding seizure of household items.
(e)Suppression of information re- garding seizure of a substantial quan- tity of gold ornaments.
(f)Failure in supervisory duties by not giving expected directions to the Commandant in regard to ac- counting and disposal of seized items.
On 18.9.1992 Director General recorded his satisfaction that the ma- terial witnesses connected with case will not be available and as such the trial of the delinquent o cer before Security Force Court was inexpedient and impracticable and opined that further retention of the delinquent of-cer in service was undesirable.
On 23/25.9.1992 show-cause no- tice was served upon the delinquent o cer as to why his services be not terminated in accordance with Rule 20 of the Rules. On 31.10.1992 he sent reply to the show cause no- tice. On 13.1.1993 Inspector General found that there was adequate evi- dence both oral and documentary to prove the various charges against the delinquent o cer and he had no sat- isfactory explanation to the various charges and recommended that the competent authority may call upon the delinquent o cer to resign un- der Rule 20(4) or on his refusal to
489
do so, compulsorily retire or remove him from service with pension and gratuity. On 6.2.1993 Director Gen- eral after considering the show cause notice, reply to the show cause no- tice, report of the Enquiry O cer and view of Inspector General, BSF recorded his satisfaction that it was neither expedient nor practicable to conduct the trial and in exercise of his powers under Rule 20(4) of the Rules recommended to Central Gov- ernment that delinquent o cer be called upon to resign from service. The recommendation of the Direc- tor General, BSF that it was inexpe- dient or impracticable to hold Page 1140 inquiry and calling upon delin- quent o cer to resign was considered by the State Minister who expressed his view as under:-
"It is a very serious case which has brought bad name to the BSF in the State. I agree that the penalty of removal from service with- out pensionary bene ts should be im- posed on Shri Ashok Kumar DIG, BSF as proposed above. DG, BSF should also expedite imposition of penalty against the other delinquent o cers".
The Home Minister considered the entire record of the case in- cluding the recommendations of the desk o cer, Director General, Minis- ter of State's opinion and thereafter, recorded his own opinion. Home Minister accorded his approval as under:-
"We may rst remove him from service and also not being eligible for pension looking to the nature of the o ence, I don't think this will be
su cient punishment. We may also prosecute him so that it may have deterrent e ect."
By order dated 1.6.1993 Govern- ment of India in exercise of power conferred under Section 10 of the Act read with Rule 20(5) of Rules re- moved the delinquent o cer from the services without pensionary bene ts with immediate e ect.
5.The delinquent o cer led
aWrit Petition no.663 of 1993 in the High Court of Himachal Pradesh challenging the order dated 1.6.1993 whereby he was removed from service without pensionary bene ts. The writ petition was dismissed by the Himachal Pradesh High Court by or- der dated 3.9.1997 on the ground that it had no jurisdiction to deal with the writ petition. Thereafter, the delinquent o cer led a Writ Pe- tition no.1277/1997 in the Jammu and Kashmir High Court. An in- terim order was passed on 3.9.1997 directing the respondents in the writ petition to treat the writ petitioner to be in service with all service ben- e ts as he was enjoying till 2.9.1997. By order dated 5.2.1999 the learned Single Judge dismissed the writ peti- tion. The learned Single Judge's con- clusions are essentially as follows:-
(i)Plea of res-judicata cannot be accepted.
(ii)Delinquent o cer was given full and reasonable opportunity in the Court of Inquiry which was con- ducted in terms of Chapter XIV of the Rules, and he was found guilty of six lapses.
(iii)The view formed by Com-
| 490 | Union Of India v. Ashok Kumar 2005 |
petent Authority to dispense with holding of General Security Force Court was on the basis of material on record.
(iv)The decision to remove delin- quent o cer from service was not ac- tuated by mala de consideration.
(v)Decision taken by Home Min- ister su ered from no in rmity, and against him no malice has been shown.
(vi)Rules of business which re- quired matter to be placed before President of India are not applicable to the delinquent o cer."
Letters Patent Appeal was led by delinquent o cer against the or- der of learned Single Judge.
Page 1141
6. In support of the appeal, fol- lowing points were urged:
(i) There is no independent or su cient material for taking action under Rule 20 and the material re- lied upon is only that which has been collected by the Court of Inquiry, the use of which is not permissible.
The respondent can be tried be- fore the Security Force Court as the show cause notice has been served and the witnesses are also available.
(ii)Learned Single Judge has misdirected himself in recording thending and maintaining that it was not expedient and practicable to hold inquiry.
(iii)He is a Class-1 O cer of the BSF under Ministry of Home A airs and, therefore, as per Item No.13 of the First Schedule read with Rule 2 of the Govt. of India (Allocation of
Business) Rules, 1961 he could only be removed by the Prime Minister and the President in terms of Se- rial No.39 of the Third Schedule read with Rule 8 of the Transaction of Business Rules, 1961.
(iv) The authorities have re- moved him from service without fol- lowing the provisions of law con- tained in Section 10 of the Act read with Rule 20 of Rules, as the Central Government has neither recorded the satisfaction to the e ect that it is in- expedient and impracticable to hold inquiry nor formed any opinion that his further retention in service is un- desirable, for terminating the ser- vices under Rule 20 of Rules.
7. The Division Bench by the impugned judgment concurred with the ndings expressed by the learned Single Judge so far as rst three points are concerned. So far as the fourth point is concerned it was held that the Central Government was re- quired to record satisfaction that it was inexpedient and impracticable to hold inquiry, and to form opinion re- lating to delinquent o cer for reten- tion in service. According to the High Court the delinquent o cer had been removed from the service with- out following the provisions of Sec- tion 10 of the Act and Rule 20 of the Rules. The High Court noticed that two authorities are authorized to act under Rule 20 of the Rules. The procedure to be followed to ter- minate the services of an o cer is available under Section 10 of the Act by the Central Government on ac- count of misconduct. The expres- sion "as the case may be" relates to
491
the action to be taken by the Cen- tral Government and the action to be taken by the Director General. It was held that both the authori- ties did not have concurrent jurisdic- tion; otherwise the expression "as the case may be" would be rendered sur- plus and meaningless. Reference was made to Section 19 of the Army Act, 1959 (in short 'Army Act') and Rule 14 of the Army Rules 1954 (in short 'Army Rules'). It was noted that the language was in pari materia, ex- cept the words "as the case may be" with corresponding Section and Rule of the Act and the Rules respectively. Therefore, it was held that use of ex- pression "as the case may be" is sig- ni cant and indicative of two di er- ent spheres of activity for two di er- ent authorities. The Director Gen- eral was not the appointing authority of the delinquent o cer and, there- fore, it was held that only the Central Government could have taken action and not the Director General. It was incumbent upon the Central Govern- ment to record satisfaction that it was inexpedient and impracticable to hold trial, before the jurisdiction to take further action could be assumed.
Page 1142
8. In support of the appeal led by the Union of India learned Ad- ditional Solicitor General submitted that the Division Bench of the High Court has failed to take into account the true scope and ambit of Rule 20. It was pointed out that Rule 14 of the Army Rules dealt with any cat- egory of employees, while Rule 20 of the Rules dealt with o cers. It was pointed out that the Director Gen-
eral is given power to conduct inquiry and is also the appointing authority.
9. In support of the other appealled by the delinquent o cer, apart from the supporting judgment of the Division Bench it was submitted that the Division Bench of the High Court was not justi ed in its conclusions so far as the other three points are con- cerned. Speci c allegations of mala-des were not dealt with by the High Court. It was also submitted that in any event there was no applica- tion of mind by the concerned Minis- ter, and merely on the opinion of the Desk O cer the order was passed. Considering the limited scope for ju- dicial review it was submitted that the view of the Division Bench is ir- reversible. As the basic controversy revolves round the scope and ambit of Rule 20, it is necessary to quote the same. The said Rule reads as fol- lows:
"20. Termination of service of o cers by the Central Government on account of misconduct: (1) When it is proposed to terminate the ser- vice of an o cer under Section 10 on account of mis-conduct, 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 termi- nated on the ground of conduct which has led to his conviction by
acriminal court or a Security Force Court; or
(b)where the Central Govern- ment is satis ed that for reasons, to
| 492 | Union Of India v. Ashok Kumar 2005 |
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 Director-General, as the case may be, is satis ed that the trial of the O - cer by a Security Force Court is in- expedient or impracticable, but is of the opinion, that the further reten- tion of the said o cer in the ser- vice is undesirable, the Director Gen- eral shall so inform the o cer to- gether with particulars of allegation and report of investigation (including the statements of witnesses, if any, recorded and copies of documents if any, intended to be used against him) in cases where allegations have been investigated and he shall be called upon to submit, in writing, his ex- planation and defence;
Provided that the Director- General may withhold disclosure of such report or portion thereof if, in his opinion, its disclosure is not in the interest of the security of the State.
(3) In the event of explanation of the O cer being considered unsatis- factory by the Director-General, or when so directed by the Central Gov- ernment, the case shall be submitted to the Central Government with the O cer's defence and the recommen- dations of the Director-General as to the termination of the O cer's ser- vice in the manner speci ed in Sub- rule (4).
Page 1143
(4) When submitting a case to the Central Government under the provision of Sub-rule (2) or Sub- rule (3), the Director- General shall make his recommendations 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
(b)removed from the service; or
(c)retired from the service; or
(d)called upon to resign.
(5) The Central Government, af- ter considering the reports and the o cer's defence, if any, or the judg- ment of the Criminal Court, as the case may be, and the recommenda- tion of the Director-General, may re- move or dismiss the o cer with or without pension, or retire or get his resignation from service, and on his refusing to do so, the o cer may be compulsorily retired or removed from the service with pension or gratuity, if any, admissible to him."
Sub-rule (1) deals with the pro- posal to terminate the service under Section 10 on account of mis-conduct and requires an opportunity to be given to show cause in the manner stated. Operation of Sub-rule (1) is ruled out in the category of cases covered by the proviso to Sub-rule
(1). Sub-rule (2) deals with modal- ities to be followed when either the Central Government or the Director- General, as the case may be, is satis-ed that the trial of the O cer by a Security Force Court is inexpedient or impracticable and yet either the Central Government or the Director- General, as the case may be, is of
| 493 | |||||||||
| cer by the Central Government or | |||||||||
| the opinion that further retention of | |||||||||
| the concerned o cer in the service | judgment of the Criminal Court, as | ||||||||
| is undesirable. Thereafter, comes to | the case may be, and the recommen- | ||||||||
| the role of the Director- General. He | dation of the Director-General. The | ||||||||
| is required to inform the o cer to- | Central Government may pass the | ||||||||
| gether with particulars of allegation | order in terms of any of the alterna- | ||||||||
| and report of the investigation, (in- | tives indicated in the Sub-rule (5). | ||||||||
| cluding the statement of witnesses) | Page 1144 | ||||||||
| if any, which is intended to be used | |||||||||
| 10. | The High Court is plainly in | ||||||||
| against the delinquent o cer in cases | |||||||||
| error in holding that it is only the | |||||||||
| where allegations have been investi- | |||||||||
| gated. The concerned o cer is given | Central Government which is com- | ||||||||
| opportunity to submit his explana- | petent to act in terms of Sub-rule | ||||||||
| tion and defence. | Proviso to Sub- | (2). Expression "as the case may | |||||||
| rule (2) makes it clear that Director- | be" is otherwise rendered super u- | ||||||||
| General may withhold disclosure of | ous. Both the authorities can act in | ||||||||
| such report or portion thereof if he | terms of Sub-rule (2). | High Court | |||||||
| is of the opinion that the disclosure | overlooked the salient factor that | ||||||||
| is not in the interest of the security | any other interpretation would ren- | ||||||||
| of | the State. | Sub-rule | (3) relates | der reference to the Director-General | |||||
| to | consideration of | the | explanation | meaningless. | |||||
| furnished by the concerned o cer | A bare reading of Rule 20 makes | ||||||||
| the position clear that both the | |||||||||
| and the conclusions of the Director- | |||||||||
| General on consideration of the ex- | Director-General and the Central | ||||||||
| planation. Either when the explana- | Government can act in di erent sit- | ||||||||
| tion is considered unsatisfactory by | uations and consideration by the | ||||||||
| the Director-General or where it so | Director- General is not ruled out. | ||||||||
| directed by the Central Government, | Sub-rule (3) makes the position clear | ||||||||
| the case shall be submitted to the | that the explanation is to be con- | ||||||||
| Central Government with the O - | sidered by the Director-General and | ||||||||
| cer's defence and the recommenda- | only when it is directed by the Cen- | ||||||||
| tion of the Director-General as to the | tral Government, the matter shall | ||||||||
| termination of the o cer's service | be submitted to the Central Gov- | ||||||||
| in the manner provided in Sub-rule | ernment with the o cer's defence | ||||||||
| (4). When a case is submitted to the | and the recommendations of the | ||||||||
| Central Government under the pro- | Director-General. | When Director- | |||||||
| viso to Sub-rule (2) or Sub-rule (3), | General nds the explanation un- | ||||||||
| the Director- General is required to | satisfactory he recommends for ac- | ||||||||
| make recommendation whether the | tion. | There may | be | cases where | |||||
| o cer's service should be terminated | the Central Government directs the | ||||||||
| and, if so, which of the four alter- | Director-General to submit the case. | ||||||||
| natives provided should be adopted. | There can be a case where the Cen- | ||||||||
| Sub-rule (5) deals with consideration | tral Government nds that the ex- | ||||||||
| of the reports and defence of the of- | planation is unsatisfactory. In that | ||||||||
| 494 | Union Of India v. Ashok Kumar 2005 |
case the Central Government may di- rect the case to be submitted to it. At the rst stage the consideration is by the Director- General. When hends the explanation unsatisfactory, he recommends action by the Central Government. But even if he nds ex- planation to be satisfactory, yet the Central Government can direct the case to be submitted to it. Rec- ommendations in terms of Sub-rule
(4) are made by the Director-General and the nal order under Rule 20(5) is passed by the Central Government. The expression "as the case may be" is used in Sub-rule (2) and Sub-rule
(5). It obviously means either of the two. It is to be further noted that the order in terms of Sub-rule (5) is passed by the Central Government. But the enquiry can be either by the Central Government or the Director- General, as the case may be. There is another way of looking at Sub-rule
(2). Where report of the o cer's misconduct is made by the Director- General, the matter is to be placed before the Central Government and in all other cases the consideration is by the Director-General.
The words "as the case may be" means "whichever the case may be" or "as the situation may be". (See Shri Balaganesan Metals v. M.N. Shanmugham Chetty and Ors. ). The expression means that one out of the various alternatives would apply to one out of the various situations and not otherwise.
11. Therefore, the High Court's conclusions that Central Govern- ment is the only authority to con- sider the matter whether holding of
trial is inexpedient or impracticable is clearly indefensible.
12.Coming to the conclusion whether there was application of mind, the High Court had perused the concerned le and come to the conclusion that there was indepen- dent application of mind in passing the order of removal. Though in the appeal led by the delinquent o - cer the order of removal is assailed on the ground that only the Desk O cer's opinion was endorsed with- out application of mind, we do notnd the situation to be so. Copies of the entire le were produced be- fore us. It is clearly indicative of the fact that though the Desk O - cer's opinion was noted, there was in- dependent Page 1145 application of mind and, therefore, the plea of the delinquent o cer that the order suf- fers from the vice of non-application of mind is clearly untenable. Simi- larly, we nd the plea of mala- des does not appear to have been pressed before the High Court, and grievance related to other respondents and the personal allegations of mala- des do not appear to have been urged.
13.Doubtless, he who seeks to invalidate or nullify any act or or- der must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is not to be held established except on clear proof thereof, it is obviously di cult to es- tablish the state of a man's mind, for that is what the employee has to es- tablish in this case, though this may sometimes be done. The di culty is
495
not lessened when one has to estab- lish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala de in the sense of pursuing an illegit- imate aim. It is not the law that mala de in the sense of improper motive should be established only by direct evidence. But it must be dis- cernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vi- tiate the order, the same can, in our opinion, be deduced as a reason- able and inescapable inference from proved facts. (S. Pratap Singh v. State of Punjab ). It cannot be over- looked that burden of establishing mala des is very heavy on the per- son who alleges it. The allegations of mala des are often more easily made than proved, and the very serious- ness of such allegations demand proof of a high order of credibility. As noted by this Court in E. P. Royappa v. State of Tamil Nadu and Anr. , Courts would be slow to draw dubi-
ous inferences from incomplete facts placed before it by a party, particu- larly when the imputations are grave and they are made against the holder of an o ce which has a high responsi- bility in the administration. (See In- dian Railway Construction Co. Ltd. v. Ajay Kumar ).
As observed by this Court in Gu- lam Mustafa and Ors. v. The State of Maharashtra and Ors. mala de is the last refuge of a losing litigant.
14.That being so, the delinquent o cer's appeal is sans merit.
15.The inevitable conclusion is that the appeal led by the Union of India deserves to be allowed. The judgment of the Division Bench tak- ing the view contrary to that of learned Single Judge in its analysis of Rule 20 deserves to be set aside, which we direct. Similarly, the other appeal led by the delinquent o cer lacks merit and is dismissed. In the peculiar circumstances of the case, parties are directed to bear their re- spective costs.
| 496 | Union Of India v. Ashok Kumar 2005 |
Chapter 42
Union Of India v. Ranbir Singh Rathaur 2006
Union Of India & Ors v. Ran- bir Singh Rathaur & Ors. ... on 22 March, 2006 Author: A Pasayat Bench: A Pasayat, T Chatterjee
CASE NO.:
Appeal (civil) 2949-2950 of 2001
PETITIONER:
Union of India & Ors.
RESPONDENT:
Ranbir Singh Rathaur & Ors. etc.etc.
DATE OF JUDGMENT: 22/03/2006
BENCH:
ARIJIT PASAYAT & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
These two appeals are directed against the common judgment of a Division Bench of the Delhi High Court. By the impugned judgment the High Court disposed of two writ
petitions CW No. 3063 of 1995 led by respondentRanbir Singh Rathaur and CW No. 4082 of 1995 led by Ashok Kumar Rana. Alongwith these two writ petitions seven Let- ter Patent Appeals were also dis- posed of. These LPAs. are the sub- ject matter of challenge in Civil Ap- peal Nos.2951-57 of 2001 which were de-linked from the present two ap- peals by order dated 14.2.2006. The LPAs. and these writ petitions led before the High Court were linked in the sense that in all these cases concerned writ petitioners were dis- missed from service by the present appellants. They were all working at the relevant point of time in 168 In- fantry Brigade, deployed in a place called Samba in the border areas. By the impugned judgment the High Court held that the proceedings ini- tiated against the writ petitioners forming subject matter of the present appeals were void in law and the orders passed against these and the other o cers who were appellants in the LPAs were vitiated being with-
| 498 | Union Of India v. Ranbir Singh Rathaur 2006 |
out any material and being a cam- ou age. The relevant portion of the High Court's order reads as follows :
"Accordingly we declare that the proceedings initiated against the pe- titioners in the two writ petitions are void in law and the orders passed against the other o cers, the ap- pellants in L.P.As are vitiated being without any material and being cam- ou age. Having dropped the idea not to conclude Court Martial proceed- ings knowing fully well that the o - cers were likely to be acquitted, with- out producing relevant record before the concerned authority orders of termination were passed outing all norms. The appellants in the LPAs and the petitioners in the two writ petitions are entitled to all the conse- quential bene ts. We also hereby de- clare that the orders passed against the appellants in the LPAs are void in law and the conviction and sen- tence by the GOMs against the writ
petitioners are void in law. Con- sequently, the judgment of the learned Single Judge which are set aside and the writ petitions in those are allowed and the Latent Patent Appeals stand allowed and the two writ petitions also stand allowed. All the writ petitions stand allowed to the above extent indicated and other reliefs prayed for cannot be consid- ered by this Court and it is for the law makers to attend to the same. There shall be no order as to costs.
The respondents shall grant con- sequential reliefs to all the o cers in- cluding all monetary bene ts within a period of four months from today."
Factual background as high- lighted by the appellants is essen- tially as follows:
In February 1971 Gunner Sarwan Dass was cultivated by Pakistan In- telligence. In 1972 Capt. Ghal- wat & Gnr. Sarwan Dass crossed the international border. In 1973 Cap. Ghalwat & Gnr. Sarwan Dass were posted in Babina (MP). In 1974 Gnr. Aya Singh was cultivated by Gnr. Sarwan Dass for Pak intelli- gence. Capt. Nagial was then cul- tivated by Aya Singh for Pak intelli- gence. In 1975 for the rst time the espionage racket came to be noticed. Aya Singh and Sarwan Dass were ar- rested. In 1976-1977 pursuant to the investigation 3 more Jawans were ar- rested. They corroborated the in- volvement of Sarwan Dass. Sarwan Dass and Aya Singh on further inter- rogation disclosed the names of Capt. Ghalwat & Capt. Nagial. In 1976- 77 Capt. Ghalwat & Capt. Nagial were tried by General Court Martial and were convicted. Ghalwat was cashiered and given 14 years RI. Na- gial was given 7 years RI and was also cashiered. In addition, 12 jawans were tried and they were given RI of various descriptions and were dis- missed from services. Aya Singh and Sarwan Dass were also among the 12 jawans tried and held guilty. Later in 1978 it was discovered that Aya Singh was holding back certain rel- evant information relating to espi- onage activities under certain alleged threat and pressure. Wife of Aya Singh came to be killed. Reeling un- der the shock of the circumstances, he made further disclosures wherein
499
he named Capt. Rathaur and Capt. A.K. Rana, the respondents in these appeals and he disclosed that he was receiving threats that if he disclosed anything his wife would be killed. Accordingly, in 1978 Capt. Rathaur and Capt. A.K. Rana were interro- gated. As a result, 42 Army person- nel were arrested. The 42 Army per- sonnel included 19 o cers, 4 junior commissioned o cers (JCOs) and 19 Other Ranks (ORs.)
Out of the 19 o cers, 3 o cers were tried by General Court Martial, two were convicted, namely, Capt. Ranbir Singh Rathaur and Capt. A.K. Rana and one was acquitted. Capt. Ranbir Singh Rathaur and Capt. A.K. Rana were sentenced to RI for 14 years each and were cashiered. Against 13 o cers, disci- plinary actions were initiated. How- ever, a decision was taken not to try them and administrative order un- der Section 18 of Army Act, 1950 (in short the 'Act') was passed terminat- ing their services.
Present appeals relate to the 2 o cers punished by General Court Martial and the de-linked appeals re- late to 7 o cers out of 13 o cers whose services were terminated un- der Section 18 of the Act. The re- maining 3 o cers were not found blameworthy and no action was taken against them and they contin- ued in the Army. Out of 4 JCOs services of (3 JCOs) were terminated administratively and against 1 o cer no action was taken. Out of 19 oth- ers, 6 were tried by General Court Martial and were convicted and sen- tenced for various descriptions of im-
prisonment. Services of 9 others were terminated by administrative order and the rest 4 were let o and no ac- tion was taken against them.
At this juncture it would be ap- propriate to take note of previous lit- igations.
On 22.10.1980 Criminal Writ Pe- tition No. 90 of 1980 was led by Ex Captain Rana. On 4.6.1981 Criminal Writ Petition No. 90 of 1981 came to be dismissed by the Division Bench of Delhi High Court. It was observed that a number of points were raised on points of law and jurisdiction. It did not want these matters to be left undecided, therefore, arguments were heard on these points and were dealt with.
On 19.2.1982, SLP (Crl.) No.2320 of 1981 led by Capt. A.K. Rana against the order dated 4.6.1981 came to be dismissed.
On 17.10.1995 CWP No. 4082 of 1995 was led by Capt. AK Rana before the Delhi High Court. On 21.12.2000 the impugned judgment was passed.
On 24.8.1978 Capt. Ranbir Singh Rathaur was arrested and taken into custody on the basis of information collected by the Military Intelligence that Ranbir Singh Rathaur had been indulging in acts of espionage by passing secret and classi ed military information to agents of a foreign country. On 28.3.1979 Smt. Swaran Rathaur, wife of Capt. Ranbir Singh Rathaur led a Habeas Corpus Peti- tion under Article 32 of the Constitu- tion of India, 1950 (in short the 'Con- stitution') in this Court being Crim-
| 500 | Union Of India v. Ranbir Singh Rathaur 2006 |
inal Writ Petition No. 294/79, inter alia, seeking the following reliefs:
(a)That Ranbir Singh Rathaur be forthwith produced before this Hon'ble Court.
(b)That the Petitioner in the said writ petition, her lawyers and medical advisors be permitted to in- terview the said Capt. Rathaur in conditions controlled by this Hon'ble Court and proper medical care and facilities may be furnished to him.
On 12.4.1979 General Court Mar- tial was convened against Capt. Rathaur. On 17.4.1979 two charges were framed against Capt. R.S. Rathaur for o ences under Section 69 of the Act, read with Section 3(1)(c) of the O cial Secrets Act, 1923 (in short 'Secrets Act').
The Union of India led a Counter A davit in Crl. WP No. 294 of 1979, inter alia, pointing out that detenu was being tried by a General Court Martial and that sanction to the detention was given by the Chief of Army Sta and the Government. On 27.4.1979 this Court vide Order dated 27.4.1979 dismissed the Writ Petition No. 294/1979 as infructuous. This Court observed that:
"It has also not been disputed that the
proceedings of the Court Martial have started and the detenu has been allowed to appoint a counsel of his own choice who is at the
moment representing the detenu. In these circumstances, therefore, the Habeas Corpus Petition had become infructuous and does not merit any
interference by this Court."
As regards the allegations of tor- ture it was recorded that the Addi- tional Solicitor General produced be- fore the Court a record of the doc- tor who had examined the detenu thoroughly and found that the com- plaints made by him were without substance.
However, the petitioner was given liberty to make an application before the Military authorities for examina- tion by the Principal of the Medical College, Jammu. Such examination by a civil doctor was not to be taken as casting any re ection or aspersion on the impartiality or incompetence of the doctor of the Military Depart- ment. With these observations the petition was dismissed.
On 2.8.1979 Rathaur was con- victed and sentenced to 14 years rigorous imprisonment. In 1981 Rathaur led a Criminal Writ Peti- tion being Crl.W.P. No. 9 of 1981 in the Delhi High Court challeng- ing the Court Martial proceedings. On 23.3.1982 the High Court vide its order dated 23.3.1982 dismissed the petition of Rathaur relying upon its earlier decision in Criminal Writ No. 90 of 1980 dated 4.6.1981. In 1985 SLP (Crl.) 3573/85 against the Order dated 23.3.1982 of the High Court in Crl.W.P. No. 9 of 1981 was led by RS Rathaur. In 1985 Rathaur led a Writ Petition in this Court being Criminal Writ Petition No.1577 of 1985 again challenging the legality of the court martial pro- ceedings, the sentence passed and the con rmation thereof. It was alleged that the court martial proceedings
501
and sentence passed were arbitrary, illegal and that the procedure fol- lowed was in violation of the Act and the rules made thereunder.
Prayer (B) of the Writ Petition reads as under :
"Issue a writ order or directions in the nature of certiorari calling for the entire proceedings of the General Court Martial and quash the convic- tion and sentence of the Petitioner and the order of COAS con rming the said conviction and sentence."
On 10.2.1986 the Special leave Petition preferred by Capt. Rathaur to this Court being SLP (Crl.) No.3573 of 1985 against the Order dated 23.3.1982 of the High Court in Crl.W.P.No. 9 of 1981 was dismissed. On 28.4.1986 this Court dismissed the Criminal Writ Petition No. 1577 of 1985. This Court observed that the case was not a t case for call- ing for the records or for re-opening the matter and hearing it. On the prayer of the Counsel for Rathaur, this Court directed that the records be preserved for one more year.
On 23.1.1987 the Review Petitionled by Rathaur in respect of the order of this Court dated 10.2.1986 in SLP (Crl.) No.3573 of 1986 and the order dated 28.4.1986 in Crim- inal Writ Petition No.1577 of 1985 (Review Petition Nos. 493 of 1986 and 463 of 1986 respectively) were dismissed.
The order reads as under :
"We have gone through the Re- view
Petitions and connected papers. We nd no merit in the Review Peti-
tions which are
accordingly dismissed."
In May 1989 Rathaur was re- leased from custody. In 1995 Rathaur again challenged the valid- ity of the Court Martial proceedings which had been conclusively decided by this Court, by ling a fresh Writ Petition being CWP No. 3063 of 1995. Rathaur, inter alia, prayed for quashing of the same General Court Martial proceedings. Prayer (1) of Writ Petition is extracted below:
"(1) To issue a Writ of Mandamus and
any other appropriate Writ, Or- der or direction, inter alia command- ing the Respondent Nos. 1 and 2 in accordance with Section 165 of the Army Act, 1950 to annul the pro- ceedings of the General Court Mar- tial a ecting the petitioner as they are mala de, irrational, unjust and illegal and there has been a failure of justice."
On 17.10.1996 the present ap- pellants led an a davit taking the preliminary objection relating to the maintainability of the Writ Petition in view of the fact that the earlier Writ Petition of Rathaur had already been dismissed by the High Court on 23.3.1982 and the Special Leave Peti- tion as well as Review Petitions pre- ferred against the same were also dis- missed by this Court.
It is also pertinent to note that this Court vide order dated 28.4.1986 had dismissed Criminal Writ petition No.1577 of 1985 challenging the very same General Court Martial Pro- ceedings.
| 502 | Union Of India v. Ranbir Singh Rathaur 2006 |
The appellant also submitted that they would le a detailed counter a davit on merits after the issue of maintainability is decided.
On 14.8.1998 the Hon'ble High Court after hearing the matter at length was pleased to reserve the judgment.
On 22.3.1985 all the writ peti- tions challenging orders under Sec- tion 18 of the Act were dismissed.
In 1985, one of the writ petition- ers Sri N.D. Sharma led LPA being LPA No. 116 of 1985 against the or- der of dismissal. On 19.8.1986 the said LPA came to be disposed of by quashing the 5% cut, however, orders of termination of services were main- tained.
In 1986 Sri N.D. Sharma pre- ferred SLP(C) No. 13195 of 1986 against the order dated 19.8.1986. On 27.2.1987 SLP(C) No. 13195 of 1986 was dismissed. In 1992 Sri N.D. Sharma led a fresh Writ Petition be- ing Civil Writ Petition No. 3107 of 1992 before Delhi High Court. On 7.9.1992 Writ Petition No. 3107 of 1992 was dismissed on the ground of delay. In 1995 writ petition No. 4585 of 1995 was dismissed.
Similar petition has been dis- missed by the Division Bench in the case of Subhash Juneja v. Union of India (CW 271/95) as the said pe- titioner tried to re-open the decision which had attained nality. In 1997, Review Petition was led against the order of dismissal being RP No. 5897 of 1997. On 7.11.1997 RP No. 5897 was dismissed.
In 1987-1994 the balance 7 o -
cers led LPAs.
It was contended by the present appellants that these LPAs were cov- ered by the order in the case of Sri N.D. Sharma. The matter came to be referred to a Full Bench of the High Court to ascertain:
"Whether the order of termina- tion passed by and in the name of the President u/s 18 r/w Art. 310 invoking the doctrine of pleasure of the President can be challenged on the ground that it is camou age and as such violative of principles of nat- ural justice and the
fundamental right guaranteed under Article 14?"
On 8.7.1994 the Full Court ren- dered its judgment in Ex. Maj.N.R. Ajwani & Ors. v. Union of India 55 (1994) SLT 217. It was held that:
(a)The concept of camou age is
afacet of judicial review and the Court would lift the veil in all cases where it appears that the power is used for collateral purposes under the cloak or garb of innocuous form of an order and determine the true charac- ter of the order under
challenge.
(b) Therefore, an order under Section 18 of the Army Act read with Article 310 of the
Constitution invoking the doc- trine of pleasure of President is sub- ject to judicial reivew to ascertain whether the same is exercised
lawfully and not vitiated for malade or based on extraneous grounds and that order can be challenged on the ground that it is a
503
camou age."
In 1994 the Union of India pre- ferred Special Leave Petition (Civil) Nos.18732-36 against the order of the Full Bench of the High Court. On 17.11.1994 Special Leave Petition (Civil) Nos.18732-36 was granted. Although the judgment of the Full Bench was not disturbed it was held that it is for the person who chal- lenges the order passed u/s 18 on the ground of mala de to make out a prima facie case. It is only if he discharges the said burden, that the Government is called upon to show that the said order is not passed in its mala de exercise of powers.
On 2.5.1995 the High Court vide its order dated 2.5.1995 held that the issue of maintainability would be de- cided in the rst instance. The High Court in this regard observed:
"We are of the view that rst we should decide the batch whether fresh writ petitions are maintainable, then the question of going into the privilege claimed by the respondents will have to be decided."
On 8.3.1996 Division Bench of Delhi High Court dismissed similar petition. It was contended by the writ petitioner that the judgment of the Full Bench has given fresh cause of action to them to challenge the order of termination of service dated 3.3.1980 even if their challenge has been adjudicated upon till the Supreme Court. Earlier decisions were not based on lack of jurisdiction but it was not found to be a t case of interference. It was held that the pe- titions are barred by the principles of
res judicata and are accordingly dis- missed. This order has been a rmed by this Court.
On 6.1.1997 the present appel- lants led the a davit bringing on record this order's dated 17.11.1994. It was submitted that it would be just and proper to decide the prima facie case, if any, in favour of the ap- pellant/petitioners. It is only then the burden would shift to the respon- dent to show that the order had not been passed in mala de exercise of power.
On 14.8.1998 the relevant Orig- inal records pertaining to the case were shown to the Court. The or- der does not indicate that the records were insu cient or more papers were required to be produced. It is perti- nent to note that all the LPAs and two above said writ petitions were being taken up together for hearing by the High Court.
On 21.12.2000 the LPAs Nos.4/87, 43/87, 139/87, 148/87, 21/88, 77/93 and 86/1994 were al- lowed. It was, inter alia, observed by the High Court as follows:
(1) The case of the appellants and the case of the writ petitioners are in- terconnected and
intertwined and they can be looked as a whole. (2) Instead of pro- ducing all the relevant records, the respondent had produced only threeaps. (3) Perusal of the Counter Af-davit in all cases gives the impres- sion that the respondent had with- held material facts.
(4) Respondents have not placed any material justifying the action.
| 504 | Union Of India v. Ranbir Singh Rathaur 2006 |
(5)Respondent think they are law unot themselves.
(6)Respondents have chosen not to produce the entire record.
(7)We may not have interfered in view of nality reached on an ad- judication by this court provided the records were produced.
(8)On the consideration of all the facts and circumstances we are of the view that there is no other conclusion possible except to say that the orders are merely camou age and have been passed for extraneous reasons under the innocuous form of orders of ter- mination. (9) The appellants in the LPA are entitled to all consequential bene ts. Orders passed against the appellants in LPA are void.
On 3.1.2001 the counsel for the present appellant received back theles submitted to the High Court.
In these appeals, it has been urged as follows:-
(1) By application of the princi- ples of res judicata, the writ petitions were not maintainable. (2) The order dated 17.11.1994 of this Court has been overlooked.
(3)Onus of proof wrongly shifted to the present appellant.
(4)The earlier adjudications have not been taken into account.
(5)Delay in ling the writ peti- tions has not been considered.
(6)Records were produced before the High Court; contrary to what has been recorded.
It was pointed out that the High Court lost sight of the factual back- ground and on mere surmises and
conjectures allowed the writ peti- tions; overlooking the fact that on same grounds the writ petitions had been earlier led, were dismissed and even the writ petitions and the SLPs.led in this Court were dismissed. On clearly erroneous premises that there was no material to justify the action, the High Court came to the conclusion as noted above. It is submitted that the High Court pro- ceeded on the basis as if no mate- rial were produced before it and this is contrary to the actual position. In fact volumes of documents wereled which the High Court unfortu- nately did not take note of. This presumably happened because the judgment was reserved in 1998 and the impugned judgment was deliv- ered in December, 2000. The judg- ment is full of erroneous conclusions factually, which shows complete non- application of mind. An observation has been made by the High Court that though nality in law is de- sirable justice is of foremost impor- tance. It has not been even indi- cated as to in what manner the ear- lier proceeding su ered from legal- ity. The legality of the Court Mar- shal proceedings which was assailed were challenged earlier and were re- jected right up to this Court. To sub- stantiate the plea that original doc- uments were shown and the origi- nal les were led reference has been made to the receipt. Reference has also been made to the order dated 14th August, 1998, which reads as follows:
"Synopsis have been placed on record.
505
Mr. Tikky states that by 17.8.1998, photocopy of the rele- vant record will be made available to Court. Originals have been shown to us.
Judgment reserved."
It was pointed out that the only basis for ling the fresh writ appli- cations as is evident from the aver- ments made in the writ petitions is that some press reports had stated about irregularities in holding peo- ple guilty of espionage and the or- ders passed in the cases which formed the subject matter of challenge in the LPAs. The subject matter of the writ petitions which were under consider- ation in the LPAs were entirely dif- ferent and had no connection with the legality of the Court Marshal pro- ceedings.
In response, learned counsel for the respondent submitted that there was a great amount of manipulation and objectionable activities which subsequently came to light and on that basis the writ petitions wereled before the High Court and have been rightly allowed. In spite of opportunity as noted by the High Court, relevant documents were not produced. The stand that docu- ments were led before the High Court is refuted.
On a bare reading of the High Court's order and the averments in the writ petitions, one thing is crys- tal clear that there was no de nite al- legation against any person who was responsible for the so called manipu- lation. It is also not clear as to who were the parties in the writ petitions
led. In the grounds indicated in the writ petitions it was stated that there is no bar or impediment on the High Court reviewing the petitioner's case as also connected cases to enquire into the validity of the acts done against the writ petitioner. There- fore, it was an accepted position that the writ petitioners wanted review of the High Court's order, which is clearly impermissible. No ground for seeking such review apparently was made out. In any event we feel that the High Court's approach is clearly erroneous. The present ap- pellants in the counter a davit led had raised a preliminary objection as regards the maintainability of the writ petitions and had requested the High Court to grant further oppor- tunity if the necessity so arises tole a detailed counter a davit after the preliminary objections were de- cided. The High Court in fact in one of the orders clearly indicated that the preliminary objections were to be decided rst. But strangely it did not do so. It reserved the judgment and delivered the nal judgment af- ter about three years. There is also dispute as to whether the relevant documents were produced. What ba es us is that the High Court records with original documents were shown to it and the Bench wanted the copies to be led. In the im- pugned judgment the High Court proceeded on the basis as if only a few pages of the les were shown. If that was really the case, there was no necessity for the High Court to direct the present appellants to le copies. If after perusal of the docu- ments the High Court felt that these
| 506 | Union Of India v. Ranbir Singh Rathaur 2006 |
were not su cient the same would have been stated. But that does not appear to have been done. The High Court also had not discussed as to how the matters which stood concluded could be reopened in the manner done. No su cient grounds have been even indicated as to why the High Court felt it necessary to do so. To say that though nality had been achieved justice stood at a higher pedestal is not an answer to the basic question as to whether the High Court was competent to re- open the whole issue which had be- come concluded. The persons whom the High Court felt were responsible for alleged manipulation or persons behind false implication were not im- pleaded as parties. Newspaper re- ports are not to be considered as evi- dence. The authenticity of the news- paper reports was not established by the writ-petitioners. Even otherwise, this could not have been done in a writ petition, as disputed questions of fact were apparently involved. The matters which the High Court found to have been established were really
not so. The conclusions were based on untested materials, and the writ- petitioners had not established them by evidence. Since the High Court has not dealt with the matter in the proper perspective we feel it would be proper for the High Court to re- hear the matter. The High Court shall rst decide the preliminary ob- jections raised by the present appel- lants about the non-maintainability of the writ petitions. Normally such a course is not to be adopted. But in view of the peculiar facts involved, it would be the appropriate course to be adopted in the present case. Therefore, we remit the matter to the High Court for fresh hearing. We make it clear that whatever we have observed should not be treated to be the conclusive ndings on the sub- ject matter of controversy. The ap- peals are allowed without any or- der as to costs. Since the matter is pending since long, we request the High Court to dispose of the mat- ter as early as practicable, preferably within four months from the date of receipt of the judgment. No costs.
Chapter 43
Union of India v. Capt. Satendra Kumar 2006
Union of India v. Capt. Satendra Kumar (Arijit Pasayat and Lokesh- war Singh Panta, JJ.) Union of India and Ors. : Petitioner(s) v. Capt. Satendra Kumar : Respondent(s)
Civil Appeal No. 2084 of 2003, decided on July 18, 2006
The Judgment of the Court was delivered by
Arijit Pasayat, J.
Challenge in this appeal is to the legality of the judgment rendered by a Division Bench of the Allahabad High Court holding that the respon- dent is entitled to be re-instated and is to be given time up to 9.6.2004 to pass the Part B examination. The background facts in a nutshell are as under: Respondent was commis- sioned on 9.6.1984 as an O cer in the Indian Army. In terms of Rule 13-A of the Army Rules, 1954 (in short the 'Rules') read with para 79 of the Defence Service Regulations (in short the 'Regulations') all com- missioned o cers were required to pass, in terms of the existing rules,
the promotional examination (Part B) within 13 years of reckonable ser- vice. Thereafter, they were required to pass Part D examination for pro- motion within 20 years. The re- spondent making apparently wrong and erroneous representation that he had completed Part B course and had passed, applied for next pro- motional Part D examination with- out indicating correct particulars re- garding the results of Part B ex- amination in the application form. When the authorities found that he was not eligible, his result in Part D examination was declared to be void. Since the respondent had not completed Part B examination as per the existing rules and Special Army Instructions a show cause no- tice was issued in terms of Rule 13- A of the Rules. Respondent replied to the show cause notice and made a statutory complaint. While the matter was pending, on 8.1.1998 the respondent was awarded severe dis- pleasure (non-recordable) for ling false application form for Part D ex-
| 508 | Union of India v. Capt. Satendra Kumar 2006 |
amination. This was, however, un- connected with the show cause notice issued earlier under Rule 13-A. On 20.8.1999 the Government of India amended Army Instructions whereby the time limit for completing the examination was extended from 13 years to 20 years. It was how- ever made applicable with e ect from 24.4.1998. On 5.7.2000 the appel- lant communicated its decision not to retain the respondent in service as he had failed to qualify in Part B examination within the prescribed time limit. On receipt of the order in question which permitted the re- spondent to make a representation, if any, within 15 days, the respondent made a representation on 2.8.2000. On 21.9.2001 order was passed re- tiring the respondent from service in terms of Section 19 of the Army Act, 1950 (in short the 'Act') read with Rule 13-A of the Rules. Re- spondent led a Writ Petition before the Allahabad High Court challeng- ing the order dated 5.7.2000. The primary stand was that by the time the order was passed, period for pass- ing the examination was extended up to 20 years and, therefore, he had time till 9.6.2004 to pass the exami- nation in question. The present ap- pellants pointed out that by the time the amendment was made the pe- riod of 13 years prescribed under the Army Instructions was already over and in any event the amendment was operative with e ect from 24.4.1998 and was not applicable to the re- spondent. The High Court, how- ever, was of the view that when the impugned order of voluntary retire- ment was passed in September, 2001
the period had been amended from 13 years to 20 years and, therefore, the respondent was entitled to re- instatement. Learned counsel for the appellants submitted that the High Court clearly erred in holding that the amendment was applicable to the respondent. By the time the amend- ment was introduced the period of 13 years originally stipulated was over so far as the respondent is concerned and in any event the amendment was made speci cally operative with ef- fect from 24.4.1998 and was clearly inapplicable to the respondent. No one appears for the respondent. Wend that the High Court's approach is clearly untenable. The relevant Rule and the instructions read as fol- lows: "Promotion Examination Part B(Lt. to Captain) As per SAI 1/S/85 amended vide SAI/26/S/89: 15(a) Promotion Examination Part B. Of-cers who fail to qualify in Promo- tion Examination Part B till comple- tion of 13 years reckonable service for o cers commissioned before 31 July 1984 and 11 years reckonable service in the case of o cers commissioned on or after 31st July, 1984 will be is- sued a show cause notice under AR 13-A for termination of service. The services of these o cers will be ter- minated as per the provisions con- tained in Army Rule 13-A." Rule 13- A. Termination of Service of an o - cer by the Central Government on his failure to qualify at an examination or course (1) when an o cer does not appear at or, having appeared fails to qualify at the retention ex- amination or promotion examination or any other basic course or examina- tion within the time or extended time
509
speci ed in respect of that examina- tion or course, the Chief of the Army Sta (or the Military Secretary) shall call upon the o cer to show cause why he should not be compulsorily retired or removed from the service.
(2) In the event of the explanation being considered by the Chief of the Army Sta (or the Military Secre- tary) to be unsatisfactory, the mat- ter shall be submitted to the Cen- tral Government for orders, together with the o cer's explanation and the recommendations of the Chief of the Army Sta (or the Military Secre- tary) as to whether the o cer should be- (a) called upon to retire; or (b) called upon to resign. (3) The Cen- tral Government, after considering the explanation if any, of the o - cer and the recommendation of the Chief of the Army Sta (or the Mil- itary Secretary), may call upon the o cer to retire or resign, and on his refusing to do so, the o cer may be compulsorily retired or removed from the service on pension or gratuity, if any, admissible to him." So far as the
amendment to the Army Instructions and Regulations are concerned, the amended Army Instructions issued on 20th August, 1999 were applica- ble with e ect from 24.4.1998. That is clearly indicated in the amended instructions issued on 20th August, 1999. The President had sanctioned the amendment to be operative from 24.4.1998. By the time the amend- ment came into e ect, the 13 years period which was available to the respondent to pass Part B exam- ination was over. The notice re- garding non success in the examina- tion within the stipulated time had also been given to the respondent on 11.9.1997. Merely because the nal order was passed on 21.9.2001 that did not change the position so far as the respondent is concerned. The High Court is, therefore, clearly in er- ror in holding that the extended pe- riod of 20 years was applicable to the respondent. The High Court's order is indefensible and is set aside. The appeal is allowed. No costs.
| 510 | Union of India v. Capt. Satendra Kumar 2006 |
Chapter 44
Romesh Kumar Sharma v. Union of India 2006
Romesh Kumar Sharma v. Union of India & Ors [2006] Insc 462 (1 Au- gust 2006)
Arijit Pasayat & S.H. Kapadia
With CIVIL APPEAL NO. 3222 OF 2006 (Arising out of SLP (C) No. 5832 of 2006) ARIJIT PASAYAT, J.
Delay condoned.
Leave granted in SLP (C) No.5832 of 2006.
Appellants in both the appeals call in question legality of the judg- ment rendered by a Division Bench of the Jammu and Kashmir High Court dismissing the Letters Patent Appealled by the appellants questioning correctness of the order passed by a learned Single Judge whereby the writ petition led by him was dis- missed. The review petition led was also dismissed which is the subject matter of challenge in Civil Appeal No. 7308 of 2003. The other appeal relates to the order passed in the Let- ters Patent Appeal.
Background facts in a nutshell
are as follows :
The appellant while working as Havildar/Clerk (GD) in Ladakh Scouts, having 17 years service in the Army, was found involved, along with a few other persons, in es- pionage activities during the pe- riod 1984-85. The appellant along with others was interrogated and a Court of Inquiry under Rule 177 of the Army Rules, 1954 (in short the 'Rules') was constituted to col- lect evidence and to report. Said Court of Inquiry con rmed the in- volvement of the appellant. Keep- ing in view the paramount consider- ation of Army discipline and the se- curity of the State, it was considered expedient by the authorities to pro- ceed against the appellant under Sec- tion 20(1) of the Army Act, 1950 (in short the 'Act') read with Rule 17 of the Rules. Accordingly, the appel- lant was dismissed from service dis- pensing with enquiry.
Appellant challenged the order of dismissal on the ground that the
| 512 | Romesh Kumar Sharma v. Union of India 2006 |
same was illegal, unconstitutional, improper, mala de and violative of Rule 17 of the Rules and Articles 14 and 21 of the Constitution of India, 1950 (in short 'the Constitution') and that no opportunity of being heard had been a orded to him to ex- plain his conduct. In the counter af-davit led by the respondent-Union of India and its functionaries, it was pointed out that the approval of the Chief of Army Sta had been ob- tained and the procedures required have been duly complied with.
The basic stand of appellant be- fore the High Court was that an en- quiry had been conducted to nd out whether the appellant and oth- ers were involved in the alleged espi- onage, the same was given up mid- way and ultimately the order of ter- mination was passed. It was submit- ted that the procedure required was not followed and in any event action was taken without following the prin- ciples of natural justice. The High Court rejected the stand holding that the enquiry which was originally con- ducted was not qua the appellant but it related to the incident. Further neither any notice was issued nor any charge sheet was submitted. In any event it was held that the authori- ties were empowered to take action in terms of Section 20 of the Act read with Rule 17 of the Rules in appro- priate cases. The Letters Patent Ap- peal as noted supra did not bring any relief to the appellant.
A review application was led against the order of learned Single Judge as a rmed by the Division Bench, which as noted above, was
also dismissed.
In support of the appeal, Mr. Bhim Singh, learned counsel submit- ted that the true scope and ambit of Rule 17 of the Rules has not been kept in view. Power of dismissal or removal from service is conferred on the Chief of the Army Sta . An en- quiry was conducted by a Court of Inquiry and the role attributed to the appellant is very minor and does not warrant an order of dismissal. Pa- rameters of the power of dismissal or the removal are contained in Rule 17 of the Rules.
The proviso is of exceptional na- ture. No reason was recorded as to why, it was thought to be not expedi- ent or reasonably practicable to com- ply with the provisions of the main part of Rule 17 of the Rules. That being so the order of dismissal can- not be maintained.
Per contra learned counsel for the respondent-Union of India and its functionaries submitted that modal- ities to be followed when Chief of the Army Sta thinks it inexpedi- ent to follow procedure as laid down in the main part of Rule 17 of the Rules have been followed. He gave a certi cate to the e ect that it is not expedient or reasonably practica- ble to comply with the provisions of the Rules and certi cate as required has been given. It is submitted that on consideration of the materials on record done in an objective manner, the Chief of the Army Sta passed the order. It has not been even al- leged or shown that there was any mala de exercise of powers. That being so the High Court was justi ed
513
in its conclusion that the grievances are without substance.
In order to appreciate rival sub- missions, it is necessary to take note of Section 20 of the Act and Rule 17 of the Rules.
The applicability of the proviso to Rule 17 is the core issue to be con- sidered.
20.
Dismissal, removal or reduction by the Chief of the Army Sta and by other o cers.
1.
The Chief of the Army Sta ] may dismiss or remove from the service any person subject to this Act other than an o cer. 2.
The Chief of the Army Sta s may reduce to a lower grade or rank or the ranks, any warrant o cer or any non-commissioned o cer. 3.
An o cer having power not less than a brigade or equivalent com- mander or any prescribed o cer may dismiss or remove from the service any person serving under his com- mand other than an o cer or a junior commissioned o cer. 4.
Any such o cer as is mentioned in sub-section (3) may reduce to a lower grade or rank or the ranks, any warrant o cer or any non- commis- sioned o cer under his command. 5.
A warrant o cer reduced to the ranks under this section shall not, however, be required to serve in the ranks as a sepoy. 6.
The commanding o cer of an acting non-commissioned o cer may order him to revert to his perma-
nent grade as a non-commissioned of-cer, or if he has no permanent grade above the ranks, to the ranks. 7.
The exercise of any power under this section shall be subject to the said provisions contained in this Act and the rules and regulations made thereunder.
17.
Dismissal or removal by Chief of the Army Sta and by other o cers. Save in the case where a person is dismissed or removed from service on the ground of conduct which has led to his conviction by a criminal court or a court martial, no person shall be dismissed or removed under sub- section (1) or sub-section (3) of sec- tion 20; unless he has been informed of the particulars of the cause of ac- tion against him and allowed reason- able time to state in writing any rea- sons he may have to urge against his dismissal or removal from the service:
Provided that if in the opinion of the o cer competent to order the dismissal or removal, it is not expedi- ent or reasonably practicable to com- ply with the provisions of this rule, he may after certifying to that ef- fect, order the dismissal or removal without complying with the proce- dure set out in this rule. All cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be re- ported to the Central Government.
The normal function of a proviso is to except something out of the en- actment or to qualify something en- acted therein which but for the pro- viso would be within the purview of
| 514 | Romesh Kumar Sharma v. Union of India 2006 |
the enactment. As was stated in Mullins v. Treasurer of Survey [1880
(5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Gin- ning Factory v. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta (AIR 1965 SC 1728); when one nds a proviso to a section the natural presump- tion is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its e ect is con ned to that case. It is a qual- i cation of the preceding enactment which is expressed in terms too gen- eral to be quite accurate. As a gen- eral rule, a proviso is added to an en- actment to qualify or create an ex- ception to what is in the enactment and ordinarily, a proviso is not in- terpreted as stating a general rule. "If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso." Said Lord Watson in West Derby Union v. Metropolitan Life Assurance Co. (1897 AC 647)(HL). Normally, a pro- viso does not travel beyond the provi- sion to which it is a proviso. It carves out an exception to the main pro- vision to which it has been enacted as a proviso and to no other. (See A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors. (AIR 1991 SC 1406), Tribhovandas Haribhai Tam- boli v. Gujarat Revenue Tribunal
and Ors. (AIR 1991 SC 1538) and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P)Ltd. and Ors. (1994 (5) SCC 672).
"This word (proviso) hath divers operations.
Sometime it worketh a quali ca- tion or limitation; sometime a con- dition; and sometime a covenant" (Coke upon Littleton 18th Edition, 146) "If in a deed an earlier clause is followed by a later clause which de- stroys altogether the obligation cre- ated by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails....But if the later clause does not destroy but only quali es the earlier, then the two are to be read together and ef- fect is to be given to the intention of the parties as disclosed by the deed as a whole" (per Lord Wrenbury in Forbes v. Git [1922] 1 A.C. 256).
A statutory proviso "is something engrafted on a preceding enactment" (R. v. Taunotn, St James, 9 B. & C. 836).
"The ordinary and proper func- tion of a proviso coming after a gen- eral enactment is to limit that gen- eral enactment in certain instances" (per Lord Esher in Re Barker, 25 Q.B.D. 285).
A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso (See Jen- nings v. Kelly [1940] A.C. 206)." Un- der the proviso to Rule 17 the Chief of the Army Sta and other o cers
515
are competent to order dismissal or removal without complying with the procedure set out in the main part of the Rule after certifying that it is not expedient or reasonably practica- ble to comply with the provisions so set out. There is a further require- ment that such cases of dismissal or removal shall be reported to the Cen- tral Government.
Original records were produced before us. A perusal thereof shows that the Chief of the Army Sta had followed the requisite procedure and the certi cate as contemplated in the proviso to Rule 17 of the Rules has been given. The note sheets, the records which were also perused by the High Court clearly show that var- ious aspects were taken note of and it was speci cally recorded that it will be inexpedient to follow the proce- dure provided in the main part of Rule 17 of the Rules. There is, there- fore, no substance in the plea taken by learned counsel for the appellant.
Additionally, it is alleged that the main plank of the argument of the appellant before the High Court was that the enquiry which was ini- tiated should not have been aban- doned midway and should have been continued. As rightly noted by the High Court, the enquiry was not qua the appellant but it related to the incident. That being so there was nothing wrong in the order of dis- missal. It cannot be faulted. In any event enquiry was not abandoned midway as claimed. The basic facts were revealed during enquiry. In any event, as has been held by this Court in Union of India and Others v. Har-
jeet Singh Sandhu [2001(5) SCC 593] even after a Court Martial is held de- partmental action is not prohibited. In para 41 it was noted as follows:
"Having thus explained the law and clari ed the same by providing resolutions to the several illustrative problems posed by the learned ASG for the consideration of this Court (which are illustrative and not ex- haustive), we are of the opinion that the expiry of period of limitation under Section 122 of the Act does not ipso facto take away the exer- cise of power under Section 19 read with Rule 14. The power is avail- able to be exercised though in the facts and circumstances of an indi- vidual case, it may be inexpedient to exercise such power or the exercise of such power may stand vitiated if it is shown to have been exercised in a manner which may be called colourable exercise of power or an abuse of power, what at times is also termed in administrative law as fraud on power. A misconduct commit- ted a number of years before, which was not promptly and within the prescribed period of limitation sub- jected to trial by court martial, and also by reference to which the power under Section 19 was not promptly exercised may cease to be relevant by long lapse of time.
A subsequent misconduct though less serious may aggravate the grav- ity of an earlier misconduct and pro- vide need for exercise of power un- der Section 19. That would all de- pend on the facts and circumstances of an individual case. No hard and fast rule can be laid down in that
| 516 | Romesh Kumar Sharma v. Union of India 2006 |
behalf. A broad proposition that power under Section 19 read with Rule 14 cannot be exercised solely on the ground of court martial proceed- ings having not commenced within the period of limitation prescribed by Section 122 of the Act, cannot be accepted. In the scheme of the Act and the purpose sought to be achieved by Section 19 read Rule 14, there is no reason to place a narrow construction on the term `impracti- cable' and therefore on availability or happening of such events as render trial by court martial impermissible or legally impossible or not practica-
ble, the situation would be covered by the expression-the trial by court martial having become `impractica- ble'." It was also pleaded that ap- proval of Central Government was necessary in case action was taken under the proviso to Rule17. Wend no such necessity prescribed. All that is required that where proviso to rule 17 is resorted to report has to be made to the Central Govern- ment. Record reveals that same has been done.
Above being the position we nd no merits in these appeals, which are accordingly dismissed. No cost.
Chapter 45
Pradeep Singh v. Union Of India 2007
| Pradeep Singh v. Union Of India | Background facts in a nutshell | |||||
| & Ors on 19 April, 2007 Author: . | are as follows: | |||||
| A Pasayat Bench: . A Pasayat, L S | Absence for a period | of 2= | ||||
| Panta | ||||||
| months was treated as misconduct | ||||||
| CASE NO.: | and Summary Court Martial was | |||||
| Appeal (civil) 5799 of 2000 | convened in terms of Section 116 | |||||
| of the Army Act, 1950 (hereinafter | ||||||
| PETITIONER: | ||||||
| referred to as the 'Act'). | He was | |||||
| Pradeep Singh | ||||||
| charged under Section 39A of the Act | ||||||
| RESPONDENT: | by order dated 7.8.1989 for having | |||||
| Union of India & Ors | remained absent from duty without | |||||
| leave. He was tried and punished by | ||||||
| DATE | OF | JUDGMENT: | ||||
| a Summary Court Martial vide order | ||||||
| 19/04/2007 | dated 16.8.1989. The order of dis- | |||||
| BENCH: | missal passed by the Court Martial | |||||
| Dr. | ARIJIT | PASAYAT | & | was challenged in the writ petition | ||
| LOKESHWAR SINGH PANTA | primarily on the following grounds: | |||||
| JUDGMENT: | (i) that o ciating Commanding | |||||
| J U D G M E N T | O cer was not competent | to con- | ||||
| vene the Summary Court | Martial | |||||
| Dr. ARIJIT PASAYAT, J. | ||||||
| and therefore, the proceedings and | ||||||
| Challenge in this appeal is to | the sentence awarded by the Sum- | |||||
| the judgment rendered by a Divi- | mary Court Martial is illegal being | |||||
| sion Bench of the Jammu and Kash- | without jurisdiction; (ii) that the pe- | |||||
| mir High Court dismissing the Let- | titioner was neither provided any le- | |||||
| ters Patent Appeal led by the ap- | gal assistance nor allowed to cross- | |||||
| pellant. | examine the witnesses, and therefore, | |||||
| 518 | Pradeep Singh v. Union Of India 2007 |
the right of hearing has been denied to him;
(iii) that the petitioner having been punished by removal of the rank could not be tried and punished on the same ground.
The respondents took the stand that all the submissions are with- out foundation. The High Court no- ticed that the appellant was posted somewhere in Leh and was deputed for Commando course in December, 1988 which he joined in January, 1989. He completed the course on 7.2.1989, but instead of reporting at the Transit Camp after completion of the course, he went home on the as- sumption that he had already applied for annual leave which must have been sanctioned by his Command- ing O cer. He nally reported at 259-Transit Camp on 21.4.1989 and reached his unit on 19.5.1989. His grievance was that immediately after he reached the unit, his rank of Naik was withdrawn. Later he was di- rected to appear before the Summary Court Martial on 11.8.1989, which concluded the hearing and awarded the punishment of dismissal. The High Court found that the stand that O ciating Commanding O cer was not competent to convene Summary Court Martial was without substance in view of the de nition of "Com- mandant O cer" as given in Section 3(v) of the Act. So far as the denial of legal assistance is concerned, it was noted that the appellant admit- ted that Major D.P. Naikavde was named as his friend to advise him during the course of trial. His plea that he did not see the said o cer
during the court martial was found to be without substance. It was noted that in case he was not assisting him, he could have made a grievance before the Summary Court Martial. That has not been done. There was no substance in the plea. The appel- lant was informed that on completion of the commandant course he did not immediately join the unit and in- stead joined after 2= months. He as- sumed leave may have been granted without any foundation. As he was holding acting rank of Naik, he for- feited the right to hold the same be- cause of his absence from duty with- out leave as per army Headquarter letter No.94930/AG/PSC (C) dated 21.11.1988. Appellant was not hold- ing the substantive rank of Naik, the same was withdrawn, because of absence without leave. It was in essence withdrawal of a conces- sion given. The plea relating to dual jeopardy was, therefore, without any substance. Accordingly, writ peti- tion was dismissed. Before the Divi- sion Bench the stand taken before the learned Single Judge was reiterated. The Division Bench found that in view of the factual scenario as noted by the learned Single Judge, the writ petition had been rightly dismissed. It, however, observed that in case some persons similarly situated were treated with leniency, it was open to the appellant to make a representa- tion which shall be duly considered by the respondents. With the afore- said observation the Letters Patent Appeal was dismissed.
The learned counsel for the ap- pellant highlighted the same aspects
519
which were urged before the learned Single Judge and the Division Bench. According to him, the withdrawal of the rank was a punishment and the High Court was, therefore, not jus- ti ed in its view. Learned counsel for the respondent on the other hand supported the orders. With refer- ence to Section 80 of the Act, learned counsel for the appellant submitted that removal of stripes amounted to punishment and, therefore, further action was not permissible. In this context, the rules relating to acting ranks need to be noted. The same is contained in Army Instructions Nos. 84 and 88. Rule 84 relates to pro- motion for Junior Commissioned Of-cers and other Ranks. According to the instructions, there are two kinds of promotion, i.e. one acting and other substantive. So far as the act- ing rank is concerned, they are dealt with in Part I. The same so far rele- vant reads as under:
"PART I .- ACTING RANKS
2. The following are the gen- eral provisions governing the above promotions:-
(a)Acting promotion will be made to ll vacancies in authorized establishment, whether temporary or permanent. Acting rank will remain unpaid until an unbroken period of
28days has been served in that rank when acting rank will be converted into paid acting rank; pay will be admissible with retrospective e ect from the date of the grant of such acting rank.
(b)The rank of Nb Ris/Nb Sub is a substantive rank. No acting pro-
motion to that rank will, therefore, be made. A senior NCO may, how- ever, be authorized to perform the duties of a Nb Ris/Nb Sub where necessary.
(c)Every Commanding O cer of
aUnit or O cer-in-charge Records, where acting promotions are cen- trally controlled on Corps roster ba- sis, is empowered to make acting pro- motions, provided that the individ- uals concerned are in possession of all the quali cations prescribed for the higher rank. The authority com- petent to sanction acting promotion is also empowered to order reversion from such acting rank. Acting and paid acting promotions or reversions will be published in Part II orders which will be the authority for issue of pay and allowances of the appro- priate rank.
(d)Acting rank will be granted from the day the vacancy occurs pro- vided that the individual has as- sumed the duties of the higher rank from that day and reversion will take place with e ect from the day the in- dividual ceases to perform the duties of the appointment for which acting rank is granted or the vacancy ceases to exist except as provided otherwise.
(e)On casual, annual or accumu- lated annual leave (i) On casual leave An individual will retain paid acting rank or paid lance appointment dur- ing the period of casual leave and no acting promotion will be permissible in his place. Acting rank will, how- ever, be relinquished from the date of overstayal of casual leave except when the period of casual leave and its overstayal is regularized against
| 520 | Pradeep Singh v. Union Of India 2007 |
annual leave entitlement for the year in which casual leave is taken and as Special Leave vide Rule 6 (d) (ii) of Leave Rules for the Service, Vol. I- Army Cases of overstayal of casual leave owing to sickness will be dealt with as in clause g (ii) below.
(ii) On annual or accumulated annual leave An individual will re- tain paid acting rank or paid lance appointment during the period of annual or accumulated annual leave and no acting promotion will be per- missible in his place. Acting rank will, however, be relinquished from the date of expiry of such leave un- less the overstayal is due to natu- ral calamities and the period of over- stayal is regularized as Special Leave vide Rule 6(d) (ii) of Leave Rules for the Services, Vol. I.- Army.
xxx xxx xx
Part II deals with Substantive Ranks. The withdrawal of ranks of Naik was on account of his unautho- rized absence and was not, therefore, punishment in that sense. Section 80 on which strong reliance has been placed reads as under:
"80. Sitting in closed court (1) A court martial shall, where it is so directed by these rules, and may in any other case on any deliberation amongst the members, sit in closed court.
(2)No person shall be present in closed court except the members of the court, the judge advocate (if any) and any o cers under instruction.
(3)For the purpose of giving ef- fect to the foregoing provisions of the rule, the court martial may either re-
tire or cause the place where they place where they sit to be cleared of all other persons not entitled to be present. (4) Except as hereinbefore mentioned all proceedings, including the view of any place, shall be in open court and in the presence of the accused subject to sub-rule (5). (5) The court shall have the power to ex- clude from the court any witness who has yet to give evidence or any other person, other than the accused, who interferes with its proceedings."
A bare reading of the provisions along with the Army Instructions make it clear that Section 80 has no application to the facts of the present case.
So far as legality of the Court Martial is concerned, the learned Sin- gle Judge has found that the appel- lant was not holding substantive rank of Naik. The rank which was tem- porarily given was liable to be with- drawn in case of absence from duty and somebody else had to hold that post. This situation arises when a person who was acting as Naik is not available.
The next ground of challenge re- lates to legality of proceedings before the Court Martial.
Though Court Martial proceed- ings are subject to judicial review by the High Court under Article 226 of the Constitution, the court mar- tial is not subject to the superinten- dence of the High Court under Ar- ticle 227 of the Constitution. If a court martial has been properly con- vened and there is no challenge to its composition and the proceedings
521
are in accordance with the proce- dure prescribed the High Court or for that matter any court must stay its hands. Proceedings of a court martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Proce- dure, 1973 where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court martial remains to be signif- icant degree, a specialized part of overall mechanism by which the mil- itary discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court martial for an act which is an o ence under the Act. Court Martial discharges ju- dicial function, and to a great ex- tent, is a court where provisions of the Evidence Act are applicable. A court martial has also the same re- sponsibility as any court to protect the rights of the accused charged be- fore it and to follow the procedu- ral safeguards. If one looks at the provisions of law relating to court martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instruc- tions of the Army, it is manifestly clear that the procedure prescribed is
perhaps equally fair if not more than a criminal trial provides to the ac- cused. When there is su cient evi- dence to sustain conviction, it is un- necessary to examine if pre-trial in- vestigation was adequate or not. Re- quirement of proper and adequate in- vestigation is non-jurisdictional and any violation thereof does not inval- idate the court martial unless it is shown that accused has been preju- diced or a mandatory provision has been violated. One may usefully re- fer to Rule 149 quoted above. The High Court should not allow the chal- lenge to the validity of conviction and sentence of the accused when evi- dence is su cient, court martial has jurisdiction over the subject matter and has followed the prescribed pro- cedure and it is within its powers to award punishment.
Above position was highlighted in Union of India and Ors. v. IC 14827, Major A. Hussain (AIR 1998 SC 577).
The inevitable result is that the appeal is without merit, deserves dis- missal which we direct. However, lib- erty as given to the appellant by the Division Bench, having not been as- sailed by the respondents, remains unaltered.
| 522 | Pradeep Singh v. Union Of India 2007 |
Chapter 46
Union Of India v. S.P.S. Rajkumar 2007
| Union | Of India | v. | S.P.S. Ra- | mar, the appellant in C.A.No.128 of | ||||||
| jkumar And Ors on 24 April, 2007 | 2003. | The other two appeals have | ||||||||
| Author: . | A Pasayat Bench: . | A | been led by the Union of India, i.e. | |||||||
| Pasayat, L S Panta | Civil Appeal No.127 of 2003 against | |||||||||
| CASE NO.: | the main judgment and Civil Appeal | |||||||||
| No. 606 of 2003 against the modi - | ||||||||||
| Appeal (civil) 127 of 2003 | ||||||||||
| cation order. | ||||||||||
| PETITIONER: | ||||||||||
| Background facts | in a nutshell | |||||||||
| Union of India | ||||||||||
| are as follows: | ||||||||||
| RESPONDENT: | Respondent-Rajkumar joined Air | |||||||||
| S.P.S. Rajkumar and Ors | Force as a Commissioned O cer in | |||||||||
| DATE | OF | JUDGMENT: | the Logistics Branch. | He rose to | ||||||
| 24/04/2007 | the rank of Group Captain in 1998. | |||||||||
| According to the appellant- | Union | |||||||||
| BENCH: | ||||||||||
| of India, respondent-Rajkumar com- | ||||||||||
| Dr. | ARIJIT | PASAYAT | & | mitted large scale impropriety in the | ||||||
| LOKESHWAR SINGH PANTA | matter of purchases while he was | |||||||||
| JUDGMENT: | functioning in the rank of Group | |||||||||
| J U D G M E N T | Captain. On 12.1.2000, the charge | |||||||||
| sheet was accordingly issued listing | ||||||||||
| (With | Civil | Appeal | Nos. | |||||||
| out 9 charges relating to nancial im- | ||||||||||
| 128/2003 and 606/2003) | propriety committed by him. | The | ||||||||
| Dr. ARIJIT PASAYAT, J. | conveying order for the Assembly | |||||||||
| These three appeals relate to the | of the General Court Martial (in | |||||||||
| order passed by a Division Bench of | short the 'GCM') was issued and | |||||||||
| the Delhi High Court allowing the | Judge Advocate was appointed. On | |||||||||
| writ petition led by S.P.S. Rajku- | 24.1.2000, the GCM proceedings as- | |||||||||
| 524 | Union Of India v. S.P.S. Rajkumar 2007 |
sembled on a charge sheet contain- ing nine charges, all of which per- tained to improper purchase proce- dure and nancial impropriety. On 13.3.2000, GCM proceedings con- cluded with the nding that the re- spondent was guilty of four charges. Accordingly, it sentenced the respon- dent to forfeiture of two years senior- ity and severe reprimand. By order dated 13.4.2000, the Convening Au- thority of GCM i.e. AOC-Incharge, Maintenance Command Head Quar- ters, Nagpur, on review, ordered for re-assembly of the GCM for revision of the sentence.
On 24.4.2000, this Court in Union of India and Anr. v. Charan- jit S. Gill and Ors. (JT 2000 (5) SCC 135) interpreted certain provisions of the Army Act, 1950 (in short the 'Act') and the Army Rules, 1954 (in short the 'Army Rules') holding that the Judge Advocate should be equal or superior to the rank of the accused o cer just like the Rules provided for the members of GCM. However, this Court gave prospective e ect to the judgment declaring that the same shall not be applied to proceedings which have attained nality and also will not be applied to pending cases in courts where such a plea has not been raised. On 13.5.2000, pursuant to the order of 14.3.2000, the GCM re-assembled and passed a fresh sen- tence of dismissal and revoked the earlier sentence.
The respondent-Rajkumar sub- mitted two pre-con rmation peti- tions on 25th May, 2000 and 30th June, 2000.
The Chief of Air Sta on 7.9.2000
con rmed the ndings and sentence. He also dealt with the aspect of the seniority of the Judge Advocate. The Chief of Air Sta cited two reasons on the aspect of Judge Advocate, (a) question of seniority of Judge Advo- cate was not raised before the GCM; and (b) in fact Judge Advocate of su cient seniority was not available and by doctrine of necessity the con- cerned Judge Advocate was the only available o cer.
The respondent-Rajkumar led post con rmation petition under Sec- tion 161 (2) of the Air Force Act, 1950 (in short the 'Air Force Act') on 30.1.2000 and the same was re- jected by the Central Government on 24.9.2001. By judgment dated 5.8.2002, the Division Bench of the High Court quashed the decision of the GCM proceedings of dismissal of service on the ground that the Judge Advocate was junior in rank and, therefore, the GCM proceedings were vitiated. However, liberty was granted to proceed afresh with GCM. The modi cation application led by Union of India was also dismissed by the High Court.
In support of the appeal, learned counsel for the Union of India sub- mitted that the vires of certain provi- sions though raised were not pressed into service before the High Court. The only ground pressed into service was that the Judge Advocate was ju- nior in rank. Therefore, the proceed- ings were illegal.
With reference to Rule 40 of the Air Force Rules, 1969 (in short the 'Air Force Rules'), it is submitted that member of GCM should not be
525
junior, but it permits the juniors to be taken as members in certain cir- cumstances. The Judge Advocate is not a member of GCM.
It is not a case where at therst instance respondent-Rajkumar had raised any objection about the alleged lack of seniority of the Judge Advocate. It is submitted that the provisions in the Army Act and un- der the Army Rules are entirely dif- ferent from Air Force Act and Air Force Rules. It is pointed out that any Rule similar to Rules 103/104 of the Army Rules did not exist in the Air Force Rules.
The GCM proceedings were over. Only the sentence part remained to be nalized. There was no objection raised during the GCM proceedings and even no amendment was sought for to pending proceedings. up to the date of judgment there was no plea relating to the lack of seniority of the Judge Advocate. The order of the GCM clearly indicated that there was no o cer available who was se- nior.
It is submitted that the High Court had erred in holding that the relevant date was the date of ling of the writ petition. It should be the date of the judgment of the GCM.
In reply, learned counsel for the respondent-Rajkumar submitted that the Gill's judgment (supra) has full application under the Air Force Rules and the Army Rules. Simi- lar provisions relating to composition of GCM are the same. The conven- ing order does not speak of any non- availability.
It is to be noted that there was no challenge to the nding that there was no senior army o cer available. Rule 46 which relates to the eligibil- ity of the member does not speak of seniority. It speaks of the same rank or superior rank. There was no ob- jection at any point of time about the lack of seniority. In fact the High Court has fallen into error in hold- ing that the relevant date is the date of ling of the writ petition.
There is also no plea raised in these appeals as regards the nd- ing that nobody who was senior was available. Therefore, the High Court was not justi ed in interfering with the conclusions of the GCM holding the same to be not validly consti- tuted. The order is set aside. The appeals of the Union of India stand allowed to that extent. Raj Kumar's appeal is sans merit.
At this juncture, it is to be noted that the question of appropriateness of the sentence was raised before the High Court. The High Court did not examine that aspect in view of the conclusions that the composition of the GCM was not legal. The High Court shall only consider that aspect. Though certain pleas of mala de ap- pear to have been raised in the writ petition, the High Court has specif- ically noted that, that plea was not pressed into service. Therefore, the High Court shall consider the writ petition only on the question of sen- tence and no other issue.
The appeals are accordingly dis- posed of. There will be no order as to costs.
| 526 | Union Of India v. S.P.S. Rajkumar 2007 |
Chapter 47
Sheel Kr. Roy v. Secretary M/O Defence 2007
| Sheel Kr. Roy v. Secretary M/O | He secured rst position in the | ||||||||
| Defence & Ors [2007] Insc 642 (18 | South Command and third position | ||||||||
| May 2007) | on an all India basis. | In | ordi- | ||||||
| S.B. Sinha & Markandey Katju | nary course, he would have become | ||||||||
| a Commisioned O cer upon obtain- | |||||||||
| S.B. Sinha, J : | |||||||||
| ing training from Army Cadet Col- | |||||||||
| 1. | Interpretation and applica- | ||||||||
| lege, Dehra Doon but prior thereto | |||||||||
| tion of some provisions of the Army | he was posted to Ladakh. | While | |||||||
| Act | 1950 (hereinafter referred | to | posted at Leh, owing to high alti- | ||||||
| as "The Act") and Army Rules, | tude of the place, he developed psy- | ||||||||
| 1954 (hereinafter referred to as "The | chiatric problems. For want of nec- | ||||||||
| Rules") arises for consideration in | essary care, he became a psychiatry | ||||||||
| this | appeal, | which arises out | of | patient. | He had to undergo | treat- | |||
| the judgment and order of a Divi- | ments in the Army Hospitals situated | ||||||||
| sion Bench of the Delhi High Court | at Chandigarh, Allahabad, Jabalpur | ||||||||
| dated 4.3.2005 passed in Writ Peti- | and Ambala. | ||||||||
| tion (Civil) No.3442 of 1998, dismiss- | 3. In the Medical Board proceed- | ||||||||
| ing the writ petition led by the ap- | |||||||||
| ings held on 22.4.1987, the appellant | |||||||||
| pellant herein. | was put in medical category 'CEE' | ||||||||
| 2. | Appellant joined the Army | ||||||||
| wherein it was opined : | |||||||||
| Service on or about 18.8.1981. | He | "This 27 yrs. Old serving soldier | |||||||
| is a holder of B.Sc. (Biology) degree. | |||||||||
| with more than 5 yrs. | of service is | ||||||||
| He has received trade training in the | a case of Neurosis-onset of illness in | ||||||||
| Army as a Technician Electronic Sys- | early Jan. 1987 while serving it high | ||||||||
| tem. | He passed the 54th Entrance | altitude area. | |||||||
| Examination from Army Cadets Col- | Illness | was | characterised | with | |||||
| lege from Dehra Doon in the year | |||||||||
| acute onset of attacks of chest pain, | |||||||||
| 1986. | |||||||||
| 528 | Sheel Kr. Roy v. Secretary M/O Defence 2007 |
giddiness, vomiting and tingling sen- sation all over the body, physical.
Present Condition.
Examination and relevant labora- tory parameters were within normal limits. He was evaluated psychiatri- cally at CH (WC) in Chandigarh in Feb. 87.
Psychologically he was tense anx- ious and worried. He showed pre- occupation on somatic symptoms, craved for sympathy.
Exaggerated his symptoms and expressed his inability to withstand extreme cold climate and other en- vironmental constraints, of high alti- tude area. He had sleep and appetite disturbances with normal insight and judgment.
He has been managed with phy- chotherapy and anxiolytics for which response is favourable it present a symptomatic. He is cheerful and have no overt signs of anxiety. On motivation for further service is FM SF-10 dated 10 Apr. 87 is unsatis- factory.
He needs to be observed in low medical category.
Recommended to be placed in medical category CEE temporary psychological for 6/12 yrs.
To be reviewed thereafter with fresh AFMSF-10 by his O.C.Unit."
[Emphasis supplied]
4. The medical re-categorization which was to take place on or about 21.10.1987 was delayed. He contin- ued to be on medical leave and was categorized to be in CEE category for six months. Thereafter he went on
leave as a part of annual leave, but he allegedly over stayed for about 96 days. Some punishment was imposed on him by an order dated 5.12.89. He prior to joining his present post- ing, was posted in another unit on 20.1.1990.
He was allegedly found t to join his duties. He was again summar- ily tried and awarded three days' payne despite the fact that his medical re- categorization had not been done timely. He was admitted to Medical Hospital, Ambala from 13.5.1990 to 7.6.1990 for medical recategorisation.
He was granted casual leave for the period of 7.6.1990 to 18.6.1990 to visit his family, but he allegedly overstayed his leave again for 20 days, even though there is nothing to show as to whether he had been declared t for joining his duties or not. There is also nothing on record to show that any action was taken against him in respect thereof but ad- mittedly he was admitted to Medi- cal Hospital, Ambala for medical re- categorization. He was transferred to Command Hospital (Western Com- mand) on 16.7.1990.
5. For his purported absence for the period from 16.7.1990 to 22.7.1991, a chargesheet was submit- ted which reads as under :
"The accused No.14243462A Sigmn(TES) Sheel Kumar Roy of 2 Corps Air Sp. Sig Unit is charged with :- Army Act Section 39(a) AB- SENTING HIMSELF WITHOUT LEAVE In that he, at Ambala Cantt, absented himself without leave from M11, Ambala Cantt. At 1000h.
| 529 | |||||||
| 3. | Absence period of above pa- | ||||||
| on 16th July 1990 and remained so | |||||||
| till surrendered voluntarily at Depot | tient to be regularized administra- | ||||||
| regt. (Corps of Signals) Jabalpur at | tively as per existing orders by MH | ||||||
| 0700h on 22 Jul. 91. | Ambala Cantt/2 Corps Air Sup Sig | ||||||
| Station : Ambala Cantt | Unit. | ||||||
| Dated : 3 Sep. 91. | 4. | o.13964654 L/NK/NA M.S. | |||||
| Pillai | ex-MH Ambala Cantt now | ||||||
| Sd/- (Amarjit Singh) | |||||||
| posted to 151 Base Hosp. Has given | |||||||
| Col.Commanding O cer 2 Corps | |||||||
| false | statement | after having duly | |||||
| Air Sp. Sig Unit" | cautioned that he had brought 3 pa- | ||||||
| 6. | We would deal with this as- | tients where as No.14243462 S/Man | |||||
| pect of the | matter a little later, | S.K. Roy was absconding from MH | |||||
| but we may notice that it is borne | Ambala Cantt. | Disciplinary ac- | |||||
| out from the record that he had | tion against the individual is recom- | ||||||
| again been sent to Command Hospi- | mended." | ||||||
| tal (Western Command) for medical | [Emphasis supplied] | ||||||
| re-categorization. | |||||||
| 8. | We may also put on record | ||||||
| Having been found t, he was al- | |||||||
| that, as far back as 17.5.1990, his | |||||||
| legedly discharged from the Hospital | behaviour having been found un- | ||||||
| on 12.8.1991upon upgrading to Med- | satisfactory, an opinion was formed | ||||||
| ical Category 'AYE'. He was sum- | that 'his mental outlook and personal | ||||||
| marily tried for another misconduct | habits and his behaviour in the unit | ||||||
| and was awarded 7 days Rigorous Im- | being unsatisfactory' as it was recom- | ||||||
| prisonment and 7 days Pay ne. | mended not to retain him in service. | ||||||
| 7. It is further interesting to note | 9. | It is really a matter of | |||||
| that a Court of Enquiry was held in | |||||||
| grave concern that, despite the rec- | |||||||
| terms of Army Rule 22 of the Rules | ommendations of the Court of En- | ||||||
| on 3.9.1991 in regard to the alleged | quiry, he while undergoing punish- | ||||||
| overstay from 16.07.1990. In its opin- | ment of 7 days' Rigorous Imprison- | ||||||
| ion the Court of Enquiry observed : | ment by the order dated 30.8.1991, | ||||||
| "1. | No.14243462 S/Man S.K. | the charge-sheet in question being | |||||
| Roy of 2 Corps Air Sup. Signal Unit | dated 3.9.1991 was issued to the ap- | ||||||
| had absconded on 16 July 90 at 1000 | pellant by the Commanding O cer | ||||||
| h from M.H.Ambala Cantt while still | of his unit. He was tried in a Sum- | ||||||
| on their strength. | mary Court Martial proceeding held | ||||||
| 2. No.14243462 S/Man S.K. Roy | on 7.9.1991 only for an hour i.e. | ||||||
| has been received by this hospital | from | 13.45 to 14.45 hrs. | It is not | ||||
| on the authority of 2 Corps Air | again in dispute that the Command- | ||||||
| Sup. | Sig. | Unit vide their letter | ing O cer himself was the Prose- | ||||
| No.213/PC/SKR/03/X of 29 Jul 91 | cutor and also the Judge. | He was | |||||
| and admitted to this hosp. On 30 Jul | held guilty and sentenced to un- | ||||||
| 91 (FN). | dergo | six months' rigorous impris- | |||||
| 530 | Sheel Kr. Roy v. Secretary M/O Defence 2007 |
onment and was also the punish- ment of dismissal from service. On Appeal, the Chief of Sta , how- ever, by order dated 5.10.1991 remit- ted three months' Rigorous Impris- onment maintaining the sentence of dismissal. He made representations before the higher authorities.
10.The Writ Petition led by the appellant, as noticed hereinbe- fore, has been dismissed by the High Court. We may, however, before pro- ceeding with matter notice that the records of the Court of Enquiry were not placed before the High Court.
11.Ms. Lily Thomas, learned counsel appearing on behalf of the appellant inter alia would submit :
(i)Appellant having been suf- fering from mental illness and hav- ing been undergoing rigorous impris- onment for seven days on a di er- ent charge, service of the charge on him during that period as also hold- ing of a Court Martial wherein the Commanding O cer played both the role of a prosecutor as also a Judge amount to denial of his human right as also Article 21 of the Constitu- tion of India. No legal assistance was also provided to him and further- more no time having been granted for preparation of his case as he was in custody, the proceeding should be treated to be an eye-wash.
(ii)Imposition of two punish- ments, viz., rigorous imprisonment as also dismissal from service is viola- tive of Section 39 read with Section
71of the Act.
(iii)Appellant having been found to be not t for being retained in ser-
vice in a medical proceedings held on 17.5.1990, quick successive con- victions one for making a complaint to the Adjutant General directly and another for violation of Section 39 of the Act must be held to be wholly illegal. Charge against the appel- lant in regard to his alleged unau- thorized absence was based on incor- rect facts as from the movement or- der led by the respondents them- selves, it would appear that he had been admitted in Medical Hospital, Ambala on 11.7.1990.
(iv) Recommendations of the Court of Enquiry although noticed by the Commanding O cer him- self in the Summary Court Martial Proceedings having not been taken into consideration, the said author- ity must be held to have misdirected itself in law. Had the recommenda- tions been taken into consideration, the Commanding O cer would have regularized his leave and in any event he having been found to be admitted in a Medical Hospital or in a Hospital as a patient, the ndings of unautho- rized absence is perverse.
12. Mr. Vikas Singh, learned Ad- ditional Solicitor General, appearing on behalf of the respondents, on the other hand, would submit that:
(i)the appellant having been found t for joining his services, no illegality has been committed by the Commanding O cer in awarding a punishment of six months' Rigorous Imprisonment as also dismissal from service.
(ii)Although the appellant had pleaded guilty before the Command-
| 531 | ||||
| It is true that the opinion of | ||||
| ing O cer, he had proceeded in | ||||
| terms of Section 116 of the Act on the | the Court of Enquiry is only recom- | |||
| premise as if the delinquent o cer | mendary in nature but it is also true | |||
| had not pleaded guilty and, thus, the | that the Commanding O cer in a | |||
| Summary Court Martial proceedings | proceeding for Summary Court Mar- | |||
| must be held to have been conducted | tial was required to take that fact | |||
| in accordance with law, particularly | into consideration. It is one thing to | |||
| when he had again pleaded guilty be- | say that the recommendations of the | |||
| fore the Commanding O cer in the | Court of Enquiry had not been ac- | |||
| said proceedings. | cepted but then if such recommen- | |||
| (iii) The contentions raised before | dations had been made having re- | |||
| us having not been raised before the | gard to the materials which were | |||
| High Court, this Court should not | brought on the records by the re- | |||
| entertain the same. | spondents themselves, we are of the | |||
| opinion that it was obligatory on his | ||||
| 13. | The fact that the appellant | |||
| part to assign some reasons in sup- | ||||
| was su ering from mental illness for a | port thereof. It is evident that the | |||
| long time is not in dispute. We have | premise on which such recommenda- | |||
| noticed hereinbefore that he was rec- | tion has been made by the Court of | |||
| ommended to be placed in Medical | Enquiry was not taken into consider- | |||
| Category CEE for six to twelve years. | ation in the Summary Court Martial | |||
| His medical re-categorization, | proceeding. | |||
| however, had not been done periodi- | 16. In any event, the respondents | |||
| cally. | ||||
| themselves should have explained in | ||||
| 14. | From the records produced | |||
| their counter-a davit as to why the | ||||
| by the respondents, it is evident that | recommendations of the Court of En- | |||
| the appellant had remained in one | quiry were not accepted. Once it is | |||
| or the other Army Medical Hospitals | held that for the period of the pur- | |||
| from 8.7.1990. | ported absence in question or a part | |||
| 15. | Although he is said to | thereof he had not been absconding | ||
| have absented himself on and from | but was admitted in Military Hos- | |||
| 10.7.1990, it now transpires that he | pital, Ambala Cantt, the matter de- | |||
| had been admitted at the Com- | served a deeper scrutiny at the hands | |||
| mand Hospital, Ambala Cantt from | of the competent authority. | The | ||
| 11.7.1990. This discrepancy has not | movement orders in respect of the ap- | |||
| been explained. | pellant who had been described as | |||
| The Court of Enquiry in the | a patient clearly shows that he was | |||
| aforementioned situation must be | admitted in Amabala Cantt Hospital | |||
| presumed to have made recommen- | on 11.7.1990. The movement order | |||
| dations for regularization of his leave | furthermore shows that he was also | |||
| upon consideration of the relevant | transferred to Chandigarh Hospital. | |||
| records and particularly the move- | 17. Fairness and reasonableness | |||
| ment orders. | in the action of the State whether in | |||
| 532 | Sheel Kr. Roy v. Secretary M/O Defence 2007 |
a criminal proceeding or otherwise is the hallmark of Article 14 of the Con- stitution of India. The doctrine of proportionality is one of the grounds on the basis whereof the power of ju- dicial review could be exercised. It was so held in Ex.Naik Sardar Singh v. Union of India and Ors. 1991(3) SCC 213.
18. We may also notice that in Ranjit Thakur v. Union of India and Ors. reported in 1987(4) SCC 611, this Court held :
"The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the o ence and the o ender. It should not be vindictive or un- duly harsh. It should not be so dis- proportionate to the o ence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the ex- clusive province of the Court Mar- tial, if the decision of the Court even as to sentence is an outrageous de - ance of logic, then the sentence would not be immune from correction. Ir- rationality and perversity are recog- nised grounds of judicial review."
19. We although agree with the learned Additional Solicitor General that it is legally permissible to award more than one punishment in terms of Section 71 of the Act but we may notice that Section 39(a) specif- ically deals with the misconduct in respect of absence without leave. It is one thing to say that legally it
is permissible to impose more than one punishments but then also it is another thing that in exercising the said power all attending situa- tions which fell for consideration by the punishing authority in regard to the quantum thereof would not be taken into consideration. It is clear that the Commanding O cer in the Summary Court Martial proceedings failed to take into consideration the relevant fact and, thus, committed an error apparent on the face of the record. We are also of the opinion that in a case of this nature, impo- sition of both punishment of rigor- ous imprisonment for six years as also dismissal from service was wholly ar- bitrary in nature. It is also vitiated in law as all relevant facts were not taken into consideration.
20.The learned Additional So- licitor General took pains in explain- ing to us that the appellant's condi- tion had improved and, in fact the medical category was upgraded from CEE to AYE and ultimately he was found t for joining his duties only on 12.8.1991. The said submission, how- ever, in our opinion, does not stand
amoment's scrutiny. What was re- quired to be taken into consideration is the conduct of the appellant for the period 16.7.1990 to 22.7.1991. It is not the case of the respondents that even during the said period, his be- haviour or mental condition was such which enabled the authorities to put him on trial or his behaviour even during the said period deserved a harsh punishment, assuming he was guilty of commission of misconduct.
21.On their own showing, the
533
respondents accepted that during his entire service career, the appellant remained a mental patient and had been undergoing his treatment in one hospital or the other. It was, therefore, obligatory on the part of the Commanding O cer to take into consideration the said fact for the purpose of arriving at a nding of his guilt on the charges of miscon- duct as also for xing the quantum of punishment. It is in that limited sense, assignment of some reasons in a case of this nature must be held to be necessary. It is now a well settled legal principle which has rmly been accepted throughout the world that a person merely by joining Armed Forces does not cease to be a citizen or be deprived of his human or con- stitutional right. This aspect of the matter has been considered by a Di- vision Bench of the Delhi High Court in Nirmal Lakra v. Union of India & Ors. reported in 2003(1) SLJ 151.
22.Once it is held that arbitrari- ness of the Commanding O cer in the matter of holding the appellant and awarding punishment upon him is apparent on the face of the record, the impugned order must be held to be wholly unsustainable.
23.We regard our inability to accept the contentions of the learned Additional Solicitor General that even in a case of this nature we
would shut our eyes to the realities of case and allow gross injustice meted to a citizen of India to be perpetu- ated on mere technicalities.
24.Moreover, we have noticed hereinbefore that the learned coun- sel for the appellant stated before us that even the recommendations of the Court of Enquiry had not been produced before the High Court. If that be so, even at that stage, the ap- pellant did not have the advantage of
abetter assistance from his counsel.
25.The question, however, which arises for consideration is the relief which can be granted to the appel- lant. He has already undergone the sentence. He has not been working since 1991. He had also remained in Hospital for a long time. Although, thus, it is not possible for us to grant him all the prayers made in his writ petition before the High Court, we are of the opinion that keeping in view the peculiar facts and circum- stances of this case, interest of justice would be met if it is directed that he should be deemed to have been discharged from 7.9.1991. He would, thus, be entitled to all bene ts aris- ing therefrom. The appeal is allowed in part and to the extent mentioned hereinbefore. However, in the facts and circumstances of this case, there shall be no order as to costs.
| 534 | Sheel Kr. Roy v. Secretary M/O Defence 2007 |
Chapter 48
Ram Sunder Ram v. Union of India 2007
| Ram Sunder Ram v. | Union Of | has been preferred by Ram Sunder | |||
| India & Ors on 11 July, 2007 | Ram (appellant herein) against the | ||||
| Author: L S Panta | judgment and order dated 10.12.2004 | ||||
| of a Division Bench of the High | |||||
| Bench: T Chatterjee, L S Panta | |||||
| Court of Calcutta by which M.A.T. | |||||
| CASE NO.: | |||||
| No.2856 of 1997 led by the Union | |||||
| Appeal (civil) 2951 of 2007 | of India and Others (respondents | ||||
| PETITIONER: | herein) was allowed and the judg- | ||||
| ment and order dated 07.08.1997 of | |||||
| Ram Sunder Ram | |||||
| a learned Single Judge, allowing the | |||||
| RESPONDENT: | Writ Petition (C.O. No.12843 (W) | ||||
| Union of India & Ors | No.1991) led by the appellant, was | ||||
| DATE | OF | JUDGMENT: | set aside. | ||
| 11/07/2007 | 3. The appellant led writ peti- | ||||
| BENCH: | tion in the High Court of Calcutta | ||||
| for setting aside the order of dis- | |||||
| Tarun Chatterjee | & | Lokeshwar | |||
| charge from the Army Service passed | |||||
| Singh Panta | by the Commander, 33 Corps Ar- | ||||
| JUDGMENT: | tillery Brigade (respondent No.5 in | ||||
| J U D G M E N T | the present appeal) who was compe- | ||||
| [Arising | out of | S. | L. P. (C) | tent authority under Rule 13 of the | |
| No.5536 of 2005] | Army Rules 1954. | ||||
| LOKESHWAR SINGH PANTA, | 4. The learned Single Judge al- | ||||
| lowed the writ petition inter alia on | |||||
| J. | the ground that the principles of nat- | ||||
1.Special leave granted. ural justice have not been followed by
2.This appeal, by special leave, the competent authority while pass-
| 536 | Ram Sunder Ram v. Union of India 2007 | |||||||||
| ing the order of discharge. | tained for interrogation under cus- | |||||||||
| 5. | The respondents then | pre- | tody. | During | interrogation, | the | ||||
| ferred writ appeal before the Division | appellant made confessional state- | |||||||||
| Bench of the High Court, which al- | ment of receiving illegal money of | |||||||||
| lowed the same by the judgment and | Rs. | 12,500/- from one Shri Rajen- | ||||||||
| order impugned by the appellant in | dra Singh, owner of Pansari Shop, | |||||||||
| this appeal before us. | for sale of 87 MT Gas through BPLs | |||||||||
| and Kerbside Pump, kept by Dvr. | ||||||||||
| 6. | On 26.09.1980, the appellant | |||||||||
| Gde 11 Ramakant Prasad of A Coy | ||||||||||
| was appointed as Cleaner in Clas- | 5033 ASC Bn (MT). The appellant | |||||||||
| sIV with the Indian Armed Forces. | later on deposited Rs. 5,200/- out of | |||||||||
| On | 23.09.1983, | he became LDC | Rs.12,500/-. | |||||||
| in | the | Army establishment. | On | 8. The court of inquiry was com- | ||||||
| 03.07.1988, the appellant was de- | ||||||||||
| pleted and on 24.08.1988 the enquiry | ||||||||||
| puted to perform the duties of Petrol, | ||||||||||
| Oil and Lubricants (POL) Clerk. On | report was submitted to the compe- | |||||||||
| 09.08.1988, the competent authority | tent authority. | |||||||||
| ordered convening of the court of in- | 9. | The appellant, having | been | |||||||
| quiry based upon certain anonymous | found guilty of prejudicial act to | |||||||||
| complaints, on the following issues: | good order and military discipline, | |||||||||
| A. Investigating | the circumstances, | was charged under Section 63 of the | ||||||||
| under which quantity 70 KL of 70 | Army Act, 1950 [for short the Army | |||||||||
| MT Gas issued to 5033 ASC Bat- | Act]. | On 08.08.1989, Major H. S. | ||||||||
| talion against IOC installation, New | Dhillon, Presiding O cer, Summary | |||||||||
| Jalpaiguri, has not been received by | of Evidence, sent a letter to the ap- | |||||||||
| the Unit and pinpoints the responsi- | pellant and LDC J.P. Singh direct- | |||||||||
| bility for the loss. | ing them to be present on 9th Au- | |||||||||
| B. To scrutinize the records for | gust, 1989 at 1000 Hrs. for record- | |||||||||
| the last two years and also to exam- | ing summary evidence. The evidence | |||||||||
| ine the procedure | was | collected by the court of in- | ||||||||
| quiry against the appellant and some | ||||||||||
| being followed for receipt, de- | ||||||||||
| other Army O cials. On 03.07.1991, | ||||||||||
| mand, collection and accounting the | the appellant was informed by re- | |||||||||
| issue of POL in the operation of | spondent No. | 5 that while work- | ||||||||
| Kerbside Pump. | ing with A Coy 5033 ASC Bn (MT), | |||||||||
| C. To indicate loopholes and sug- | ||||||||||
| the appellant received Rs. 12,500/- | ||||||||||
| gest remedy and measures. | as illegal money from Shri Rajen- | |||||||||
| D. To indicate losses other than | dra Singh, owner of Pansari shop | |||||||||
| those mentioned in the order. | and converted the said amount to | |||||||||
| 7. The court of inquiry delib- | self use, well knowing it to be from | |||||||||
| erations was held by the author- | sale of 87 MT Gas through BPLs | |||||||||
| ity between the period commencing | and Kerbside Pump, kept by Dvr. | |||||||||
| from 16.08.1988 and 12.12.1988. On | Gde 11 Ramakant Prasad of A Coy | |||||||||
| 06.10.1988, the | appellant was | de- | 5033 ASC Bn (MT). He was, there- | |||||||
537
fore, asked to show cause within 15 days of the receipt of the no- tice as to why his services should not be terminated for the lapse com- mitted by him. After the appellant showed cause on 13.08.1991 which was found unsatisfactory, the respon- dent No.5 discharged him from ser- vice on 09.09.1991.
10.The appellant challenged the order of discharge from service in the High Court of Calcutta. The learned Single Judge, as stated above, set aside the said order of discharge in- ter alia on the ground of violation of the principles of natural justice and directed the respondents to rein- state the appellant with 25% of his arrear salaries as per the last pay drawn. Further, it was observed that the Army Authority was not pre- vented from taking appropriate steps against the appellant in accordance with law, if they so advised and tech- nicalities alone ought not to stand in the way in that regard. In writ ap- peal, the order of the learned Single Judge came to be set aside by a Di- vision Bench of the High Court and the Writ Petition led by the appel- lant was accordingly dismissed.
11.Hence, this appeal by the ap- pellant.
12.Capt. K. S. Bhati, learned counsel appearing for the appellant, argued as a question of law that the order of removing the appellant from service was vitiated being contrary to Section 63 of the Army Act, which provides for imposing any kind of punishment only after conviction by court martial. He contended that the proceedings of the court of inquiry
have been used as evidence against the appellant contrary to Rule 12 of the Army Rules, 1954 [hereinafter re- ferred to as the Army Rules] as no discharge certi cate required to be furnished under the provisions of Sec- tion 23 of the Army Act was prepared and sent to the appellant.
13.It was argued for the ap- pellant that the court of inquiry, acting under the Army Rules, col- lects evidence during fact nding proceedings and no one is accused or charged of any o ence in that pro- ceedings. It was argued that the ev- idence collected during court of in- quiry is not admissible against the appellant in view of Section 63 of the Army Act under which the case should have been remanded for trial by court martial as was done in the case of other army personnel, who were dealt with by court martial and they were retained in service by im- posing minor punishment upon them whereas the appellant was discharged from service, as a result thereof his entire past service has been forfeited and he has been deprived of the ben- e t of pension as also future employ- ment in any other civil service. The learned counsel contended that the appellant was administratively dis- charged from service contrary to the provisions of Section 63 and there is no provision to impose major penalty in the form of termination of service of the appellant by the respondent No.5 under the guise of discharge from service in exercise of power un- der Section 20 of the Army Act.
14.Mr. Vikas Singh, learned ASG appearing for the respondents,
| 538 | Ram Sunder Ram v. Union of India 2007 |
on the other hand, made submis- sions to support the judgment of the Division Bench of the High Court. He contended that the well reasoned judgment of the Division Bench does not su er from any in rmity or per- versity, warranting interference by this Court. He contended that the authority empowered under Rule 13 of the Army Rules has passed the order of discharge simpliciter under Section 22 of the Army Act and Sec- tion 20 appears to have been wrongly mentioned by the authority in the or- der of discharge.
15.We have given our thought- ful and anxious consideration to the respective contentions of the parties and have perused the entire material on record.
16.It is an admitted case of the parties that the appellant is governed by the provisions of the Army Act and the Army Rules framed thereun- der. The scheme of the Army Act is fairly clear. Chapter IV of the Act deals with Conditions of Service of persons subject to the Army Act.
17.Section 20 of the Act deals with dismissal, removal or reduction by the Chief of the Army Sta and by other o cers. Section 191 of the Act empowers the Central Govern- ment to make rules for the purpose of carrying into e ect the provisions of the Army Act. In exercise of the said power, the Central Government has framed the rules called The Army Rules, 1954. Chapter III of the Army Rules deals with dismissal, discharge, etc. Chapter V of the Army Rules deals with investigation of charges and trial by court martial. Rule 13
tabulates the category of the Army o cial, causes/grounds of discharge, the authorities competent to pass the order of discharge and the manner of discharge.
18. It is not in dispute that the appellant has been discharged under Rule 13 column 2 (v) of the Table below sub-rule (3) on the grounds of all other classes of discharge by Brigade/Sub-Area Commander who, admittedly, was competent authority to authorize discharge of the appel- lant. Column 4 of the Table provides manner of discharge, which reads as under:
The Brigade or Sub-Area Com- mander before ordering the discharge shall, if the circumstances of the case permit give to the person whose dis- charge is contemplated an opportu- nity to show cause against the con- templated discharge.
19. The order of discharge of the appellant from the Army ser- vice has been passed by the compe- tent authority under Section 22 of the Army Act read with Rule 13 on the grounds covered under col- umn (2)(v) of the Table, after a ord- ing adequate opportunity to him of showing cause before the said order of discharge came to be passed. We are, however, satis ed on the mate- rial placed before us that the court of inquiry was formed under Rule 177 of the Army Rules and the pur- pose of court of inquiry was to col- lect the evidence for the informa- tion of superior o cers to make up their mind about the involvement of the appellant and the other army of-cials in the racket of clandestine
539
sale of petrol. In the court of in- quiry, the appellant was heard and was given proper and adequate op- portunity to cross-examine the wit- nesses, which he did not choose to avail. The respondents, in Para 20 of the counter a davit led in opposi- tion to the writ petition before the High Court, have made categorical statement that in the court of inquiry the appellant was given full opportu- nity to defend his case and to cross- examine the witnesses who appeared and deposed before the Recording O cer, but the appellant was just sitting throughout the proceedings and did not avail the opportunity of cross-examining the witnesses. The appellant has not denied this asser- tion of the respondents in the rejoin- der a davit.
20. As noticed above, the ap- pellant had shown cause vide re- ply dated 13.08.1991 (Annexure P6) to the show cause notice dated 03.07.1991 (Annexure P5) issued to him by respondent No.5. The com- petent authority considered the re- ply of the appellant in right perspec- tive and found the same not satisfac- tory. Therefore, on 09.09.1991, the competent authority passed the or- der of discharge (Annexure P7) of the appellant from the army ser- vice with immediate e ect in exer- cise of the power under Section 20 of the Army Act. It appears that the competent authority has wrongly quoted Section 20 in the order of dis- charge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act. It is well settled that if
an authority has a power under the law merely because while exercising that power the source of power is not speci cally referred to or a ref- erence is made to a wrong provision of law, that by itself does not vi- tiate the exercise of power so long as the power does exist and can be traced to a source available in law [see N. Mani v. Sangeetha Theatre & Ors. (2004) 12 SCC 278]. Thus, quoting of wrong provision of Sec- tion 20 in the order of discharge of the appellant by the competent au- thority does not take away the juris- diction of the authority under Sec- tion 22 of the Army Act. Therefore, the order of discharge of the appel- lant from the army service cannot be vitiated on this sole ground as con- tended by the learned counsel for the appellant. A plain reading of the or- der of discharge shows that it is an order of termination of service sim- pliciter without casting or attaching any stigma to the conduct of the ap- pellant, therefore the said order can- not be termed to be punitive in na- ture or prejudicial to the future em- ployment of the appellant in getting employment in civil service. Thus, the contention of the learned counsel for the appellant that the order of discharge is punitive in nature does not merit acceptance.
21. The Division Bench of the High Court has noticed the decisions of this Court relied upon by the ap- pellant in the cases of Ex. Naik Sar- dar Singh v. Union of India & Ors. [AIR 1992 SC 417], Major Suresh Chand Mehta v. The Defence Sec- retary (U.O.I.) & Ors. [AIR 1991
| 540 | Ram Sunder Ram v. Union of India 2007 |
SC 483], Lt. Col. Prithi Pal Singh Bedi v. Union of India & Ors. [AIR 1982 SC 1413] and S. N. Mukherjee v. Union of India [(1990) 4 SCC 594]. In the said decisions, this Court has dealt with the matter of imposition of punishment on Army o cials who were subjected to court martial pro- ceedings. In S. N. Mukherjees case (supra), this Court was dealing with the requirement of recording of rea- sons by an authority exercising quasi- judicial function, besides challenge to the court martial proceedings. Re- liance was placed on Paragraph 13 of the judgment of this Court in the case of Major Suresh Chand Mehta (supra). In that case, this Court held that the court of inquiry, as provided under Rule 177 of the Army Rules, is merely held for the purpose of col- lecting evidence and if so required, to
report in regard to any matter which may be referred to the o cers and such an inquiry is for the purpose of a preliminary investigation and can- not be equated with a trial or court martial. All the above cited decisions are of no assistance to the appellant in the peculiar facts of the case on hand. We are satis ed that there is ample evidence on record in support of the judgment and order of the Di- vision Bench of the High Court and there is nothing that would justify this Court interfering with it. There- fore, the above arguments of the ap- pellant are unacceptable to us.
22. For the reasons discussed above, the appeal is devoid of merit and it is, accordingly, dismissed. The judgment and order of the Division Bench is a rmed. The parties, how- ever, are left to bear their own costs.
Chapter 49
Union of India and another v. SPS Vains 2008
Union of India and another v. SPS Vains (Retd.) (Altamas Kabir and Markandey Katju, JJ.)
Union of India and another - Appellant(s) v. SPS Vains (Retd.) and others - Respondent(s)
Civil Appeal No. 5566 of 2008, decided on September 9, 2008 [@ Special Leave Petition (Civil) No. 12357 of 2006]
The judgment of the Court was delivered by Altamas Kabir, J.
1.Leave granted.
2.Interlocutory Application No.2 of 2006 led by Major General S.C. Suri (Retd.) and 67 others sim- ilarly placed as the respondents is al- lowed.
3.Only a very limited issue falls for our consideration in this appeal which has been led by the Union of India through the Secretary, Min- istry of Defence and the Chief of Army Sta through the Adjudant General Army Headquarters, New Delhi, against the judgment and or-
der of the Punjab and Haryana High Court allowing the writ petition led by the respondents herein with the following directions : "For the fore- going reasons, the writ petition is allowed and the respondents are di- rected to x minimum pay scale of the Major General above that of the Brigadier and grant pay above that of a Brigadier as has been done in the case of post 1.1.1996 retirees and con- sequently x the pension and family pension accordingly. There shall be no order as to costs."
4. As would be evident from the above, the primary question which falls for decision in this appeal is whether the High Court had in the exercise of its jurisdiction correctly directed that o cers of the rank of Major General, who had retired prior to 1st January, 1996, when revision of pay scales took e ect, be given the bene t of the provisions of the re- vised pay scale, notwithstanding the fact that in terms of the policy only those who retired after the said cut-
| 542 | Union of India and another v. SPS Vains 2008 |
o date would be entitled to such bene t. The larger issue involved is whether there could be a disparity in payment of pension to o cers of the same rank, who had retired prior to the introduction of the revised pay scales, with those who retired there- after.
5. The case which has been made out in the High Court in the writ pe- tition led by the respondent herein is that prior to revision of the pay scales from 1.1.1996 the running pay band from Lieutenant to Brigadier, irrespective of promotion, introduced on the basis of the Fourth Pay Commission's recommendations, was Rs.2300-100-3900-EB- 150-4500-EB- 5100. The rank pay that was xed was Rs.200/-, 600/-, 800/-, 1000/- and 1200/- for the ranks of Captain, Major General, Lieutenant Colonel, Colonel and Brigadier, respectively. While a Major General was given a starting salary of Rs.6700/- on the basis of the recommendations of the Fourth Pay Commission, a Brigadier could draw Rs.5,100/- and additional rank pay of Rs.1200/- making a total of Rs.6300/-. Consequently, a Major General always drew higher pay than a Brigadier and the pension payable to o cers on the basis of the recom- mendations of the Fourth Pay Com- mission was calculated on the basis of salary drawn during the last 10 months prior to retirement. Even on such basis, a Major General al- ways drew more pension and fam- ily pension than a Brigadier. It has to be kept in mind that the rank of Brigadier is a feeder post for the pro- motional rank of Major General.
6.The anomaly arose with the acceptance by the Government of the recommendations of the Fifth Pay Commission which has created
asituation whereby Brigadiers began drawing more pay than Major Gen- erals and were, therefore, receiving higher pension and family pension than Major Generals. In view of the recommendations of the Fifth Pay Commission, a Brigadier was given a pay scale of Rs.15350-450-17600 to- gether with rank pay of Rs.2,400/- whereas a Major General was given a pay scale of Rs.18400- 500-22400. In other words, the maximum pay in the pay scale of Brigadier is 17,600/- and the minimum pay in the pay scale of Major General is Rs.18,400/-. Inas- much as, no rank pay was provided for beyond the rank of Brigadier, the minimum pay provided for a Major General became less than that of a Brigadier who may had reached the maximum point in his scale. Con- sequently, on retirement, the pen- sion of a Brigadier became more than that of a Major General, since rank pay is also taken into consideration for the purpose of calculating pen- sion and family pension. The pen- sion of a Major General thus became Rs.9,200/-, while that of a Brigadier was Rs.9,550/-.
7.It is this anomaly, when pointed out, which prompted the Government to step up the pension of Major Generals who had retired prior to 1.1.1996, from Rs.9,200/- to Rs.9,550/- giving them the same pen- sion as was given to Brigadiers. Be- fore the High Court it was urged on behalf of the writ petitioners, who
543
at the time of their retirement had held the rank of Major General or Air Vice Marshal, that while the writ petitioners and others similarly placed o cers who had retired prior to 1.1.1996 were given the same pen- sion as that of a Brigadier, those of-cers of similar rank who had retired after 1.1.1996 were given pension ac- cording to clause 12(c) of Special Army Instructions 2/S/1998, as a re- sult whereof they were getting much higher pension and family pension than the writ petitioners, despite be- ing of the same rank. It was pointed out that by virtue of the aforesaid Special Instruction the initial pay of an o cer promoted to the rank of Major General would be xed at the stage next above the pay notionally arrived at by increasing his pay, in- cluding rank pay of Brigadier, by one increment in the revised scale at the relevant stage. It is this classi ca- tion within a class which led to theling of the writ petition before the High Court. Before the High Court it was urged further that such di er- entiation between o cers holding the same rank on the date of retirement was wholly erroneous and violative of the provisions of Article 14 of the Constitution.
8.Rejecting the submissions made on behalf of Government that there could be no fresh xation of pay once an o cer had retired and the only re xation possible would be that of pension, the High Court al- lowed the writ petition and disposed of the same with the directions indi- cated hereinabove.
9.The said decision of the High
Court has been questioned in this ap- peal by the Union of India and the Chief of Army Sta .
10.Before us, the Union of In- dia has taken a stand that the High Court misinterpreted the policy re- lating to xation of pay of o cers of the Defence Services and had also misunderstood the scope of the pol- icy with regard to those o cers who had retired prior to the revision of the pay scales and that their pay scales had already been revised at the time of their superannuation from service. In their case, therefore, the question of revision of pay scale could not arise and they could only claim that their pension, including family pension, should not be lower than that of a Brigadier which is a feeder post for the post of Major General having higher and more onerous re- sponsibilities.
11.In this regard reference was made to a communication dated 7.6.1999 addressed to the Chiefs of the three wings of the Defence Ser- vices on behalf of the Ministry of Defence, Government of India, in which a di erentiation appears to have been made between o cers who had retired prior to 1.1.1996 and
| those who | retired thereafter since |
| a reference | was made to two of |
the Ministry's letters dated 3.2.1998 dealing with post 1.1.1996 and the other dated 24.11.1997 dealing with pre 1.1.1996 cases.
12. Reference was also made to Special Army Instruction dated 19.12.1997 indicating that in pur- suance of the recommendations of the Fifth Central Pay Commission
| 544 | Union of India and another v. SPS Vains 2008 |
and the Government decision there- upon, the existing pay scales admissi- ble to Army O cers would be revised with e ect from January, 1996. The said Instruction also indicated that the said provisions would apply to all o cers who were on the e ective strength of the Army as on 1.1.1996 and those who joined thereafter, and also to trainee o cers who were un- dergoing Pay Commission training on 1.1.1996 and trainee o cers who joined after the said date. Reference was also made from the said Instruc- tion to paragraph 9 thereof dealing with the stepping up of pay of Major Generals on promotion from the rank of Brigadier prior to 1.1.1996. In the said paragraph it has been speci - cally indicated that pay of all o - cers promoted to the rank of Major General prior to 1.1.1996 would be stepped up to become equal to the pay xed for Brigadiers in the revised pay scale as on 1.1.1996, subject to certain conditions.
13.Yet another communication to the three Chiefs of the Defence Services dated 3.2.1998 issued by the Ministry of Defence, Government of India relating to the implementation of the Government's decision on the recommendations of the Fifth Cen- tral Pay Commission regarding pen- sionary bene ts for o cers and per- sonnel below o cers rank belonging to the armed forces, retiring on or af- ter 1.1.1996, which would, however, have no application to those who had superannuated prior to 1.1.1996.
14.Learned Additional Solici- tor General submitted that the Min- istry of Defence, Government of In-
dia, had taken a considered decision in xing 1.1.1996 as a cut-o date since the pay scales were revised with e ect from the said date, and the pay scales of o cers who had retired prior to the said date had already been xed and there was no ques- tion of re xation of their pay scales and all they were entitled to was pen- sion which was not less than that re- ceived by Brigadiers who had been given the bene t of the revision of pay scales and, were, therefore, draw- ing a higher salary resulting in higher pension.
15.The learned Additional So- licitor General urged that the High Court had erred in directing that the pay of Major Generals who had re- tired prior to 1.1.1996 be re xed ac- cording to the revised pay scales so as to give them the bene t of higher pension than o cers of the rank of Brigadier.
16.The case of the respondents however, was that in view of the Constitution Bench decision of this Court in D.S. Nakara and others v. Union of India (1983) 1 SCC 305, the xation of a cut-o date as a re- sult of which equals were treated as unequals, was wholly arbitrary and had been rightly interfered with by the High Court. One of the ques- tions posed in the aforesaid decision was whether a class of pensioners could be divided for the purpose of entitlement and payment of pension into those who retired by a certain date and those who retired there- after. The question was answered by the Constitution Bench holding that such division being both arbi-
545
trary and unprincipled the classi ca- tion did not stand the test of Article 14.
17.Several other decisions were also relied upon by the respondents, which, in fact, followed D.S. Nakara's case (supra) and there is, therefore, no need to deal with them separately.
18.It was also the respondents' case that though there was no dis- pute that Major Generals were en- titled to higher pensionary bene ts than that enjoyed by Brigadiers, the appellant erroneously insisted that the cut-o date had to be xed in view of the limited nancial resources available to cover the additional ex- penses to be incurred on account of revision of pay scales.
19.On behalf of the respon- dents reliance was also placed on two letters addressed by the Chairman, Chief of Sta Committee, dated 8.2.2006 and 21.2.2006, along with the recommendation made by the Air Chief Marshal on 17.2.2006, stat- ing that it was necessary to cor- rect the injustice and discrimination which had been aimed at denying those o cers who had retired prior to 1.1.1996, the bene ts of the pen- sion enjoyed by o cers who retired after the said date.
20.Mr. Nidhesh Gupta, learned Senior Counsel who appeared for the respondents, submitted that the judgment of the High Court did not call for any interference as the same had been rendered on the touchstone of Article 14 of the Constitution and in consonance with the principle of administrative fair play. He submit-
ted that o cers of the rank of Ma- jor General, who had retired prior to 1.1.1996 should not be made the target of the bureaucratic error com- mitted by the Government in re x- ing the scale of pay of Brigadiers af- ter 1.1.1996 in such a manner so that by adding the rank pay to their ba- sic pay, their pay at the time of re- tirement was higher than that of a Major General which was a superior rank, thereby creating an anomaly in the pension entitlement of o cers of the two aforesaid ranks.
21.Mr. P.N. Lekhi, learned se- nior counsel who appeared for the added respondents, while adopting Mr. Gupta's submissions referred to the decision of this Court in R.Viswan and others v.. Union of India and others, (1983) 3 SCC 401, on the question of morale and sub- mitted that the arbitrary decision to discriminate between the two sets of o cers belonging to the same rank in the matter of payment of pension was bound to adversely e ect the morale of senior o cers of the rank of Major General which was in fact the feeder post to the rank of Lieutenant Gen- eral from amongst whom the Chief of Army Sta is ultimately chosen.
22.From the submissions made the dispute appears to be con ned only to the question whether o cers of the rank of Major General in the army and of equivalent rank in the two other wings of the Defence forces, who had retired prior to 1.1.1996, have been validly excluded from the bene t of the revision of pay scales in keeping with the recommendations of the Fifth Central Pay Commission
| 546 | Union of India and another v. SPS Vains 2008 |
by virtue of Special Army Instruction 2(S)98.
23.On behalf of the appellant, Union of India, it has been sought to be contended that since the pay scale of those o cers who had re- tired prior to 1.1.96 had already beenxed at the time of their retirement, the question of re xation of their pay scales on account of the revi- sion could not be accepted as they would only be entitled to the bene ts of higher pension on account of such revision. The learned Additional So- licitor General, Mr. Vikas Singh, had contended that since an anomaly had been created in the pension payable to o cers of the rank of Major Gen- erals, who on account of the revision of pay scales were receiving less pen- sion than Brigadiers who were lower in rank, the Government had stepped up the pension of Major Generals who had retired prior to 1.1.1996, so that they did not receive pension less than what was given to o cers of the rank of Brigadier.
24.The said decision of the Cen- tral Government does not address the problem of a disparity having cre- ated within the same class so that two o cers both retiring as Major Generals, one prior to 1.1.1996 and the other after 1.1.1996, would get two di erent amounts of pension. While the o cers who retired prior to 1.1.1996 would now get the same pension as payable to a Brigadier on account of the stepping up of pen- sion in keeping with the Fundamen- tal Rules, the other set of Major Gen- erals who retired after 1.1.1996 will get a higher amount of pension since
they would be entitled to the bene-t of the revision of pay scales after 1.1.1996.
25.In our view, it would be arbi- trary to allow such a situation to con- tinue since the same also o ends the provisions of Article 14 of the Con- stitution.
26.The question regarding cre- ation of di erent classes within the same cadre on the basis of the doc- trine of intelligible di erentia having nexus with the object to be achieved, has fallen for consideration at vari- ous intervals for the High Courts as well as this Court, over the years. The said question was taken up by
aConstitution Bench in the case of D.S. Nakara (supra) where in no un- certain terms throughout the judg- ment it has been repeatedly observed that the date of retirement of an em- ployee cannot form a valid criterion for classi cation, for if that is the cri- terion those who retired by the end of the month will form a class by them- selves. In the context of that case, which is similar to that of the in- stant case, it was held that Article 14 of the Constitution had been wholly violated, inasmuch as, the Pension Rules being statutory in character, the amended Rules, specifying a cut- o date resulted in di erential and discriminatory treatment of equals in the matter of commutation of pen- sion. It was further observed that it would have a traumatic e ect on those who retired just before that date. The division which classi ed pensioners into two classes was held to be arti cial and arbitrary and not based on any rational principle and
547
whatever principle, if there was any, had not only no nexus to the objects sought to be achieved by amending the Pension Rules, but was counter productive and ran counter to the very object of the pension scheme. It was ultimately held that the clas- si cation did not satisfy the test of Article 14 of the Constitution.
27. The Constitution Bench has discussed in detail the objects of granting pension and we need not, therefore, dilate any further on the said subject, but the decision in the aforesaid case has been consis- tently referred to in various subse- quent judgments of this Court, to which we need not refer.
28.In fact, all the relevant judgments delivered on the subject prior to the decision of the Constitu- tion Bench have been considered and dealt with in detail in the aforesaid case.
29.The directions ultimately given by the Constitution Bench in the said case in order to resolve the dispute which had arisen, is of rele- vance to resolve the dispute in this case also.
30.However, before we give such directions we must also observe that the submissions advanced on behalf of the Union of India cannot be ac- cepted in view of the decision in D.S. Nakara's case (supra). The object sought to be achieved was not to cre-
ate a class within a class, but to en- sure that the bene ts of pension were made available to all persons of the same class equally. To hold other- wise would cause violence to the pro- visions of Article 14 of the Consti- tution. It could not also have been the intention of the authorities to equate the pension payable to o - cers of two di erent ranks by resort- ing to the step up principle envisaged in the Fundamental Rules in a man- ner where the other o cers belonging to the same cadre would be receiving a higher pension.
31. We, accordingly, dismiss the appeal and modify the order of the High Court by directing that the pay of all pensioners in the rank of Ma- jor General and its equivalent rank in the two other Wings of the Defence Services be notionally xed at the rate given to similar o cers of the same rank after the revision of pay scales with e ect from 1.1.1996, and, thereafter, to compute their pen- sionary bene ts on such basis with prospective e ect from the date ofling of the writ petition and to pay them the di erence within three months from date with interest at 10% per annum. The respondents will not be entitled to payment on ac- count of increased pension from prior to the date of ling of the writ peti- tion. 32. The appeal is accordingly dismissed. 33. There will be no order as to costs.
| 548 | Union of India and another v. SPS Vains 2008 |
Chapter 50
P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008
P.K. Choudhury v. Commander, 48 BRTF(GREF) on 13 March, 2008 Author: S Sinha Bench: S Sinha, V Sirpurkar
CASE NO.:
Appeal (crl.) 480 of 2008
PETITIONER:
P.K. Choudhury
RESPONDENT:
Commander, 48 BRTF (GREF)
DATE OF JUDGMENT: 13/03/2008
BENCH:
S.B. Sinha V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 480 OF 2008
(Arising out of SLP (Crl.) No. 5911 of 2006)
S.B. Sinha, J.
Leave granted.
1.Appellant herein is aggrieved by and dissatis ed with a judgment and order dated 21st March, 2006 passed by a learned Single Judge of the Gauhati High Court.
2.Indisputably, Appellant at all material times was a Commandant of 48 BRTF (GREF) as a member of the Armed Forces. While he was acting in the said capacity, allega- tions were made against him for com- mission of o ences under Section 166 and 167 of the Indian Penal Code, 1860.
3.The period during which the said o ences are said to have been committed is 5.1.1989 to 11.2.1992.
Acomplaint petition was led in November, 2000 purported to be on the basis of a report dated 20.12.1996 of the then Commander, 48 BRTF at Tezu on 20.12.1996.
The Judicial Magistrate, First
550 P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008
Class, Tezu took cognizance of the said o ences against the appellant by an Order dated 7.11.2000.
4.The application led by the appellant under Section 482 of the Code of Criminal Procedure, 1973 for quashing the said proceedings has been dismissed by the Gauhati High Court by reason of the impugned judgment.
5.Mr. Nagendra Rai, the learned senior counsel appearing on behalf of the appellant would submit that the order taking cognizance is bad in law as the same was led beyond the pre- scribed period of limitation and in any event was not preceded by a valid order of sanction of the competent authority as envisaged under Section
197of the Code of Criminal Proce- dure.
6.Section 166 and 167 of the In- dian Penal Code provides for an of- fence by a public servant.
Whereas Section 166 prescribes a sentence of simple imprisonment for a term which may extend to one year; the sentence which can be imposed under Section 167 is one of either de- scription for a term which may ex- tend to three years or with ne or with both.
7. Section 468 of the Code of Criminal Procedure, 1973 speci es the period of limitation within which the cognizance of an o ence can be taken. Clause (c) of Sub-section (2) of Section 468 speci es the period of limitation to be three years if the o ence is punishable with imprison- ment for a term exceeding one year but not exceeding three years.
8. There is no doubt or dispute that the Court has the power to con- done the delay. No order condoning the delay has however, been passed by the learned Judicial Magistrate in this case.
The ground taken for condona- tion of delay in the said complaint pe- tition of the complainant is as under:-
"8. That a Court of Inquiry was held by the Department against the irregularities in Supply Orders and thereafter the case was under con- sideration by Army HQ. The Cen- tral Vigilance Commission alsoinves tigated the matter since 20 Dec. 1996 and on the completion of investiga- tion by CVC, the matter was barred by limitation for taking action under the Army Act against the accused. Hence the delay in ling this com- plaint in the Court and the delay may be condoned under Section 473 Cr.P.C. as the delay was not inten- tional but inevitable in holding Court of Inquiry."
9. The learned Judicial Mag- istrate did not apply his mind on the said averments. It did not is- sue any notice upon the appellant to show cause as to why the delay shall not be condoned. Before con- doning the delay the appellant was not heard. In State of Maharash- tra v. Sharadchandra Vinayak Don- gre and Others [(1995) 1 SCC 42] this Court held; "5. In our view, the High Court was perfectly justi-ed in holding that the delay, if any, for launching the prosecution, could not have been condoned without no- tice to the respondents and behind their back and without recording any
551
reasons for condonation of the delay. However, having come to that con- clusion, it would have been appro- priate for the High Court, without going into the merits of the case to have remitted the case to the trial court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court however, did not adopt that course and proceeded further to hold that the trial court could not have taken cognizance of the o ence in view of the application led by the prosecution seeking permission of the Court to le a "supplementary charge-sheet" on the basis of an "in- complete charge-sheet" and quashed the order of the CJM dated 21-11- 1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous."
10.In view of the aforesaid de- cision, there cannot be any doubt whatsoever that appellant was enti- tled to get an opportunity of being heard before the delay could be con- doned.
11.Far more important however, is the question of non-grant of sanc- tion. Appellant admittedly is a pub- lic servant. He is said to have mis- used his position as a public servant.
Section 197 of the Code of Crim- inal Procedure lays down require- ments for obtaining an order of sanc- tion from the competent authority, if in committing the o ence, a pub- lic servant acted or purported to act in discharge of his o cial duty. As the o ences under Section 166 and 167 of the Indian Penal Code have
a direct nexus with commission of a criminal misconduct on the part of a public servant, indisputably an order of sanction was pre-requisite before the learned Judicial Magistrate could issue summons upon the appellant.
12.Respondents in their counter a davit, however, would contend that no such sanction was required to be taken as the appellant would be governed by the provisions of Section
125and 126 of the Army Act, 1950. The said provisions in our considered opinion have no application whatso- ever.
13.Section 125 of the Act pos- tulates a choice of the competent au- thority to try an accused either by a criminal court or any court or pro- ceedings for court martial. Section
126provides for the power of the Criminal Court to require delivery of o ender.
14.As an option to get the ap- pellant tried in a ordinary criminal court had been exercised by the re- spondent, there cannot be any doubt whatsoever that all the pre-requisites therefor in regard to the period of limitation as also the necessity to ob- tain the order of sanction were re- quired to be complied with.
A Court of law cannot take cog- nizance of an o ence, if it is barred by limitation. Delay in ling a com- plaint petition therefore has to be condoned. If the delay is not con- doned, the court will have no ju- risdiction to take cognizance. Simi- larly unless it is held that a sanction was not required to be obtained, the court's jurisdiction will be barred.
552P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008
15.Section 197 of the Code un- and Ors. [2008 (2) SCALE 303],
| like the provisions of the Prevention | having regard to the 41st Report of | |||||
| of Corruption Act postulates obtain- | the Law Commission, this Court ob- | |||||
| ing of an order of sanction even in a | served; | |||||
| case where public servant has ceased | "24. | It was in pursuance of | ||||
| to hold o ce. The requirements to | ||||||
| this observation that the expression | ||||||
| obtain a valid order of sanction have | "was" came to be employed after | |||||
| been highlighted by this Court in a | the expression "is" to make the need | |||||
| large number of cases. In S.K. Zut- | for sanction applicable even in cases | |||||
| shi and Another v. Bimal Debnath | where a retired public servant is | |||||
| and Another [(2004) 8 SCC 31], this | sought to be prosecuted." | |||||
| Court held; | It was furthermore held; | |||||
| "11. | The correct legal position, | |||||
| "26. The High Court, therefore, | ||||||
| therefore, is that an accused facing | ||||||
| was in error in observing that sanc- | ||||||
| prosecution for o ences under the old | ||||||
| Act or the new Act cannot claim any | tion was not necessary because the | |||||
| immunity on the ground of want of | expression used is "was". | |||||
| sanction, if he ceased to be a public | 16. | The High Court, therefore, | ||||
| in our opinion committed a manifest | ||||||
| servant on the date when the court | ||||||
| took cognizance of the said o ences. | error in passing the impugned judg- | |||||
| But the position is di erent in cases | ment. | |||||
| where Section 197 of the Code has | 17. | The issues raised by the ap- | ||||
| application." | pellant were jurisdictional ones. The | |||||
| See also State of Orissa through | same should have been adverted to | |||||
| Kumar Raghvendra Singh and Oth- | by the High Court. | |||||
| ers v. Ganesh Chandra Jew [(2004) | For the reasons aforementioned, | |||||
| 8 SCC 40]. | the impugned judgment cannot be | |||||
| Recently | in Raghunath Anant | sustained. It is set aside accordingly. | ||||
| Govilkar | v. | State | of Maharashtra | Appeal is allowed. No costs. | ||
| Union Of India | Anr v. V.N. Saxena on 1 April, 2008 Author: . A | |||||
| Pasayat Bench: D A Pasayat, P Sathasivam | ||||||
CASE NO.:
Appeal (civil) 2764 of 2007
PETITIONER:
Union of India Anr
RESPONDENT:
V.N. Saxena
DATE OF JUDGMENT: 01/04/2008
BENCH:
553
DR. ARIJIT PASAYAT P. SATHASIVAM
JUDGMENT:
JUDGMENT
CIVIL APPEAL NO. 2764 OF 2007
Dr. ARIJIT PASAYAT, J.
1.Challenge in this appeal is to the judgment of a Division Bench of the Uttranchal High Court allowing the writ petition led by the respondent. The respondent had led the writ petition under Article 226 of the Constitu- tion of India, 1950 (in short the 'Constitution') questioning the order dated 13.11.1990 whereby his services were terminated by orders of the Chief of Army Sta .
2.The High Court primarily relied on a decision of this Court in Major Radha Krishan v. Union of India Ors. (AIR 1996 SC 3091) and allowed the writ petition.
3.The stand of the appellants is that the High Court failed to notice that the relied-upon decision was held to be not correctly decided by a three judge Bench in Union of India Ors. v. Harjeet Singh Sandhu [2001(5) SCC 593].
4.Learned counsel for the respondent submitted that the decision of the High Court was not based only on Major Radha Krishan's case (supra) but on other grounds.
5.The High Court allowed the writ petition with the following conclu-
sions:
"In Major Radha Krishan v. Union of India Ors. (AIR 1996 SC 3091, the Hon'ble Apex Court has held that where the trial by Court Martial against the o ences committed by an army personnel was barred by limita- tion under Section 122 of the Act, the summary procedure for termination under R.14(2) of the Rules, cannot be followed on the ground that the trial by Court Martial was inexpedient or impracticable. Such a satisfaction that the trial was inexpedient or impracticable can be arrived only at a time when trial by a Court Martial is permissive or possible. In view of the said principle of law and for the reasons as discussed above by us, the impugned order by which the services of the petitioner were dismissed is liable to be quashed.
Accordingly the writ petition is allowed. The impugned order is quashed. The petitioner shall be entitled to the consequential bene ts, admissible (as of right) to him under the rules treating him Captain, the post he held on the date when the impugned order was passed. No order as to costs."
6. In Harjeet Singh Sandhu's case (supra) the scope and ambit of the Army Act, 1950 (in short the 'Act') and Rule 40 of the Army Rules, 1954 (in
554 P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008
short the 'Rules') inter alia fell per consideration. This court also referred to earlier decision in Chief of Army Sta v. Major Dharam Pal Kukrety [1985(2) SCC 412].
7. In Harjeet Singh Sandhu's case (supra) it was inter alia observed as follows:
37. On the meaning which we are placing on the term "impracticable" as occurring in Rule 14(2) we proceed to provide resolutions to the several problems posed by the illustrations given by the learned Additional Solicitor- General. According to us:
In Illustration (i) the expiry of the period of limitation prescribed by Section 122 renders the trial by Court Martial "impracticable" on the wider meaning of the term. There is yet another reason to take this view. Section 122 prescribes a period of limitation for the commencement of court martial proceedings but Parliament has chosen not to provide any bar of limitation on exercise of power conferred by Section 19. We cannot, by an interpretative process, read the bar of limitation provided by Section 122 into Section 19 of the Act in spite of a clear and deliberate legislative abstention. However, we have to caution that in such a case, though power under Section 19 read with Rule 14 may be exercised but the question may still be who has been responsible for the delay? The period prescribed by Section 122 may itself be taken laying down a guideline for determining the culpability of delay. In spite of power under Section 19 read with Rule 14 having become available to be exercised on account of a trial by a Court Martial having been rendered impracticable on account of bar of limitation created by Section 122, other considerations would assume relevance, such as whether the facts or set of facts constituting misconduct being three years old or more have ceased to be relevant for exercising the power under Section 19 read with Rule 14. If there was inaction on the part of the authorities resulting in delay and attracting bar of limitation under Section 122 can it be said that the authorities are taking advantage of their own inaction or default? If the answer be yes, such belated decision to invoke Section 19 may stand vitiated, not for any lack of jurisdiction but for colourable or mala de exercise of power.
38. In Illustration (ii), the Court Martial has stood dissolved for fortu- itous circumstance for which no one is to be blamed neither the Chief of the Army Sta nor the delinquent o cer. The delinquent o cer, howsoever grave his misconduct amounting to o ence may have been, would go scot- free. It would be fastidious to hold that bar of limitation under Section 122 would also exclude the exercise of power under Section 19 read with Rule 14.
41. Having thus explained the law and clari ed the same by provid- ing resolutions to the several illustrative problems posed by the learned
555
Additional Solicitor-General for the consideration of this Court (which are illustrative and not exhaustive), we are of the opinion that the expiry of period of limitation under Section 122 of the Act does not ipso facto take away the exercise of power under Section 19 read with Rule 14. The power is available to be exercised though in the facts and circumstances of an in- dividual case, it may be inexpedient to exercise such power or the exercise of such power may stand vitiated if it is shown to have been exercised in a manner which may be called colourable exercise of power or an abuse of power, what at times is also termed in administrative law as fraud on power. A misconduct committed a number of years before, which was not promptly and within the prescribed period of limitation subjected to trial by a Court Martial, and also by reference to which the power under Section 19 was not promptly exercised may cease to be relevant by long lapse of time. A subse- quent misconduct though less serious may aggravate the gravity of an earlier misconduct and provide need for exercise of power under Section 19. That would all depend on the facts and circumstances of an individual case. No hard-and-fast rule can be laid down in that behalf. A broad proposition that power under Section 19 read with Rule 14 cannot be exercised solely on the ground of court martial proceedings having not commenced within the pe- riod of limitation prescribed by Section 122 of the Act, cannot be accepted. In the scheme of the Act and the purpose sought to be achieved by Section 19 read with Rule 14, there is no reason to place a narrow construction on the term
"impracticable" and therefore on availability or happening of such events as render trial by Court Martial impermissible or legally impossible or not practicable, the situation would be covered by the expression the trial by Court Martial having become "impracticable".
43. We are also of the opinion that Major Radha Krishan case (supra) lays down propositions too broad to be acceptable to the extent it holds that once the period of limitation for trial by Court Martial is over, the authorities cannot take action under Rule 14(2). We also do not agree with the proposition that for the purpose of Rule 14(2), impracticability is a concept di erent from impossibility (or impermissibility, for that matter). The view of the Court in that case should be treated as con ned to the facts and circumstances of that case alone. We agree with the submission of the learned Additional Solicitor-General that the case of Dharam Pal Kukrety's case (supra) being a three-Judge Bench decision of this Court, should have been placed before the two-Judge Bench which heard and decided Major Radha Krishan case (supra).
8. Since the foundation of the impugned judgment of the High Court is Major Radha Krishnan's case (supra), we therefore, set aside the impugned order of the High Court and remit the matter to it for a fresh consideration keeping in view the position in law as delineated in Harjeet Singh Sandhu's
556 P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008
case (supra). Since the matter is pending long we request the High Court to dispose of the Writ Petition as early as practicable preferably by the end of September, 2008.
9. The appeal is allowed to the aforesaid extent. No costs.
Chapter 51
Bachan Singh v. Union of India 2008
| Bachan Singh | v. | Union of In- | the Rules. A General Court Martial | ||||||
| dia | (C.K. Thakker and Lokeshwar | (GCM) under the Army Act, 1950 | |||||||
| Singh Panta, JJ.) Bachan Singh - | |||||||||
| (for short `the Act) was convened | |||||||||
| Appellant v. | Union | of India & | by the competent authority on Jan- | ||||||
| Ors. | - Respondent(s) Civil Appeal | uary 4, 1982 under Section 109 of the | |||||||
| No. | 3110 of 2004, decided on July | Act to try the appellant holding the | |||||||
| 10, 2008 The judgment of the Court | rank of Sepoy in Second Batallion, | ||||||||
| was delivered by Lokeshwar Singh | the Dogra Regiment in the Army. | ||||||||
| Panta, J. Bachan Singh - appel- | The allegations against the appellant | ||||||||
| lant | is aggrieved | by the judgment | for which he was suspected to be | ||||||
| and order dated February 5, 2002 | � | ||||||||
| tried by GCM were:- No.3973649A | |||||||||
| passed by the Division Bench of the | Sep Bachan Singh of 2DOGRA is | ||||||||
| High Court of Jammu and Kashmir | resident of village Paragwal, Tehsil | ||||||||
| at Jammu allowing the LPA (SW) | Akhnoor, District Jammu (JK) S/o | ||||||||
| No. 284/97 led by the respondents | Shri Dharam Singh and step son of | ||||||||
| herein against the judgment dated | Smt. | Gyano Devi, | second | wife of | |||||
| November 20, 1996 of the learned | Shri Dharam Singh. | Sep. | Bachan | ||||||
| Single Judge of the High Court | Singh studied in Govt. Lower High | ||||||||
| whereby the learned Single Judge al- | School, Paragwal up to the 9th. He | ||||||||
| lowed SWP | No. | 14-A/1984 led | was enrolled in the Army on 11 Oct. | ||||||
| by the appellant and quashed the | 75 to Meerut in the Dogra Regt. | ||||||||
| General Court Martial held against | He is married to Smt. | Veena Ku- | |||||||
| him including con rmation of sen- | mari D/o Shri Durga Singh resi- | ||||||||
| tence passed upon him by the Gen- | dent of Village Chargarwar, Tehsil | ||||||||
| eral Court Martial and the appel- | Jammu, District Jammu (JK). Sep | ||||||||
| lant is relegated back to the posi- | Bachan Singh proceeded on annual | ||||||||
| tion he had on the date of passing of | leave w.e.f. 16 Jan 80 to 15 Mar 80 | ||||||||
| the order with all the bene ts under | to his home station village Paragwal, | ||||||||
| 558 | Bachan Singh v. Union of India 2008 |
Tehsil Akhnoor. Shri Bachan Singh S/o Shri Waryam Singh resident of Village Najwal, Tehsil Akhnoor, Dis- trict Jammu (JK) which is about 3 kms. from village Paragwal is related to Sep Bachan Singh. Sep Bachan Singhs step mother Smt. Gyano Devi is the younger sister of Shri Rattan Singhs mother Smt. Vidya Devi. During the month of Feb 80 Smt. Vidya Devi had gone over to Sep Bachan Singhs house and in- vited him and his wife over to her place. On 12 Mar 80 Sep Bachan Singh along with his wife Smt. Veena Devi and his three months old son went to Smt. Vidya Devis house. Shri Rattan Singh and Sep Bachan Singh consumed country liquor that night. At about 2130 hours Shri Rattan Singh and Sep Bachan Singh went out for a walk and while wal- ing crossed the border into PAK ter- ritory where they were met by two PAK FIU sta at Post DERA. PAK if he was in possession of his iden- tity card. Sep Bachan Singh gave his name as Narinder Singh son of Shri Surjeet Singh, his unit as 16 JK LI lo- cated at MIZORAM. PAK FIU sta gave Rs. 200/- Sep Bachan Singh when he reached his home. The next day, 13 Mar 80, Sep Bachan Singh with his family left for his home. On 15 Mar 80 Sep Bachan Singh left his village Paragwal to rejoin his unit. At 1830 hours 15 Mar 80, Sep Bachan Singh rejoined his unit, 2 DOGRA. On 04 Jul 80 Sep Bachan Singh under an escort proceeded to 168 ASC Bn on temp duty for in- terrogation at the Joint Interrogation Centre South C/o Det 4/290 Liai- son Unit C/o 56 APO and returned
�
back to the unit on 10 Aug 80.The order convening the Court Martial
�
reads as under:- FORM OF ORDER FOR THE ASSEMBLY OF A GEN- ERAL COURT MARTIAL UNDER ARMY ACT Orders by IC-5095P Major General K. Mahipat Sinhji Of-ciating General O cer Command- ing 16 Corps. Place: Field Date:15 December, 1981. No.3973649A Se- poy The details of o cers mentioned Bachan Singh 2nd below will assem- ble at Field on Batallion The Dogra the Sixteenth day of December Reg- iment 1981 for the purpose of trying by a General Court Martial the ac- cused person named in the margin (and such other person or persons as may be brought before them.) The Senior O cer to sit as Presiding O - cer. MEMBERS IC-7757L Brig. Tal- war Harjeet - Cdr 191 Inf Bde IC- 12716L Lt. Col. Borkar, Mukand Narasinha - OC 1890 Indep Lt Bty. IC-28737L Maj Vohra, Satyendra Mohan - 2 SIKH IC-25247M Capt Jagmal Singh - 37 Med Regt IC- 34139K Capt Ranjit Barkakoty - 81 Armd Regt. WAITING MEMBERS IC-13474A Lt Col. Brar, Surjit Singh - OC 28 EME Bn IC-24826M Gill Mohanjit Singh - 8 CAV IC- 35033K Capt Hari Mohan Joshi - 374 Sig Regt JUDGE ADVOCATE IC-36504Y Maj Deosthale Jayant Kumar - DAJAG HQ Northern Command is appointed Judge Ad- vocate PROSECUTOR IC-29015L Maj Valentine, Joseph Melvin - 9 MADRAS appointed prosecutor The accused will be warned, and all wit- nesses duly required to attend. The proceedings (of which only three copies are required) will be forwarded
559
to Headquarters, 16 Corps, through DJAG Headquarters Northern Com- mand. Signed this fteenth day of December, 1981. Sd/- (R.K. Kashyap) Lieutnant Colonel Assis- tant Adjutant General for O ci- ating General O cer Commanding
�
16 CorpsThe charge sheet reads as
�
under:- CHARGE SHEET The ac- cused No. 3973649A Sep Bachan Singh, 2nd Batallion The Dogra Regiment is charged with:- Army Act AN ACT PREJUDICIAL TO GOOD ORDER AND Section 63 MILITARY DISCIPLINE in that he, at Village Najwal (JK) on 12 Mar 80, went across the International Border to Post `DERA n Pakistan, along- with Shri Rattan Singh S/o Shri Waryam Singh of the said village. Sd/- Station: Field (Balwant Singh) Date: 12 Dec 81 Major O ciating Commanding O cer nd 2 Batallion The Dogra Regiment To be tried by a General Court Martial Place : Field Sd/- Date: 12 Dec 81 (R.K. Kashyap) Lieutnant Colonel Assis- tant Ad-jutant General for O ciat- ing General O cer Commanding 16
�
CorpsSection 63 of the Act reads as under:- "Violation of good order and discipline:- Any person subject to this Act who is guilty of any act or omission which, though not spec- i ed in this Act, is prejudicial to good order and military discipline shall, on conviction by court martial, be liable to su er imprisonment for a term which may extend to seven years or such less punishment as is
�
in this Act mentioned.After conclu- sion of the proceedings, the appellant was held guilty of the charge and was sentenced to su er two years impris-
onment and also dismissed from ser- vice by order dated January 22, 1982 of the GCM. The sentence passed against the appellant was con rmed by the con rming authority as re- quired under the Act. The appellant challenged his conviction and sen- tence in SWP No. 14-A/1984 led by him in the High Court of Jammu and Kashmir at Jammu which as noted above, was allowed by the learned Single Judge by order dated Novem- ber 20, 1996. The ground which ap- pealed to the learned Single Judge in setting aside the Court Martial and subsequent con rmation of sen- tence may be stated from the rele- vant paragraphs of the judgment of the learned Single Judge which are
�
as under:- I have gone through the record that was produced before me today and also leafed through the statements made by the witnesses before the General Court Martial. Not even a single witness has de- posed that he had seen or had any knowledge of the petitioner having crossed ever the International Bor- der. There is absolutely no evidence. Learned counsel appearing for the respondents has vehemently relied upon the statement made by the ac- cused/petitioner before the summary of evidence. According to him this statement was made voluntarily and can be safely acted upon. I de- cline to agree with the learned coun- sel for the reason, because, state- ments made before summary of ev- idence cannot be relied upon in therst instance. Even then I have gone through the statement of the petitioner/accused before the general court martial. In that statement,
| 560 | Bachan Singh v. Union of India 2008 |
the petitioner has vehemently stated that the earlier statement made by him during the summary of evidence was as a result of force exercised upon him during interrogation. He has totally resiled from this state- ment, did not own the same. I am tempted to refer to Article 20 of the Constitution read with Section 27 of the Evidence Act. The statement tendered by the accused/petitioner before the summary of evidence has been destroyed and another state- ment was later recorded. The gen- eral court martial has taken note of this statement and itself returned a nding in the following manner:-
�
The court decided to uphold the contention of defence and not to admit the above document in evi-
�
dence.General Court Martial seems to have su ciently been conscious of the loop-holes which the statement had and it was because of these loop- holes that this confessional statement was not acted upon. Su ce to say that there is no evidence linking the petitioner/accused with the allega- tion under which he stands charged. On the strength of the foregoing rea- soning, I nd the proceedings to be inconsistent with the provision of the Army Act and the nding of the court martial was not in accordance with the law. Therefore, the same is quashed and the petitioner is rel- egated back to the position he had on the date of passing of the order. He will be entitled to all the bene-
�
ts under rules.Aggrieved by the said order of the learned Single Judge of the High Court, the Union of In- dia and the o cials concerned of the Army have preferred Letters Patent
Appeal (SW) No. 284/94. By or- der dated February 5, 2002, the Divi- sion Bench of the High Court allowed the appeal and set aside the order passed by the learned Single Judge in SWP No. 14-A/1994. Hence, the appellant has preferred this ap- peal. Mr. D.K. Garg, learned coun- sel appearing on behalf of the appel- lant in support of the judgment of the learned Single Judge, contended that the learned Single Judge has rightly quashed the GCM primarily on a ground that the GCM had been convened in violation of the mandate of Section 109 of the Act. According to the learned counsel, the GCM was not convened by the authority com- petent to do so in terms of Section 109. It was urged that there was no direct evidence produced on record of the GCM by the respondents to prove the guilt of the appellant for o ence under Section 63 of the Act and in the absence of any evidence, the order of conviction and sentence imposed upon the appellant by the GCM was invalid, unsustainable and in violation of natural justice and in such circumstances the judgment of the learned Single Judge setting aside the order of the GCM could not have been interfered with by the Di- vision Bench in Letters Patent Ap- peal. It was, therefore, submitted that the impugned order of the Di- vision Bench of the High Court de- serves to be set aside by restoring the order of the learned Single Judge. Mr. Parag P. Tripathi, learned Ad- ditional Solicitor General for the re- spondents on the other hand, sup- ported the order passed by the Di- vision Bench of the High Court and
561
submitted that the High Court was right in allowing the Letters Patent Appeal and in making the order. He submitted that the learned Single Judge has exceeded his jurisdiction under Article 226 of the Constitution of India by setting aside the Court Martial and subsequent order of con- viction and sentence recorded against the appellant which was later on con-rmed by the competent authority as envisaged under the Act and the Rules for violation of good order and discipline in terms of Section 63 of the Act. According to the learned counsel, this Court in exercise of its power under Article 136 of the Con- stitution may ordinarily not inter- fere with the order of the Division Bench. Having heard the learned counsel and having gone through the material on record and also the rele- vant provisions of the Army Act and Rules, in our opinion, the Division Bench of the High Court was jus- ti ed in setting aside the order of the learned Single Judge who was not justi ed in setting aside the well- reasoned order of the GCM which was based upon proper and fair ap- preciation of the evidence of the ma- terial witnesses, statement made vol- untarily by the appellant before it, other material and subsequent order of the con rming authority. The ap- pellants contention that the conven- ing of the GCM in this case is not valid because under Section 109 of the Act, the GCM can be convened only by any o cer who has been appointed by a speci c warrant in that connection by the Chief of the Army Sta must be rejected. Un- der Section 109 of the Army Act, a
GCM may be convened by the Cen- tral Government or the Chief of the Army Sta or by any o cer empow- ered in this behalf by warrant of the Chief of the Army Sta . There is nothing in Section 109 which requires the Chief of the Army Sta to issue a warrant for each speci c case. A general warrant for convening GCM under the Act has been issued by the Chief of the Army Sta under Section 109 whereby all the o cers not being under the rank of a Field O cer, commanding the 16 Corps are empowered to convene GCM for the trial of any person under his command who is subject to Mili- tary Law authorized by A-1 warrant duly signed by the Chief of the Army Sta was produced before the High Court which has been noticed and ex- tracted in the judgment by the Divi- sion Bench. The warrant of autho-
�
rization reads as under:- Warrant of convening of General Court Martial under the Army Act. To, The OFI- CER NOT BEING UNDER THE RANK OF A FIELD OFFICER, COMMANDING THE XVI CORPS In pursuance of the provisions of the Army Act, 1950 (XLVI of 1950). I do hereby empower you, or the of-cer on whom your command may devolve during your absence, not un- der the rank of Field O cer, from time to time as occasion may require, to convene General Courts Martial for the trial, in accordance with the said Act and the Rules made there- under, of any person under your com- mand who is subject to military law and is charged with any o ence men- tioned in the said Act, and is liable to be tried by a General Court Mar-
| 562 | Bachan Singh v. Union of India 2008 |
tial. And for doing so, this shall be, as well to you as to all others whom it may concern, a su cient warrant. Given under my hand at NEW DELHI this twenty fourth day of JUNE 1972. Sd/- General CHIEF OF THE ARMY STAFF.
In the present case, the above said order dated 15th December, 1981 convening the assembly of GCM under the Act passed by IC-5095P Major General K. Mahipat Sin- hji, O ciating General O cer Com- manding 16 Corps clearly proves that the GCM has been convened by a competent authority in accordance with the provisions of Section 109 of the Army Act. The members of the GCM were selected and ap- pointed in compliance to Section 113 of the Act. Thus, the respondents have fully complied with the re- quirement of law. The record of the Court Martial produced before us by the learned Additional Solic- itor General would reveal that the GCM was held against the appel- lant on di erent dates at Udham- pur. The record would disclose that the appellant had made voluntar- ily written confessional statement be- fore the GCM admitting the alle- gations levelled against him in the charge sheet. On bare perusal of the GCM, it becomes quite clear that the proceedings were recorded by the GCM in the presence of the appellant, his defending o cer and other witnesses. The statements of Major S.K. Sareen, Smt. Vidya Devi, Veena Kumari, Tara Chand, Rattan Singh, Prabhu Ram, Major S.B. Ambel, Pritam Singh, Capt.
A.K. Chowdary, Major Amin Chand Bhattee were recorded by the GCM on behalf of the prosecution in sup- port of the charge in the presence of the appellant. The appellant was af- forded full opportunity of cross ex- amining the witnesses but he did not avail of the said opportunity. It ap- pears from the record that despite giving warning to the appellant to the e ect that he was not obliged to make any confessional statement, the appellant made written confes- sional statement on October, 22, 1980. The appellant made additional statement in addition to rst sum- mary of evidence on 10th Septem- ber, 1981 in the presence of wit- nesses namely IC-25616Y Major S.L. Gautam independent witness, Major Amin Chand O cer recording Sum- mary of Evidence. It appears from the record that second additional summary of evidence recorded on 10th September, 1981 was in compli- ance with Army Rules 23(1), 23(2), 23(3), 23(4) and 23(6) in which the appellant did confess his guilt. Chap- ter XII of the Act deals with Con-rmation and Revision. Section 153 provides that 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 this Act. Section 154 prescribes that the ndings and sen- tences of general courts martial may be con rmed by the Central Govern- ment, or by any o cer empowered in this behalf by warrant of the Cen- tral Government. The record of the respondents shown to us would es- tablish that the ndings of conviction and sentences imposed upon the ap-
563
pellant by the GCM were con rmed by the competent authority in terms of Section 154 of the Act. We nd the proceedings of the GCM to be quite immaculate where trial was fair and every possible opportunity was a orded to the appellant to defend his case. After ourselves examining the record of the court martial, wend that the learned Single Judge, with respect to him, completely mis- directed himself in coming to the con- clusion that the proceedings held by GCM were inconsistent with the pro- visions of the Army Act and the nd- ing of the Court Martial was not in accordance with the law. The ap- pellant was given opportunity to in- spect whatever record he wanted, his wife and other witnesses were exam- ined in his presence and he had par- ticipated in the court martial pro- ceedings without raising any objec- tion. The GCM took into consid- eration the relevant oral evidence of the material witnesses and statement voluntarily made by the appellant and additional summary confessional statement duly signed by him in the presence of Major S.L. Gautam and Major Amin Chand who have also appended their signatures thereon and other materials produced be- fore it, found the appellant guilty of the charge and convicted and sen- tenced him accordingly. The appel- lant led post con rmation petition against the order of the GCM un- der Section 164 of the Act, a copy whereof has been shown to us by the learned counsel for the appel- lant. We are informed by the learned Additional Solicitor General that the said petition has been rejected by
the competent authority and ndings and sentences of the GCM recorded against the appellant were con rmed and the appellant was, accordingly, informed about the decision so taken by the authority. Indisputably, the appellant has neither challenged the said order of the competent author- ity passed under the Statute before the High Court in the writ petition nor was the order was brought to the notice of the Division Bench by the appellant at the time of hearing and deciding the Letters Patent Appeal. Having examined the above said or- der of the learned Single Judge, wend that the ndings and reason- ings recorded therein are not based upon proper assessment of the facts of the case and it was not neces- sary for the learned Single Judge to have minutely examined the record of the GCM as if he was sitting in appeal. We nd that on merits, the learned Single Judge has not clearly and plainly said that there was no case against the appellant to hold him guilty of the o ence charged. It is well-known and well-settled propo- sition of law that in proceedings un- der Article 226 of the Constitution the High Court cannot sit as a Court of Appeal over the ndings recorded by the GCM. Judicial Review under Article 226 of the Constitution is not directed against the decision but is con ned to the decision-making pro- cess. Judicial review is not an appeal but a review of the manner in which the decision is made. The court sits in judgment only on the correctness of the decision making process and not on the correctness of the deci- sion itself. Thus, examining the case
| 564 | Bachan Singh v. Union of India 2008 |
of the appellant from all angles we are satis ed that there was no irregu- larity or illegality in the GCM which was fairly and properly conducted by most quali ed members holding very high ranks in Army hierarchy. The Division Bench of the High Court in the impugned judgment while setting aside the judgment of the learned Single Judge has relied upon the de- cision of this Court in Union of India Ors. v. IC 14827 Major A. Hussain [AIR 1998 SC 577] and observed that the High Court cannot re-appreciate the evidence recorded by the author- ities and substitute by its own nd- ing replacing the conclusion reached by the competent authority. Though the Division Bench of the High Court has not given detailed reason in its judgment for setting aside the judg- ment of the learned Single Judge, yet in substance we are of the opinion that the said judgment on merit war- rants no interference inasmuch as no illegality, in rmity or error of juris- diction could be shown before us by the appellant. In our view, there is no merit in the contentions taken by the appellant. For the reasons above stated, there is no merit in this ap- peal and it is, therefore, dismissed. There will be no order as to costs Union Of India Ors. v. Rajpal Singh on 7 November, 2008 Author: D Jain Bench: C.K. Thakker, D.K. Jain
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURIS- DICTION
CIVIL APPEAL NO. 6587 OF 2008 (Arising out of S.L.P. (C) No. 6037 of 2007) UNION OF INDIA
amp; ORS. { APPELLANT (S) VERSUS
RAJPAL SINGH { RESPON- DENT (S) WITH
[SLP (C) NOS. 14338-14339 OF 2008 AND
SLP (C) NO.15430 OF 2008]
JUDGMENT
D.K. JAIN, J.:
Leave granted in SLP (C) No. 6037 of 2007. 1
2.This appeal raises a short question whether the holding of an Invalidating Board is a condition precedent for discharge of a Junior Commissioned O cer (JCO) on ac- count of low medical category?
3.For the determination of the issue aforesaid, it is unnecessary to delve deeply into the facts of the case and only a few material facts would su ce. These are: The respondent, a Junior Commissioned O cer (JCO) was enrolled in the Army on 9th March, 1980. While serving 20 JAT Regiment, on 31st July, 2000, he fell ill; was admitted to the military hospital and was discharged after treatment on 7th November, 2000, but was placed in low medical cat- egory S1H1A1P2E1 with e ect from 6th November, 2000 for six months. On account of disability, namely, Is- chaemic heart disease, again in May, 2001, he was continued in low medi- cal category for another six months. Later, he was brought for review and was then placed in low medical cate- gory (permanent) for a period of two years from October, 2001.
4.However, before the expiry
565
of the said period of two years, a show cause notice was served on the respondent on 27th February, 2002, stating that since he was placed in permanent low medical category, why he should not be discharged from service as no sheltered appoint- ment was available and his unit was deployed in a eld area. It was also stated that his retention in service was not in public interest. For the sake of ready reference, the notice is extracted below:
20 JAT C/O
99 APO
2062/A/
February, 2002
JC 48893 IX
Mb Sub Rajpal Singh
20 JAT
C/o 99 APO
SHOW CAUSE NOTICE
1.During re-categorization board held at 178 Army Hospital on 24.10.2001, as per AF MSF-15A you have been declared in permanent low medical category.
2.Because the unit is deployed in eld area, there is no sheltered ap- pointment. As a result of the above, show cause as to why you should not be discharged from service because your retention in service is not in public interest.
3.Please send reply of the show cause notice by 10.3.2002. Sd/- xxxx
(Rajesh Ahuja)
Colonel Commanding O cer
5. In his reply to the said no- tice, the respondent pleaded that
on doctor's advice he could perform light duties and expressed his will- ingness to continue in service. A `Release Medical Board' was consti- tuted, which recommended his dis- charge. Accordingly, by an or- der passed by the O cer In-charge (OIC) of 20 JAT Regiment, the re- spondent was discharged from service with e ect from 31st August, 2002.
6. Being aggrieved, the respon- dent challenged his discharge by pre- ferring a writ petition under Article 226 of the Constitution in the High Court of Delhi at New Delhi. Be- fore the High Court the plea of the respondent was that:- (i) as a JCO he could be discharged for low medi- cal category under Army Rule 13 (3)
(I) (ii) by the Commanding O cer after obtaining the opinion of an In- validating Board and not under Rule 13 (3) (I) (iii) (c) read with Rule 13 (2A) which had been applied in his case and since the opinion of the In- validating Board had not been ob- tained, his discharge was contrary to the rules; (ii) as per the mandate of the afore-noted Army Rule, the recommendation of the Invalidating Board is to precede the decision for discharge 4
and a Release Medical Board can- not replace the requirement of Inval- idating Board; (iii) as per the pol- icy directive issued by the Govern- ment on 15th March, 2000, Army Rule 13 (3) (I) (iii) (c), he could be discharged only by the Chief of Army Sta and not by OIC, 20 JAT Regiment even though under Rule 13 (2A), such power could be dele- gated to the commanding o cer but
| 566 | Bachan Singh v. Union of India 2008 |
in the present case no such decision had been taken; (iv) there was no ad- verse report against him either from his CO or any of the superior o cers' regarding performance of his duties and general behaviour and, therefore, his continuation in service could not be said to be against public interest;
(v)the OIC (Records) order of his discharge without providing an op- portunity of hearing is violative of the principles of natural justice and
(vi)a number of similarly situated JCOs had been retained in service and, therefore, he had been discrim- inated against.
7.The stand of the Government before the High Court was that re- tention of low medical category per- sonnel is always subject to the avail- ability of suitable sheltered appoint- ment, commensurate with their med- ical category and since no suitable sheltered appointment was available with the unit due to deployment ineld area, the respondent had to be discharged from service. It was also urged that since the respondent's dis- ability had already been assessed by the Release Medical Board, he was discharged under Army Rule 13 (3)
(I) (iii) (c) read with Rule 13 (2A) and Army Order 46/80 in public in- terest.
8.The High Court, by a well reasoned order, concluded that the discharge of the respondent with- out holding an Invalidating Board in terms of Rule 13 (3) (I) (ii) was il- legal. As regards the applicability of Army Order 46 of 1980, which contemplates that the employment of permanent low medical category per-
sonnel at all times is subject to avail- ability of suitable sheltered appoint- ment, commensurate to their medical category, the High Court held that before the opinion is formed as to whether a person is to be retained or not on medical grounds, there has to be an opinion of the Invalidating Board to the e ect that further re- tention in service on medical ground is not possible. The question of suit- able sheltered appointment commen- surating the medical category will be relevant only thereafter. According to the High Court, there is no rule stipulating that as soon as a person is placed in permanent low medical category, it will be presumed that he is un t for further service. Conse- quently, the High Court allowed the writ petition; quashed the order of discharge and directed the appellants herein to reinstate the respondent in service.
9.Aggrieved by the said order, the appellants led a Review Petition along with a number of other miscel- laneous applications for interim re- lief. The Review Petition as well as the applications were dismissed on merits as well as on the ground of limitation. The main order dated 7th October, 2005 as well as the order in Review Petition dated 25th January, 2007 are under challenge in this ap- peal.
10.It was strenuously urged by Mr. Vikas Singh, learned Additional Solicitor General, that since the re- spondent was in low medical cate- gory, he was discharged under Army Order 46 of 1980 read with Rule 13
(3)(I) (ii) (c) of the Army Rules,
567
1954 (for short `the Rules') whereun- der there is no requirement for con- vening an Invalidating Board. It was submitted that the source of power of discharge of the respondent was Sub-rule (2A) of Rule 13, which cre- ates a special provision for discharge, notwithstanding anything to the con- trary contained in Rule 13. It was contended that the meaning of the expression `un t for further service' as used in clause (ii) of Rule 13 (3)
(I) is very clear and unambiguous and, therefore, Invalidating Board as contemplated under the said Rule is meant only for those army person- nel who are found medically `un t for further service' by the Review Medical Board not for those who are placed in `low medical category (per- manent)', as is the case here. In sup- port of the proposition that when the words of the statute are clear, plain and unambiguous then the courts are bound to give e ect to that meaning, irrespective of the consequences, re- liance is placed on the decisions of this Court in Gurudevdatta Vksss Maryadit amp; Ors. v. State of Maharashtra amp; Ors.1 and Jiten- der Tyagi v. Delhi Administration amp; Anr.2. Reference is also made to Shailendra Dania amp; Ors. v. S.P. Dubey amp; Ors.3 to contend that a long past practice followed by the department is also a valid factor in seeking a particular interpretation.
11. Per contra, Mr.P.P. Rao, learned senior counsel appearing for the respondent, vehemently con- tended that in terms of Sub-rule (3) of Rule 13 which speci es the cat- egory of o cers, competent to dis-
charge; the grounds of discharge, and the manner of discharge, a JCO like the respondent, who had been placed in low medical category (permanent) for a period of two years, could be discharged from service only if he had been found medically un t for fur- ther service on the recommendation of the Invalidating Board. Accord- ing to the learned counsel, though in the order of discharge the respon- dent has been found to be in low medical category (permanent) but in e ect, for the purpose of discharge, he has been found medically un t for further service, and, therefore, his case would clearly fall within the ambit of clause (ii) of Rule 13 (3)
(I). In support of the proposition that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily for- bidden, reliance was placed on the decision in Nazir Ahmad v. The King Emperor4, followed in State of Uttar Pradesh v. Singhara Singh amp; Ors.5. Learned counsel ar- gued that the requirement of recom- mendation of Invalidating Board is a safeguard against arbitrary curtail- ment of statutory tenure and being a benevolent provision, requires to be liberally construed. The stand of the respondent is that the Rules relating to discharge do not make any di er- entiation between categorisation of the personnel on the basis of their health status and as long as a person is discharged on medical grounds as being un t for further service, pro- vision of Rule 13 (3) (I) (ii) would apply, irrespective of categorisation.
| 568 | Bachan Singh v. Union of India 2008 |
In so far as Army Order 46 of 1980 is concerned, the learned counsel sub- mitted that it cannot override the statutory rule. Placing reliance on the decision of this Court in Capt. Virendra Kumar v. Union of India6, learned counsel urged that the ap- pellants having failed to follow the prescribed statutory procedure, the termination of service of the respon- dent was illegal and, therefore, the High Court was fully justi ed in set- ting aside the same.
12.Having examined the issue in the light of the statutory provisions, we are of the opinion that answer to the question posed has to be in the a rmative.
13.It needs little emphasis thattness of the personnel of Armed Forces at all levels is of paramount consideration and there cannot be any compromise on that score. It is with this object in view, the Legisla- ture has enacted the Army Act, 1950; the Armed Forces Medical Services Act, 1983 and framed the Rules. Army Orders are also issued from time to time in order to give e ect to these statutory provisions in let- ter and spirit. As per the procedure detailed in the written submissions,led on behalf of the appellants, an- nual or periodic medical examination of the army personnel is done on cer- tain speci c norms. The medical sta- tus of an army personnel is xed on the basis of these norms, contain- ing ve components viz. (a) psy- chology (b) hearing (c) appendarist
(d) physical and (e) eye { which is collectively known as SHAPE. The medical status SHAPE is again char-
acterised in ve components known as:{ SHAPE I{physically t for all purposes. SHAPE II amp; SHAPE III{not t for certain duties and are required not to undertake strain.
SHAPE IV{those who are in hos- pital for certain ailments and
SHAPE V{un t for further ser- vice of the Army.
14.It is pointed out that army personnel are put in the afore- mentioned medical categories i.e. SHAPE on the basis of a periodical Medical Board which is held for an individual after the age of 35 years and thereafter at an interval of ev- ery 5 years. If the army person- nel is in SHAPE I, he is not re- quired to undergo further Medical Board except annual medical exam- ination. However, the army person- nel who is placed in SHAPE II and SHAPE III on the annual medical ex- amination, he is placed in low med- ical category (temporary) for a pe- riod of six months. After six months, he is placed before the Review Med- ical Board and if at the end of six months, his category remains un- changed, that category is awarded to him on permanent basis and he is placed in low medical category (per- manent). After award of low medi- cal category (permanent), the army personnel is placed before the Re- view Medical Board after every two years. In Review Medical Board, the medical category of the personnel may be changed keeping in view the change in any component of SHAPE. Thus, SHAPE II or SHAPE III may be placed in SHAPE I also and vice versa. It is the say of the appel-
569
lants that the release of certain med- ical category (permanent) personnel is regulated by Army Order No.46 of 1980, which contemplates that the army personnel, who is placed in low medical category (permanent), is to be retained in service for a minimum 13
period of 15 years (for Sepoy) and 20 years (for JCO) and during this period he is entitled to all promotions as per the rules; the discharge of low medical category is regulated as per the above-mentioned Army Or- der and before the discharge, the per- sonnel is placed before the Release Medical Board for a mandatory ex- amination before the order of dis- charge is passed. An army person- nel who is categorised as SHAPE V is considered to be not t for fur- ther service of the Army and on plac- ing such a personnel in SHAPE V he is mandatorily brought before In- validating Board in terms of Rule 13 (3), whereas an army personnel who is in SHAPE II or in SHAPE III, is to undergo di erent Medical Boards apart from annual medical examina- tion. The said personnel are not to- tally un t but at the same time they are not t for all the army duties and, therefore, they are retained for 15 years or 20 years, as the case may be, on the sheltered post mandato- rily.
15.Having noticed the basic pa- rameters which are applied for cat- egorisation of the physical status of the army personnel, it will be useful to brie y refer to relevant statutory provisions.
16.Chapter IV of the Army Act,
1950 (for short `the Act') deals with the conditions of service of the army personnel. Section 18 of the Act pro- vides that every person subject to the Act shall hold o ce during the pleasure of the President. Section 19 clothes the Central Government with the power of dismissal or re- moval from service any person cov- ered under the Act subject to the provisions of the Act and the Rules and Regulations made thereunder. Section 20 provides for dismissal, re- moval or reduction by the Chief of the Army Sta and by other o cers. Section 22 of the Act provides for re- tirement, release or discharge from the service by such authority and in such manner as may be prescribed. Sub-Section (xix) of Section 3 of the Act states that `prescribed' means prescribed by rules made under the Act. Section 191 empowers the Cen- tral Government to make rules as re- gards removal, retirement, release or discharge from the service of persons subject to the Act. 15
Pursuant to and in furtherance of the power conferred on the Central Government under Section 191 of the Act, the Central Government framed the Rules.
17.Rule 13 which is the pivotal provision reads thus: 13. Authorities empowered to authorise discharge.{
(1) Each of the authorities speci-ed in column 3 of the Table be- low, shall be the competent author- ity to discharge from service person subject to the Act speci ed in col- umn 1 thereof on the grounds spec- i ed in column 2. (2) Any power conferred by this rule on any of the
| 570 | Bachan Singh v. Union of India 2008 |
aforesaid authorities shall also be ex- ercisable by any other authority su- perior to it. [(2A) Where the Cen- tral Government or the Chief of the Army Sta decides that any person or class or persons subject to the Act should be discharged from service, ei- ther unconditionally or on the ful ll- ment of certain speci ed conditions, then, notwithstanding anything con- tained in this rule, the Command- ing O cer shall also be the compe- tent authority to discharge from ser- vice such person or any person be- longing to such class in accordance with the said decision.] (3) In this table commanding o cer means the o cer commanding the corps or de- partment to which the person to be discharged belongs except that in the case of junior commissioned o cers and warrant o cers of the Special Medical Section of the Army Med- ical Corps, the commanding o cer means the Director of the Medical Services, Army, and in the case of junior commissioned o cer and war- rant o cers of Remounts, Veterinary and Farms, Corps, the Command- ing O cer means the Director Re- mounts, Veterinary and Farms.
Category Grounds of Competent Manner of discharge authority to dis- charge authorise discharge
Junior I.(i)(a) On completion Commanding Commissioned of the period of O cer O cers service or tenure speci ed in the Regulations for his rank or appointment, are on reaching the age limit whichever is earlier, unless trainee on the active list for further speci ed period with the sanction of the Chief of the Army
Sta or on becoming eligible for re- lease under the Regulations.
(b) At his own Commanding re- quest on transfer O cer to the pen- sion establishment
(ii)Having been Commanding To be carried out found medically O - cer only on the un t for further rec- ommendation service. of an Invali- dating Board.
(iii)All other classes (a) In the
case If the discharge of discharge. of Junior is not at the Commis- sioned request of the O cers Junior granted direct Commissioned com- missions O cer the during the rst competent 12 months authority be- fore service Area/ sanctioning the Di- visional discharge shall if Comman- der the circumstances of the case per- mit give the Junior Commissioned O cer concerned an opportunity to show cause against the order of dis- charge. (b) In the case of JCOs, not covered by (a), serving in any Army or Command the General Of-cer Commanding-in-Chief of that Army or command if not below the rank of Lieutenant General.(c) In any other case the Chief of the Army Sta ;
18.The afore-extracted Rule 13
(1) clearly enumerates the author- ities competent to discharge from service, the speci ed person; the grounds of discharge and the man- ner of discharge. It is manifest that when in terms of this Rule an army personnel is discharged on comple- tion of service or tenure or at the request of the person concerned, no speci c manner of discharge is pre-
571
scribed. Naturally, the Regulations or Army Orders will take care of theeld not covered by the Rules. How- ever, for discharge on other grounds, speci ed in Column (2) of the Table, appended to the Rule, the manner of discharge is clearly laid out. It is plain that a discharge on the ground of having been found medically un t for further service is speci cally dealt with in Column (I) (ii) of the Ta- ble, which stipulates that discharge in such a case is to be carried out only on the recommendation of the Invali- dating Board. It is a cardinal princi- ple of interpretation of a Statute that only those cases or situations can be covered under a residual head, which are not covered under a speci c head. It is, therefore, clear that only those cases of discharge would fall within the ambit of the residual head, viz. I (iii) which are not covered under the preceding speci c heads. In other words, if a JCO is to be discharged from the service on the ground of medically un t for further service;, irrespective of the fact whether he is or was in a low medical category, his order of discharge can be made only on the recommendation of an Inval- idating Board. The said rule being clear and unambiguous is capable of only this interpretation and no other.
19. Having reached the said conclusion, we feel that the appel- lants were bound to follow Rule 13
(3) (I) (ii), more so having placed the respondent in low medical cate- gory (permanent) for a period of two years from October, 2001 he was dis- charged from service on 31st August, 2002, relying on the recommendation
of the Re-categorisation Board held on 24th October, 2001. As noted in the show cause notice, extracted above, the said Board had placed the respondent in permanent low medi- cal category. Be that as it may, the main ground of discharge being med- ical un tness for further service, the appellants were bound to follow the prescribed rule.
20. It is well settled rule of ad- ministrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in vi- olation of them. This rule was enun- ciated by Justice Frankfurter in Vit- eralli v. Saton7, where the learned Judge said:
An executive agency must be rig- orously held to the standards by which it professes its action to be judged... Accordingly, if dismissal from employment is based on a de-ned procedure, even though gen- erous beyond the requirements that bind such agency, that procedure must be scrupulously observed...This judicially evolved rule of administra- tive law is now rmly established and, if I may add, rightly so. He that takes the procedural sword shall per- ish with that sword.
21. The afore-extracted obser- vations were approved and followed in Sukhdev Singh amp; Ors. v. Bhagatram Sardar Singh Raghuvan- shi amp; Anr.8 and then again in Dr. Amarjit Singh Ahluwalia v. The State of Punjab amp; Ors.9 wherein, speaking for a three-Judge
| 572 | Bachan Singh v. Union of India 2008 | |||||||||||
| cause 22 | ||||||||||||
| Bench, P.N. Bhagwati, J. had ob- | ||||||||||||
| served that though the above view | notice, seeking to discharge him | |||||||||||
| was not based on the equality clause | ||||||||||||
| on the aforementioned grounds. We | ||||||||||||
| of the United States Constitution | are convinced that although the dis- | |||||||||||
| and it was evolved as a rule of ad- | charge is purportedly shown to be | |||||||||||
| ministrative law but the principle re- | also on account of non-availability of | |||||||||||
| mains the same, namely, that ar- | a sheltered appointment, the main | |||||||||||
| bitrariness should be eliminated in | ground for discharge was undoubt- | |||||||||||
| a State | action. | (Also | see: | Ra- | edly on account of permanent low | |||||||
| mana Dayaram | Shetty | v. | Inter- | medical category i.e. medical un t- | ||||||||
| national Airport Authority of India | ness. | In | that | view of | the matter, | |||||||
| amp; Ors.10). | the order of discharge of the respon- | |||||||||||
| 22.In view of the foregoing inter- | dent would not fall under the residual | |||||||||||
| pretation of the relevant rule, we are | ground, namely, I (iii) in Column 2 of | |||||||||||
| in complete agreement with the High | the Table. | |||||||||||
| Court that where a JCO is sought to | 24. That takes us to the next | |||||||||||
| be discharged on the ground of med- | ||||||||||||
| question whether the case of the re- | ||||||||||||
| ical un tness for further service, his | spondent for discharge could be dealt | |||||||||||
| case has to be dealt with strictly in | with in accordance with Army Order | |||||||||||
| accordance with the procedure con- | 46 of 1980, de hors Rule 13, as con- | |||||||||||
| templated in Clause I (ii) in Col- | tended by the appellants. | |||||||||||
| umn 2 | of the | Table appended to | 25.Relevant | portion | of the said | |||||||
| Rule 13. | The Rule prescribes a par- | |||||||||||
| order | reads | as | follows: | AO 46/80 | ||||||||
| ticular procedure for discharge of a | ||||||||||||
| JCO on account of medical un tness, | Disposal of Permanent Low Medical | |||||||||||
| which must be followed and, there- | Category Personnel other than O - | |||||||||||
| fore, any order | of discharge | passed | cers | |||||||||
| without subjecting him to Invalidat- | Aim | |||||||||||
| ing Board would fall foul of the said | 1. The aim of this Army Or- | |||||||||||
| statutory rule. | der is to lay down implementa- | |||||||||||
| 23.In the present case, it is ev- | tion | instructions for the disposal | ||||||||||
| ident from Column 9 | of | the | or- | of permanent low medical category | ||||||||
| der of discharge that respondent has | JCOs/OR in terms of Min of Def | |||||||||||
| been discharged on account of his | Letter No. | A/32395/VIII/Org 2 | ||||||||||
| having been placed in a low med- | (MP) (c)/713-S/A/D (AG) dated 10 | |||||||||||
| ical category (permanent) by the | May, 77 as amended vide Corrigen- | |||||||||||
| Re-categorisation Board. | As noted | dum No. | A/32395/X/Org 2 (MP) | |||||||||
| above, he was not discharged imme- | (c)/7167/A/D (AG) dated 26 Nov | |||||||||||
| diately and was apparently detailed | 79, reproduced as Appendice `A' and | |||||||||||
| for sheltered appointment. However, | `B' respectively to this order. | |||||||||||
| suddenly within a few months of his | Retention | |||||||||||
| evaluation by the Re-categorisation | 2. General Principles | |||||||||||
| Board, he was served with a show | ||||||||||||
573
(a) The employment of perma- nent low medical category person- nel, at all times, is subject to the availability of suitable alter- native appointments commensurate with their medical category and also to the proviso that this can be jus- ti ed in the public interest, and that their retention will not exceed the sanctioned strength of the reg- iment/corps. When such an ap- pointment is not available or when their retention is either not consid- ered necessary in the interest of the service or it exceeds the sanctioned strength of the regiment/corps, they will be discharged irrespective of the service put in by them.
(b) Ordinarily, permanent low medical category personnel will be retained in service till completion of 15 years service in the case of JCOs and 10 years in the case of OR (in- cluding NCOs). However, such per- sonnel may continue to be retained in service beyond the above period until they become due for discharge in the normal manner subject to their will- ingness and the ful lment of the stip- ulation laid in Sub Para (a) above.
3. All personnel retained in ser- vice in terms of Para 2 above will, un- der all circumstances, be discharged on completion of their engagement periods/retiring service limits. For this purpose, NCOs and JCOs will be treated as under:- (a) NCOs will be discharged on completion of the retiring service limits appropriate to ranks as opposed to the extended limits laid down in AO 13/77. How- ever, their retention beyond the con- tractual period of engagement will
be regulated under the provisions of Paras 144 to 147 of Regulations for the Army 1962.
(b) JCOs will be discharged on completion of the normal retiring ser- vice limits as opposed to the ex- tended limits laid down in AO 13/77.
4.Personnel su ering from pul- monary tuberculosis, including those who may be cured of the disease, will be disposed of in accordance with the provisions of Min of Def letter No. 22679/DGAFMS/DG- 3A/2721/D(ME:- dated 18 Jul 74 (reproduced in AO 150/75), as amended/ampli ed from time to time.
5.Cases of all permanent low medical category personnel will be reviewed by all concerned accord- ingly. In the case of those personnel who become due for discharge as per the instructions contained in the pre- ceding paragraphs, immediate action will be taken in the normal manner to carry of their discharge, as expe- ditiously as possible.
6.This order only lays down the general policy and procedure with regard to the disposal of per- manent low medical category per- sonnel. The actual discharge will, however, be carried out in accor- dance with the provisions of Min of Def letter No. A/32395/VIII/Org 2 (MP) (c)/713-S/a/D (AG) dated 10 May 77, as amended vide Corrigen- dum No. A/32395/X/Org (MP) (c)/ 7167/A/D (AG) dated 26 Nov 79 (reproduced as Appendices `A' and `B' respectively) and this HQ letter No. 8861/AG/PS 2 (c) dated 18 Aug
| 574 | Bachan Singh v. Union of India 2008 |
64, read with letter No 8861/AG/PS 2(c) dated 26 Mar/1 Apr 70.
7.Cases of permanent low med- ical category personnel already de- cided under the existing provisions, will not be re-opened.
8.This supersedes all pre- vious instructions on the subject. A/32395/X/Org 2(MP)
26. It is manifest that the said Army Order has been issued for dis- posal of permanent low medical cat- egory personnel and merely contem- plates that the employment of per- manent low medical category person- nel at all times, is subject to the availability of suitable alternative ap- pointments commensurate with their medical categories and also subject to the conditions that such a shel- tered appointment can be justi ed in the public interest. A plain read- ing of the Army Order shows that it comes into operation after an opinion has been formed as to whether a par- ticular personnel is to be retained in service or not, if so for what period. If a person is to be retained in ser- vice despite his low medical category for a particular period as stipulated in the Army Order 46 of 1980, the question of subjecting him to Inval- idating Board may not arise. How- ever, if a person is to be discharged on the ground of medical un tness, at that stage of his tenure of ser- vice or extended service within the meaning of the Army Order, he has to be discharged as per the proce- dure laid down in Clause I (ii) in Column 2 of the said Table. Simi- larly, Sub-rule (2A) of Rule 13, heav- ily relied upon by the appellants does
not carry the case of the appellants any further. It is only an enabling provision to authorise the command- ing o cer to discharge from service a person or a class of persons in re- spect whereof a decision has been taken by the Central Government or the Chief of Army Sta to discharge him from service either uncondition- ally or on the ful lment of certain speci ed conditions. The said pro- vision is not in any way in con ict with the scope of the remaining part of Rule 13, so as to give it an overrid- ing e ect, being a non obstante pro- vision. 26
27. For the foregoing reasons, we wholly agree with the reasoning and the conclusion of the High Court that the discharge of the respondent was not in accordance with the pre- scribed procedure and was, therefore, illegal. We do not nd any illegality or in rmity in the impugned judg- ment/order, warranting our interfer- ence. The appeal, being devoid of any merit, is dismissed accordingly with costs.
SLP (C) NOS. 14338-14339 OF 2008 amp; SLP (C) NO.15430 OF 2008
28.These tagged special leave pe- titions have been preferred against the orders passed by the High Court, declining to grant interim relief to the writ petitioners. Since the main issue now stands decided, there is no point in entertaining these petitions. All the petitions are dismissed accord- ingly without observing anything on merits. It will be open to the High Court to now take up the main writ petitions for disposal in accordance
575
with law.
J. (C. K. THAKKER)
J. (D.K. JAIN)
NEW DELHI;
NOVEMBER 7, 2008.Union Of India Ors. v. Rajpal Singh on 7 November, 2008 Author: D Jain Bench: C.K. Thakker, D.K. Jain
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURIS- DICTION
CIVIL APPEAL NO. 6587 OF 2008 (Arising out of S.L.P. (C) No. 6037 of 2007) UNION OF INDIA amp; ORS. { APPELLANT (S) VERSUS
RAJPAL SINGH { RESPON- DENT (S) WITH
[SLP (C) NOS. 14338-14339 OF 2008 AND
SLP (C) NO.15430 OF 2008]
JUDGMENT
D.K. JAIN, J.:
Leave granted in SLP (C) No. 6037 of 2007. 1
2.This appeal raises a short question whether the holding of an Invalidating Board is a condition precedent for discharge of a Junior Commissioned O cer (JCO) on ac- count of low medical category?
3.For the determination of the issue aforesaid, it is unnecessary to delve deeply into the facts of the case and only a few material facts would su ce. These are: The respondent, a Junior Commissioned O cer (JCO) was enrolled in the Army on 9th March, 1980. While serving 20 JAT
Regiment, on 31st July, 2000, he fell ill; was admitted to the military hospital and was discharged after treatment on 7th November, 2000, but was placed in low medical cat- egory S1H1A1P2E1 with e ect from 6th November, 2000 for six months. On account of disability, namely, Is- chaemic heart disease, again in May, 2001, he was continued in low medi- cal category for another six months. Later, he was brought for review and was then placed in low medical cate- gory (permanent) for a period of two years from October, 2001. 2
4. However, before the expiry of the said period of two years, a show cause notice was served on the respondent on 27th February, 2002, stating that since he was placed in permanent low medical category, why he should not be discharged from service as no sheltered appoint- ment was available and his unit was deployed in a eld area. It was also stated that his retention in service was not in public interest. For the sake of ready reference, the notice is extracted below:
20 JAT C/O
99 APO
2062/A/
February, 2002
JC 48893 IX
Mb Sub Rajpal Singh
20 JAT
C/o 99 APO
SHOW CAUSE NOTICE
1. During re-categorization board held at 178 Army Hospital on 24.10.2001, as per AF MSF-15A you
| 576 | Bachan Singh v. Union of India 2008 |
have been declared in permanent low medical category.
2.Because the unit is deployed in eld area, there is no sheltered ap- pointment. As a result of the above, show cause as to why you should not be discharged from service because your retention in service is not in public interest.
3.Please send reply of the show cause notice by 10.3.2002. Sd/- xxxx
(Rajesh Ahuja)
Colonel Commanding O cer
3
5. In his reply to the said no- tice, the respondent pleaded that on doctor's advice he could perform light duties and expressed his will- ingness to continue in service. A `Release Medical Board' was consti- tuted, which recommended his dis- charge. Accordingly, by an or- der passed by the O cer In-charge (OIC) of 20 JAT Regiment, the re- spondent was discharged from service with e ect from 31st August, 2002.
6. Being aggrieved, the respon- dent challenged his discharge by pre- ferring a writ petition under Article 226 of the Constitution in the High Court of Delhi at New Delhi. Be- fore the High Court the plea of the respondent was that:- (i) as a JCO he could be discharged for low medi- cal category under Army Rule 13 (3)
(I) (ii) by the Commanding O cer after obtaining the opinion of an In- validating Board and not under Rule 13 (3) (I) (iii) (c) read with Rule 13 (2A) which had been applied in his case and since the opinion of the In- validating Board had not been ob-
tained, his discharge was contrary to the rules; (ii) as per the mandate of the afore-noted Army Rule, the recommendation of the Invalidating Board is to precede the decision for discharge 4
and a Release Medical Board can- not replace the requirement of Inval- idating Board; (iii) as per the pol- icy directive issued by the Govern- ment on 15th March, 2000, Army Rule 13 (3) (I) (iii) (c), he could be discharged only by the Chief of Army Sta and not by OIC, 20 JAT Regiment even though under Rule 13 (2A), such power could be dele- gated to the commanding o cer but in the present case no such decision had been taken; (iv) there was no ad- verse report against him either from his CO or any of the superior o cers' regarding performance of his duties and general behaviour and, therefore, his continuation in service could not be said to be against public interest;
(v)the OIC (Records) order of his discharge without providing an op- portunity of hearing is violative of the principles of natural justice and
(vi)a number of similarly situated JCOs had been retained in service and, therefore, he had been discrim- inated against.
7. The stand of the Government before the High Court was that re- tention of low medical category per- sonnel is always 5
subject to the availability of suit- able sheltered appointment, com- mensurate with their medical cate- gory and since no suitable sheltered appointment was available with the unit due to deployment in eld area,
577
the respondent had to be discharged from service. It was also urged that since the respondent's disability had already been assessed by the Release Medical Board, he was discharged under Army Rule 13 (3) (I) (iii) (c) read with Rule 13 (2A) and Army Order 46/80 in public interest.
8. The High Court, by a well reasoned order, concluded that the discharge of the respondent with- out holding an Invalidating Board in terms of Rule 13 (3) (I) (ii) was il- legal. As regards the applicability of Army Order 46 of 1980, which contemplates that the employment of permanent low medical category per- sonnel at all times is subject to avail- ability of suitable sheltered appoint- ment, commensurate to their medical category, the High Court held that before the opinion is formed as to whether a person is to be retained or not on medical grounds, there 6
has to be an opinion of the Inval- idating Board to the e ect that fur- ther retention in service on medical ground is not possible. The ques- tion of suitable sheltered appoint- ment commensurating the medical category will be relevant only there- after. According to the High Court, there is no rule stipulating that as soon as a person is placed in per- manent low medical category, it will be presumed that he is un t for further service. Consequently, the High Court allowed the writ petition; quashed the order of discharge and directed the appellants herein to re- instate the respondent in service.
9. Aggrieved by the said order, the appellants led a Review Petition
along with a number of other miscel- laneous applications for interim re- lief. The Review Petition as well as the applications were dismissed on merits as well as on the ground of limitation. The main order dated 7th October, 2005 as well as the order in Review Petition dated 25th January, 2007 are under challenge in this ap- peal.
10. It was strenuously urged by Mr. Vikas Singh, learned Additional Solicitor General, that since the re- spondent was 7
in low medical category, he was discharged under Army Order 46 of 1980 read with Rule 13 (3) (I) (ii) (c) of the Army Rules, 1954 (for short `the Rules') whereunder there is no requirement for convening an Invali- dating Board. It was submitted that the source of power of discharge of the respondent was Sub-rule (2A) of Rule 13, which creates a special pro- vision for discharge, notwithstanding anything to the contrary contained in Rule 13. It was contended that the meaning of the expression `un t for further service' as used in clause (ii) of Rule 13 (3) (I) is very clear and unambiguous and, therefore, Inval- idating Board as contemplated un- der the said Rule is meant only for those army personnel who are found medically `un t for further service' by the Review Medical Board not for those who are placed in `low medi- cal category (permanent)', as is the case here. In support of the propo- sition that when the words of the statute are clear, plain and unam- biguous then the courts are bound to give e ect to that meaning, ir-
| 578 | Bachan Singh v. Union of India 2008 |
respective of the consequences, re- liance is placed on the decisions of this Court in Gurudevdatta Vksss Maryadit amp; Ors. v. 8
State of Maharashtra amp; Ors.1 and Jitender Tyagi v. Delhi Admin- istration amp; Anr.2. Reference is also made to Shailendra Dania amp; Ors. v. S.P. Dubey amp; Ors.3 to contend that a long past practice fol- lowed by the department is also a valid factor in seeking a particular in- terpretation.
11. Per contra, Mr.P.P. Rao, learned senior counsel appearing for the respondent, vehemently con- tended that in terms of Sub-rule (3) of Rule 13 which speci es the cat- egory of o cers, competent to dis- charge; the grounds of discharge, and the manner of discharge, a JCO like the respondent, who had been placed in low medical category (permanent) for a period of two years, could be discharged from service only if he had been found medically un t for fur- ther service on the recommendation of the Invalidating Board. According to the learned counsel, though in the order of discharge the respondent has been found to be in low medical cat- egory (permanent) but in e ect, for the purpose 1
(2001) 4 SCC 534
2
(1989) 4 SCC 653
3
(2007) 5 SCC 535
9
of discharge, he has been found medically un t for further service,
and, therefore, his case would clearly fall within the ambit of clause (ii) of Rule 13 (3) (I). In support of the proposition that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily for- bidden, reliance was placed on the decision in Nazir Ahmad v. The King Emperor4, followed in State of Uttar Pradesh v. Singhara Singh amp; Ors.5. Learned counsel ar- gued that the requirement of recom- mendation of Invalidating Board is a safeguard against arbitrary curtail- ment of statutory tenure and being a benevolent provision, requires to be liberally construed. The stand of the respondent is that the Rules relating to discharge do not make any di er- entiation between categorisation of the personnel on the basis of their health status and as long as a person is discharged on medical grounds as being un t for further service, pro- vision of Rule 13 (3) (I) (ii) would apply, irrespective of categorisation. In 4
L.R. 63 I.A. 372
5
[1964] 4 SCR 485
10
so far as Army Order 46 of 1980 is concerned, the learned counsel sub- mitted that it cannot override the statutory rule. Placing reliance on the decision of this Court in Capt. Virendra Kumar v. Union of India6, learned counsel urged that the ap- pellants having failed to follow the prescribed statutory procedure, the
| 579 | |||||||
| required not to undertake strain. | |||||||
| termination of service of the respon- | |||||||
| dent was illegal and, therefore, the | SHAPE IV{those who are in hos- | ||||||
| High Court was fully justi ed in set- | |||||||
| pital for certain ailments and | |||||||
| ting aside the same. | SHAPE V{un t for further ser- | ||||||
| 12.Having examined the issue in | |||||||
| vice of the Army. | |||||||
| the light of the statutory provisions, | 14.It | is | pointed | out | that army | ||
| we are of the opinion that answer to | |||||||
| personnel are put in the afore- | |||||||
| the question posed has to be in the | |||||||
| a rmative. | mentioned | medical | categories | i.e. | |||
| SHAPE on the basis of a periodical | |||||||
| 13.It needs little emphasis that | |||||||
| Medical Board which is held for an | |||||||
| tness of the personnel of Armed | individual after the age of 35 years | ||||||
| Forces at all levels is of paramount | and thereafter at an interval of every | ||||||
| consideration and there cannot be | 5 years. If the army personnel is in | ||||||
| any compromise on that score. It is | SHAPE I, he is 12 | ||||||
| with this object in view, the Legisla- | not required to undergo further | ||||||
| ture has enacted the Army Act, 1950; | |||||||
| Medical Board except annual medi- | |||||||
| the Armed Forces Medical Services | |||||||
| Act, 1983 and framed the Rules. | cal examination. However, the army | ||||||
| Army Orders are also issued from | personnel who is placed in SHAPE | ||||||
| time to time in order to give e ect | II and SHAPE III on the annual | ||||||
| to these statutory provisions in let- | medical examination, he is placed in | ||||||
| ter and spirit. As per the procedure | low medical category (temporary) for | ||||||
| 6 | a period of | six months. | After | six | |||
| months, he is placed before the Re- | |||||||
| (1981) 1 SCC 485 | |||||||
| view Medical Board and if at the end | |||||||
| 11 | of six months, his category remains | ||||||
| detailed in the written submis- | unchanged, that category is awarded | ||||||
| sions, led on behalf of the ap- | to him on permanent basis and he is | ||||||
| pellants, annual or periodic medi- | placed in low medical category (per- | ||||||
| cal examination of the army per- | manent). After award of low medi- | ||||||
| sonnel is done on certain speci c | cal category (permanent), the army | ||||||
| norms. The medical status of an | personnel is placed before the Re- | ||||||
| army personnel is xed on the ba- | view Medical Board after every two | ||||||
| sis of these norms, containing ve | years. | In | Review | Medical Board, | |||
| components viz. (a) psychology (b) | the medical category of the personnel | ||||||
| hearing (c) appendarist (d) physi- | may be changed keeping in view the | ||||||
| cal and (e) eye { which is collec- | change in any component of SHAPE. | ||||||
| tively known as SHAPE. The med- | Thus, SHAPE II or SHAPE III may | ||||||
| ical status SHAPE is again char- | be placed in SHAPE I also and vice | ||||||
| acterised in ve components known | versa. It is the say of the appel- | ||||||
| as:{ SHAPE I{physically t for all | lants that the release of certain med- | ||||||
| purposes. SHAPE II amp; SHAPE | ical category (permanent) personnel | ||||||
| III{not t for certain duties and are | is regulated | by Army Order No.46 | |||||
| 580 | Bachan Singh v. Union of India 2008 |
of 1980, which contemplates that the army personnel, who is placed in low medical category (permanent), is to be retained in service for a minimum 13
period of 15 years (for Sepoy) and 20 years (for JCO) and during this period he is entitled to all promotions as per the rules; the discharge of low medical category is regulated as per the above-mentioned Army Or- der and before the discharge, the per- sonnel is placed before the Release Medical Board for a mandatory ex- amination before the order of dis- charge is passed. An army person- nel who is categorised as SHAPE V is considered to be not t for fur- ther service of the Army and on plac- ing such a personnel in SHAPE V he is mandatorily brought before In- validating Board in terms of Rule 13 (3), whereas an army personnel who is in SHAPE II or in SHAPE III, is to undergo di erent Medical Boards apart from annual medical examina- tion. The said personnel are not to- tally un t but at the same time they are not t for all the army duties and, therefore, they are retained for 15 years or 20 years, as the case may be, on the sheltered post mandato- rily.
15.Having noticed the basic pa- rameters which are applied for cat- egorisation of the physical status of the army personnel, 14
it will be useful to brie y refer to relevant statutory provisions.
16.Chapter IV of the Army Act, 1950 (for short `the Act') deals with the conditions of service of the army
personnel. Section 18 of the Act pro- vides that every person subject to the Act shall hold o ce during the pleasure of the President. Section 19 clothes the Central Government with the power of dismissal or re- moval from service any person cov- ered under the Act subject to the provisions of the Act and the Rules and Regulations made thereunder. Section 20 provides for dismissal, re- moval or reduction by the Chief of the Army Sta and by other o cers. Section 22 of the Act provides for re- tirement, release or discharge from the service by such authority and in such manner as may be prescribed. Sub-Section (xix) of Section 3 of the Act states that `prescribed' means prescribed by rules made under the Act. Section 191 empowers the Cen- tral Government to make rules as re- gards removal, retirement, release or discharge from the service of persons subject to the Act. 15
Pursuant to and in furtherance of the power conferred on the Central Government under Section 191 of the Act, the Central Government framed the Rules.
17.Rule 13 which is the pivotal provision reads thus: 13. Authorities empowered to authorise discharge.{
(1) Each of the authorities speci-ed in column 3 of the Table be- low, shall be the competent author- ity to discharge from service person subject to the Act speci ed in col- umn 1 thereof on the grounds spec- i ed in column 2. (2) Any power conferred by this rule on any of the aforesaid authorities shall also be ex- ercisable by any other authority su-
581
perior to it. [(2A) Where the Cen- tral Government or the Chief of the Army Sta decides that any person or class or persons subject to the Act should be discharged from service, ei- ther unconditionally or on the ful ll- ment of certain speci ed conditions, then, notwithstanding anything con- tained in this rule, the Command- ing O cer shall also be the compe- tent authority to discharge from ser- vice such person or any person be- longing to such class in accordance with the said decision.] (3) In this table commanding o cer means the o cer commanding the corps or de- partment to which the person to be discharged belongs except that in the case of junior commissioned o cers and warrant o cers of the Special Medical Section of the Army Med- ical Corps, the commanding o cer means the Director of the Medical Services, Army, and in the case of junior commissioned o cer and war- rant o cers of Remounts, Veterinary and Farms, Corps, the Command- ing O cer means the Director Re- mounts, Veterinary and Farms. TA- BLE
Category Grounds of Competent Manner of discharge authority to dis- charge authorise discharge
1 2 3 4
Junior I.(i)(a) On completion Commanding Commissioned of the period of O cer O cers service or tenures peci ed in the Regulations for his rank or appointment, are on reaching the age limit whichever is earlier, unless trainee on the active list for further speci ed period with the sanction of the Chief of the Army
Sta or on becoming eligible for re- lease under the Regulations.
(b) At his own Commanding re- quest on transfer O cer to the pen- sion establishment
(ii)Having been Commanding To be carried out found medically O - cer only on the un t for further rec- ommendation service. of an Invali- dating Board.
(iii)All other classes (a) In the
case If the discharge of discharge. of Junior is not at the Commis- sioned request of the O cers Junior granted direct Commissioned com- missions O cer the during the rst competent 12 months authority be- fore service Area/ sanctioning the Di- visional discharge shall if Comman- der the circumstances of the case per- mit give the Junior Commissioned O cer concerned an opportunity to show cause against the order of dis- charge.
(b)In the case of JCOs, not cov- ered by (a), serving in any Army or Command the General O cer Commanding-in-Chief of that Army or command if not below the rank of Lieutenant General.
(c)In any other case the Chief of the Army Sta .
18.The afore-extracted Rule 13
(1) clearly enumerates the author- ities competent to discharge from service, the speci ed person; the grounds of discharge and the man- ner of discharge. It is manifest that when in terms of this Rule an army personnel is discharged on comple- tion of service or tenure or at the request of the person concerned, no
| 582 | Bachan Singh v. Union of India 2008 |
speci c manner of discharge is pre- scribed. Naturally, the Regulations or Army Orders will take care of theeld not covered by the Rules. How- ever, for discharge on other grounds, speci ed in Column (2) of the Table, appended to the Rule, the manner of discharge is clearly laid out. It is plain that a discharge on the ground of having been found medically un t for further service is speci cally dealt with in Column (I) (ii) of the Ta- ble, which stipulates that discharge in such a case is to be carried out only on the recommendation of the Invali- dating Board. It is a cardinal princi- ple of interpretation of a Statute that only those cases or situations can be covered under a residual head, which are not covered under a speci c head. It is, therefore, clear that only those cases of discharge would fall within the ambit of the residual head, viz. I (iii) which are not covered under the preceding speci c heads. In other words, if a JCO is to be discharged from the service on the ground of medically un t for further service, ir- respective of the fact whether he is or was in a low medical category, his or- der of discharge can be made only on the recommendation of an Invalidat- ing Board. The said rule being clear and unambiguous is capable of only this interpretation and no other.
19. Having reached the said conclusion, we feel that the appel- lants were bound to follow Rule 13
(3) (I) (ii), more so having placed the respondent in low medical cate- gory (permanent) for a period of two years from October, 2001 he was dis- charged from service on 31st August,
2002, relying on the recommendation of the Re-categorisation Board held on 24th October, 2001. As noted in the show cause notice, extracted above, the said Board had placed the respondent in permanent low medi- cal category. Be that as it may, the main ground of discharge being med- ical un tness for further service, the appellants were bound to follow the prescribed rule.
20. It is well settled rule of ad- ministrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in vi- olation of them. This rule was enun- ciated by Justice Frankfurter in Vit- eralli v. Saton7, where the learned Judge said:
An executive agency must be rig- orously held to the standards by which it professes its action to be judged... Accordingly, if dismissal from employment is based on a de-ned procedure, even though gen- erous beyond the requirements that bind such agency, that procedure must be scrupulously observed...This judicially evolved rule of administra- tive law is now rmly established and, if I may add, rightly so. He that takes the procedural sword shall per- ish with that sword.
21. The afore-extracted obser- vations were approved and followed in Sukhdev Singh amp; Ors. v. Bhagatram Sardar Singh Raghuvan- shi amp; Anr.8 and then again in Dr. Amarjit Singh Ahluwalia v. The State of Punjab amp; Ors.9
583
wherein, speaking for a three-Judge Bench, P.N. Bhagwati, J. had ob- served that though the above view was not based on the equality clause of the United States Constitution and it was evolved as a rule of ad- ministrative law but the principle re- mains the same, namely, that arbi- trariness should be eliminated in a State action. (Also see: Ramana Da- yaram Shetty v. International Air- port Authority of India Ors.10).
22.In view of the foregoing inter- pretation of the relevant rule, we are in complete agreement with the High Court that where a JCO is sought to be discharged on the ground of med- ical un tness for further service, his case has to be dealt with strictly in accordance with the procedure con- templated in Clause I (ii) in Col- umn 2 of the Table appended to Rule 13. The Rule prescribes a par- ticular procedure for discharge of a JCO on account of medical un tness, which must be followed and, there- fore, any order of discharge passed without subjecting him to Invalidat- ing Board would fall foul of the said statutory rule.
23.In the present case, it is ev- ident from Column 9 of the or- der of discharge that respondent has been discharged on account of his having been placed in a low med- ical category (permanent) by the Re-categorisation Board. As noted above, he was not discharged imme- diately and was apparently detailed for sheltered appointment. However, suddenly within a few months of his evaluation by the Re-categorisation Board, he was served with a show
cause notice, seeking to discharge him on the aforementioned grounds. We are convinced that although the discharge is purportedly shown to be also on account of non-availability of a sheltered appointment, the main ground for discharge was undoubt- edly on account of permanent low medical category i.e. medical un t- ness. In that view of the matter, the order of discharge of the respon- dent would not fall under the residual ground, namely, I (iii) in Column 2 of the Table.
24. That takes us to the next question whether the case of the re- spondent for discharge could be dealt with in accordance with Army Order 46 of 1980, de hors Rule 13, as con- tended by the appellants.
25.Relevant portion of the said order reads as follows: AO 46/80 Disposal of Permanent Low Medical Category Personnel other than O - cers
Aim
1. The aim of this Army Or- der is to lay down implementa- tion instructions for the disposal of permanent low medical category JCOs/OR in terms of Min of Def Letter No. A/32395/VIII/Org 2 (MP) (c)/713-S/A/D (AG) dated 10 May, 77 as amended vide Corrigen- dum No. A/32395/X/Org 2 (MP) (c)/7167/A/D (AG) dated 26 Nov 79, reproduced as Appendice `A' and `B' respectively to this order.
Retention
2. General Principles
(a) The employment of perma- nent low medical category person-
| 584 | Bachan Singh v. Union of India 2008 |
nel, at all times, is subject to the availability of suitable alter- native appointments commensurate with their medical category and also to the proviso that this can be jus- ti ed in the public interest, and that their retention will not exceed the sanctioned strength of the reg- iment/corps. When such an ap- pointment is not available or when their retention is either not consid- ered necessary in the interest of the service or it exceeds the sanctioned strength of the regiment/corps, they will be discharged irrespective of the service put in by them.
(b) Ordinarily, permanent low medical category personnel will be retained in service till completion of 15 years service in the case of JCOs and 10 years in the case of OR (in- cluding NCOs). However, such per- sonnel may continue to be retained in service beyond the above period until they become due for discharge in the normal manner subject to their will- ingness and the ful lment of the stip- ulation laid in Sub Para (a) above.
3. All personnel retained in ser- vice in terms of Para 2 above will, un- der all circumstances, be discharged on completion of their engagement periods/retiring service limits. For this purpose, NCOs and JCOs will be treated as under:- (a) NCOs will be discharged on completion of the retiring service limits appropriate to ranks as opposed to the extended limits laid down in AO 13/77. How- ever, their retention beyond the con- tractual period of engagement will be regulated under the provisions of Paras 144 to 147 of Regulations for
the Army 1962.
(b) JCOs will be discharged on completion of the normal retiring ser- vice limits as opposed to the ex- tended limits laid down in AO 13/77.
4.Personnel su ering from pul- monary tuberculosis, including those who may be cured of the disease, will be disposed of in accordance with the provisions of Min of Def letter No. 22679/DGAFMS/DG- 3A/2721/D(ME:- dated 18 Jul 74 (reproduced in AO 150/75), as amended/ampli ed from time to time.
5.Cases of all permanent low medical category personnel will be reviewed by all concerned accord- ingly. In the case of those personnel who become due for discharge as per the instructions contained in the pre- ceding paragraphs, immediate action will be taken in the normal manner to carry of their discharge, as expe- ditiously as possible.
6.This order only lays down the general policy and procedure with regard to the disposal of per- manent low medical category per- sonnel. The actual discharge will, however, be carried out in accor- dance with the provisions of Min of Def letter No. A/32395/VIII/Org 2 (MP) (c)/713-S/a/D (AG) dated 10 May 77, as amended vide Corrigen- dum No. A/32395/X/Org (MP) (c)/ 7167/A/D (AG) dated 26 Nov 79 (reproduced as Appendices `A' and `B' respectively) and this HQ letter No. 8861/AG/PS 2 (c) dated 18 Aug 64, read with letter No 8861/AG/PS 2(c) dated 26 Mar/1 Apr 70.
585
7.Cases of permanent low med- ical category personnel already de- cided under the existing provisions, will not be re-opened.
8.This supersedes all pre- vious instructions on the subject. A/32395/X/Org 2(MP)
26. It is manifest that the said Army Order has been issued for dis- posal of permanent low medical cat- egory personnel and merely contem- plates that the employment of per- manent low medical category person- nel at all times, is subject to the availability of suitable alternative ap- pointments commensurate with their medical categories and also subject to the conditions that such a shel- tered appointment can be justi ed in the public interest. A plain read- ing of the Army Order shows that it comes into operation after an opinion has been formed as to whether a par- ticular personnel is to be retained in service or not, if so for what period. If a person is to be retained in ser- vice despite his low medical category for a particular period as stipulated in the Army Order 46 of 1980, the question of subjecting him to Inval- idating Board may not arise. How- ever, if a person is to be discharged on the ground of medical un tness, at that stage of his tenure of ser- vice or extended service within the meaning of the Army Order, he has to be discharged as per the proce- dure laid down in Clause I (ii) in Column 2 of the said Table. Simi- larly, Sub-rule (2A) of Rule 13, heav- ily relied upon by the appellants does not carry the case of the appellants any further. It is only an enabling
provision to authorise the command- ing o cer to discharge from service a person or a class of persons in re- spect whereof a decision has been taken by the Central Government or the Chief of Army Sta to discharge him from service either uncondition- ally or on the ful lment of certain speci ed conditions. The said pro- vision is not in any way in con ict with the scope of the remaining part of Rule 13, so as to give it an overrid- ing e ect, being a non obstante pro- vision.
27. For the foregoing reasons, we wholly agree with the reasoning and the conclusion of the High Court that the discharge of the respondent was not in accordance with the pre- scribed procedure and was, therefore, illegal. We do not nd any illegality or in rmity in the impugned judg- ment/order, warranting our interfer- ence. The appeal, being devoid of any merit, is dismissed accordingly with costs.
SLP (C) NOS. 14338-14339 OF 2008 amp; SLP (C) NO.15430 OF 2008
28.These tagged special leave pe- titions have been preferred against the orders passed by the High Court, declining to grant interim relief to the writ petitioners. Since the main issue now stands decided, there is no point in entertaining these petitions. All the petitions are dismissed accord- ingly without observing anything on merits. It will be open to the High Court to now take up the main writ petitions for disposal in accordance with law.
| 586 | Bachan Singh v. Union of India 2008 | |
| J. (C. K. THAKKER) | ||
| NOVEMBER 7, 2008. | ||
| J. (D.K. JAIN) | ||
| NEW DELHI; | ||
Chapter 52
Union of India v. V. N. Singh 2010
Union of India Ors. v. V. N. Singh [2010] INSC 532 (8 April 2010)
Judgment
UNION OF INDIA ORS v. V.N. SINGH
(Civil Appeal No (s). 32 of 2003) APRIL 08, 2010 [Harjit Singh Bedi and J.M. Panchal, JJ.] 2010 (4) SCR 454 The Judgment of the Court was delivered by J.M. PANCHAL, J.
1. The instant appeal is directed against Judgment dated March 15, 2002 rendered by the High Court of Delhi in C.W.P. No. 5451 of 1998 by which (1) the order dated Octo- ber 30, 1996 invoking Section 123 of the Army Act and taking the respon- dent in close custody (2) the nd- ings recorded by General Court Mar- tial holding the respondent guilty of some of the charges and imposing punishment of forfeiture of 8 years past service of the respondent for the purposes of the pension vide order dated April 3, 1997 (3) the order dated June 14, 1997 passed by Mr. K.K. Verma, the then Major Gen-
eral, General O cer Commanding, 22 Infantry Division, directing the General Court Martial to re-assemble in open Court at Meerut on June 28, 1997 for reconsidering its ndings on the rst, second, third, fourth, sixth, seventh and eighth charges levelled against the respondent and the ade- quacy of the sentence of forfeiture of 8 years of past service for the pur- pose of pension awarded to him by the General Court Martial (4) the re- vised order dated July 2, 1997 passed by General Court Marital adhering to its earlier ndings but revoking its earlier order of sentence and impos- ing sentence of forfeiture of 11 years past service for the purposes of pen- sion and severe reprimand subject to he con rmation by Major General, General O cer Commanding and (5) the communication dated April 8, 2000 addressed by Col. Dy. CDR Mr. P.K.Sharma promulgating the order of the Con rming Authority by which sentence of forfeiture of 11 years past service of the respondent for the purposes of pension, was con-
| 588 | Union of India v. V. N. Singh 2010 | ||||||||||
| 17, 1993 he submitted | his report | ||||||||||
| rmed and (6) the communication | |||||||||||
| dated May 15, 2000 by DDA and | to Brigadier K.S.Bharucha, DDST, | ||||||||||
| QMG Mr. G.Vinod for CDR men- | who in turn forwarded the report | ||||||||||
| tioning that the promulgation order | on May 27, 1993 to Major General | ||||||||||
| carried out on May 15, 2000 was | of Army Supply Corps (`ASC' for | ||||||||||
| handed over to the respondent and | short) Headquarters Western Com- | ||||||||||
| order dated April 17, 2000 promul- | mand, | Chandimandir. | In that | re- | |||||||
| gating punishment of forfeiture of 8 | port, the DDST recommended clo- | ||||||||||
| years past service of the respondent | sure of the case. | ||||||||||
| for the purposes of pension and se- | The Major General, ASC, Head- | ||||||||||
| vere reprimand was de-promulgated | |||||||||||
| quarters Western Command, did not | |||||||||||
| and cancelled, are set aside, on the | consider the case appropriate for clo- | ||||||||||
| ground that trial of the respondent | sure. | He therefore, forwarded | the | ||||||||
| by Court Martial was time barred in | papers to the Headquarters Western | ||||||||||
| view of the provisions of Section 122 | Command. | The Headquarters sug- | |||||||||
| (1)(b) of the Army Act, 1950 . | gested to the Major General by let- | ||||||||||
| 1. | The facts emerging from the | ter dated June 12, 1993 to seek ex- | |||||||||
| record of the case are as under:- | planation of | the respondent. | The | ||||||||
| The respondent i.e. Mr. V.N.Singh | Major General ASC therefore issued | ||||||||||
| who was Lt. | Col. | was | posted as | a show-cause notice dated June 18, | |||||||
| O ciating Commandant in 4 Re- | 1993 to the respondent and sought | ||||||||||
| served Petroleum Depot (`4 RPD' for | his explanation on the point of pro- | ||||||||||
| short), | Delhi Canotnment. | During | cedural lapses in local purchase. The | ||||||||
| the inspection of 4RPD, certain ir- | respondent in his reply dated July | ||||||||||
| regularities were noticed with regard | 6, 1993 admitted certain procedural | ||||||||||
| to local purchase of the Hygiene and | lapses on the part of 4 RPD and re- | ||||||||||
| Chemicals in the month of May 1993. | gretted the same, since such lapses | ||||||||||
| Therefore, by a letter dated May 5, | were due to practical problems. | ||||||||||
| 1993, the then Lt. | Col. | P.Oomen, | Thereafter, the DDST accepted | ||||||||
| who was Additional Director, Sup- | |||||||||||
| the explanation given by the re- | |||||||||||
| ply and Transport, Delhi area was | spondent and again recommended | ||||||||||
| directed by the then Brigadier Mr. | the Headquarters Western Command | ||||||||||
| K.S.Bharucha, who was holding the | (ST) Chandigarh to treat the case as | ||||||||||
| post of Deputy Director, Supply and | closed if deemed t by communica- | ||||||||||
| Transport, Headquarters Delhi area | tion dated July 9, 1993. On Septem- | ||||||||||
| (`DDST' for short), to carry out pre- | ber, 9, 1993, the Major General | ||||||||||
| liminary investigation of local pur- | ASC, Headquarters Western Com- | ||||||||||
| chase of Hygiene and Chemicals as | mand, endorsed certain remarks in | ||||||||||
| well as other fuel oils and lubri- | the pen picture of the respondent | ||||||||||
| cant items by 4 RPD, during the | while writing his ACR. On January | ||||||||||
| year 1992- 93. | Accordingly, prelim- | 8, 1994 a Technical Court of Inquiry | |||||||||
| inary investigation was carried out | was convened by Brigadier Nar- | ||||||||||
| by Lt. | Col. | P.Oomen. | On May | simhan, who had replaced Brigadier | |||||||
589
K.S.Bharucha, as DDST. The Lt. Col. Ram Darshan of 226 Com- pany ASC Supplies was asked to act as the Presiding O cer. The re- port along with the proceedings of Technical Court of Inquiry were for- warded to the DDST. The DDST recommended to the Major General ASC, Headquarters Western Com- mand, Vide communication dated March 3, 1994 to go for a thor- ough investigation by Sta Court of Inquiry. Therefore, on May 7, 1994 a Sta Court of Inquiry was convened pursuant to the orders of the General O cer Commanding-in- Chief, (`GOC-in-C' for short) West- ern Command. Before Sta Court of Inquiry, (`S.C.I.' for short) wit- nesses were examined and documents produced. The Sta Court of In- quiry concluded its proceedings and submitted its recommendations on August 31, 1994 blaming the re- spondent speci cally along with few other personnel for irregularities, in the local purchase of Hygiene and Chemicals during the period 1992- 93. After examining the recom- mendations of SCI, the GOC, Delhi area, Major General A.R.K. Reddy, recommended on October 19, 1994, disciplinary action against the re- spondent. Thereafter, the GOCin- C Western Command, Lt. Gen. R.K. Gulati, directed to initiate dis- ciplinary action against the respon- dent vide communication dated De- cember 3, 1994. On August 23, 1995 the disciplinary action was com- menced against the respondent by way of hearing of parties as required by Rule 22 of the Army Rules and a direction for recording of summary
of evidence was ordered by the Com- manding O cer i.e. Commander 35 Infantry Brigade under whom the re- spondent was working at the relevant time. The Commanding O cer, vide order dated October 30, 1996 invoked the provisions of Section 123 of the Army Act 1950, and took the respon- dent into close custody as superannu- ation of the respondent was due on October 31, 1996 and it was appre- hended that the respondent wouldee the course of justice.
The respondent led Criminal Writ Petition 726 of 1996 before the Delhi High Court challenging the order dated October 30, 1996 on the ground that Section 123 of the Army Act was wrongly invoked and trial if any by GCM was barred by limitation under Section 122 of the Army Act. The respondent also prayed to direct the authority to pay compensation at the rate of Rs. 50,000/- for each day of illegal de- tention. By an order dated Decem- ber 3, 1996, the High Court stayed the operation of order dated Octo- ber 30, 1996 and directed the respon- dent to raise the points mentioned in his Writ Petition, before General Court Martial. On December 11, 1996, the General O cer Command- ing, 22 Infantry Division issued an order convening General Court Mar- tial (`GCM' for short). Accordingly, GCM was convened. By order dated April 3, 1997, the GCM found the re- spondent guilty of some charges and not guilty of some other charges. By the said order, the GCM imposed the punishment of forfeiture of 8 year's past service for the purpose of pen-
| 590 | Union of India v. V. N. Singh 2010 |
sion on the respondent subject to the con rmation of the same by the Ma- jor General, General O cer Com- manding. This report of the GCM was sent to the Con rming Author- ity. The Con rming Authority vide order dated June14, 1997, sent back the report to GCM, under the pro- visions of Section 160 of the Army Act to revise/reconsider the exoner- ation of the respondent from some of the charges and decide whether the punishment imposed on the re- spondent was lenient or not. There- upon, the respondent led Writ Pe- tition No. 5451 of 1997 challenging aforementioned order dated June 14, 1997 as well as validity of Sections 153, 154 and 160 of the Army Act, 1950. Writ Petition No. 5451 of 1997 was led by the respondent with- out prejudice to the contentions and averments made in Criminal Writ Pe- tition No. 726 of 1996.
In view of the directions from the Con rming Authority, GCM was convened. The GCM submitted its report dated July 2, 1997. The re- port indicates that the GCM adhered to its earlier nding but passed a fresh order of sentence forfeiting 11 years of past service of the respon- dent for the purpose of pension as well as the punishment of severe rep- rimand. A copy of the order dated July 2, 1997 was also forwarded to the respondent. On receipt of the or- der dated July 2, 1997 the respon- dent brought to the notice of the Court hearing Criminal Writ Peti- tion No. 726 of 1996, the subsequent developments which had taken place. The Court noticed that order dated
June 14, 1997 passed by the Compe- tent Authority, was subject matter of challenge, in Writ Petition No. 5451 of 1997 which was pending. On sub- sequent events being brought to the notice of the Court, the Court was of the opinion that keeping Criminal Writ Petition No. 726 of 1996 pend- ing was of no use and ends of justice would be met if liberty is reserved to amend memorandum of Writ Pe- tition No. 5451 of 1997 and to raise all questions in the said pending Writ Petition. After reserving necessary liberty to the respondent, the Court disposed Criminal Writ Petition No. 726 of 1996 by an order dated Au- gust 19, 1998. The order dated July 2, 1997 passed by GCM was con- sidered by the Con rming Author- ity. The Con rming Authority ap- proved the nding of GCM and im- position of sentence of forfeiture of 11 years past service of the respondent for the purpose of pension. However, the Con rming Authority did not ap- prove/con rm the punishment of se- vere reprimand imposed by the GCM on the respondent. By communica- tion dated April 8, 2000 the order of the Con rming Authority was pro- mulgated.
Thereafter, Vide communication dated May 15, 2000 promulgation of order was handed over to the respon- dent. Thereafter, the respondent moved an application for amend- ment of Writ Petition No.5451 of 1997 which was allowed. By way of amendment the respondent chal- lenged validity of orders dated April 3, 1997, July 2, 1997, October 30, 1996, April 8, 2000 and May 15, 2000
591
over and above claiming compensa- tion. The High Court by Judgment dated March 15, 2002 has allowed the Writ Petition and quashed GCM proceedings as well as the sentence imposed upon the respondent after holding that GCM proceedings were initiated after expiry of the period of limitation prescribed by Section 122(1) (b) of the Army Act, 1950, which has given rise to the instant appeal.
3.This Court has heard Ms. Indira Jaisingh, the Learned Addi- tional Solicitor General for the ap- pellants and Mr. Yatish Mohan, the learned advocate for the respondent at great length and in detail. This Court has also considered the doc- uments forming part of the instant appeal.
4.Ms. Indira Jaisingh, Learned ASG argued that in terms of Sec- tion 122(1)(b) of the Army Act, the then Brigadier K.S.Bharucha was not the person aggrieved by the of- fence and neither the then Brigadier K.S.Bharucha nor Major General BS Suhag were competent to initiate action against the respondent but G.O.C. Delhi area was Disciplinary Authority of the respondent who learnt about the o ence having been committed by the respondent for therst time on receipt of the report of Sta Court of Inquiry submitted on December 3, 1994 and as the G.C.M. commenced the trial on December 17, 1996 the same could not have been treated as time barred under Section 122 (1)(b) of the Army Act. It was asserted that the Technical Court of Inquiry could not come to
a de nite conclusion about the cor- rect details of purchase of Hygiene and Chemicals nor any de nite con- clusion could be reached about the persons responsible for the irregular- ities but the involvement of the re- spondent came to the light only in August 1994 when the Sta Court of Inquiry submitted its report and therefore the High Court was not jus- ti ed in quashing the proceedings of G.C.M. on the ground that they were time barred. What was highlighted by the Learned A.S.G. was that in the letter dated May 27, 1993 ad- dressed by Brigadier K.S.Bharucha to MG ASC Headquarter Western Command, there was no mention whatsoever about the respondent be- ing the person who had committed the irregularities except a reference to the fact that certain procedural lapses had taken place on the part of 4RPD and as the said letter was apparently addressed with a view to closing the case in total disregard of the facts and circumstances of the case, the said letter could not have been taken into consideration for the purpose of coming to the conclu- sion that the proceedings of G.C.M. were time barred. After referring to the A.C.R. of the respondent writ- ten by Major General BS Suhag it was argued that what becomes ap- parent there from is that the respon- dent had failed to monitor the local purchase of Hygiene and Chemicals but there was no mention that the respondent was himself involved in it and therefore the date on which the A.C.R. was written also could not have been taken into considera- tion for the purpose of determining
| 592 | Union of India v. V. N. Singh 2010 |
whether the proceedings of G.C.M. were time barred. The Learned ASG stressed that the period of limita- tion for the purpose of trial of the respondent commenced on December 3, 1994, when the then GOC-in-Chief Western Command who is compe- tent authority came to know about the commission of o ence by the re- spondent and directed to take disci- plinary action against the respondent and as period of limitation of three years in terms of Section 122(1)(b) expired on December 2, 1997 the same could not have been treated as time barred. The Learned Counsel asserted that the Judgment of the High Court questioned in the appeal is not only erroneous on the facts brought on the record of the case but also misinterprets the provisions of the Army Act and therefore the same should be set aside.
5. The Learned Counsel for the respondent argued that after scru- tinising the entire documentary ev- idence the High Court has rightly reached to the conclusion that the trial of the respondent by GCM was time barred and rightly allowed the Writ Petition led by him. It was maintained that during the inspec- tion of 4RPD, certain irregularities were noticed with regard to the lo- cal purchase of Hygiene and Chem- icals by 4RPD Delhi in the month of May 1993 and the respondent who was O ciating Commandant of said 4 RPD was immediately re- moved from the said post and was placed as O ciating Commandant of 5033 Army Service Corps battal- ion functioning directly under Head-
quarters 33 Corps, which indicates that in May 1993 the so-called in- volvement of the respondent in the irregularities noticed with regard to the local purchase of the Hygiene and Chemicals, had become evident and therefore the proceedings initi- ated against him should be treated as time barred. The Learned Coun- sel for the respondent drew the at- tention of the Court to the communi- cation dated May 5, 1993 addressed by DDST Brigadier K.S.Bharucha on behalf of the Headquarter Delhi Area to Lt. Col. P. Oomen, ADST ask- ing him to conduct the inquiry into the lapses found in local purchase by 4 RPD, pursuant to which re- port was submitted to Headquarter Delhi Area, wherein it was concluded that irregularities were committed in purchase of Hygiene and Chemicals and therefore the period of limita- tion would start running from May 27, 1993 when the said report was submitted by Mr. K.S.Bharucha, DDST to Major General, Army Ser- vice Corps at Headquarter West- ern Command. According to the Learned Counsel for the respondent, the DDST issued a notice dated June 18, 1993 calling upon the respondent to explain procedural lapses in lo- cal purchase of Hygiene and Chem- icals by 4RPD wherein there is ref- erence to instructions of Headquar- ter Western Command dated June 12, 1993 and therefore the relevant period for the purpose of deciding the question whether the proceedings were time barred or not should be taken to be June 12, 1993. What was asserted was that while writing the ACR of the respondent on Septem-
593
ber 6, 1993 the Headquarter West- ern Command, Chandigarh in the column of brief comments had men- tioned that the respondent needed to exercise more discretion and caution while dealing with funds and there- fore the said date would also be rel- evant for the purpose of determining the question whether the proceed- ings were time barred. It was ar- gued that the order dated October 30, 1996, taking the respondent into close custody under Section 123 of the Army Act, 1950, was passed be- cause the respondent was charged for the o ence of procedural lapses in lo- cal purchase of Hygiene and Chemi- cals during his tenure as O ciating Commandant of 4RPD Delhi Area Canotnment and therefore the date on which the respondent was taken into close custody would also be rel- evant for the purpose of determining the question whether the proceed- ings initiated against the respondent were time barred. What was asserted was that the respondent was iden- ti ed as the o ender rstly in May 1993 after the report of Lt. Col. P. Oomen and secondly on May 27, 1993 when DDST Headquarter Delhi Area on behalf of GOC had submit- ted the report of inquiry to Head- quarters ASC Western Command at Chandigarh concluding that, there was certainly procedural lapses in lo- cal purchase of Hygiene and Chemi- cals on the part of 4RPD which was under the control of the respondent and therefore the proceedings have been rightly treated as time barred by the High Court. According to the Learned Counsel for the respondent the competent authority of the re-
spondent was his Commanding Of-cer i.e. Brigadier K.S.Bharucha, DDST and as the competent author- ity had initiated action on October 30, 1996 by detaining the respondent, the proceedings in question should be treated as time barred.
The Learned Counsel argued that the person aggrieved within the meaning of Section 122 of the Act, means the person should be answer- able to the superiors in chain of com- mand for the act, commission or omission done by his subordinate and as DDST was aggrieved person un- der whom the respondent was dis- charging duties, the period of limi- tation would start running from the date of report of the Court of Inquiry, when identity of the o ence and of- fender was ascertained and therefore the well reasoned judgment of the High Court should be upheld by this Court.
6. Section 122 of the Army Act,
1950 prescribes period of limitation for trial by Court Martial of any person subject to the provisions of the Act for any o ence committed by him. The said Section reads as under:- "Section 122. Period of lim- itation for trial (1) Except as pro- vided by sub- section (2), no trial by court-marital of any person sub- ject to this Act for any o ence shall be commenced after the expiration of a period of three years and such period shall commence- (a) on the date of the o ence; or (b) where the commission of the o ence was not known to the person aggrieved by the o ence or to the authority compe- tent to initiate action, the rst day
| 594 | Union of India v. V. N. Singh 2010 | ||
| on which such o ence comes to the | cles and the prosecution be allowed | ||
| knowledge of such person or author- | to rake up any skeleton from any cup- | ||
| ity, whichever is earlier; or (c) where | board at any time when the accused | ||
| it is not known by whom the of- | may have no further materials, oral | ||
| fence was committed, the rst day | or documentary, to prove that the | ||
| on which the identity of the o ender | skeleton is not from his cupboard. If | ||
| is known to the person aggrieved by | the device is left open to the prose- | ||
| the o ence or to the authority com- | cution to convene a Court Martial at | ||
| petent to initiate action, whichever is | its leisure and convenience, Section | ||
| earlier. | 122 will lose all signi cance. | Sec- | |
(2) The provisions of sub-section tion 122 is a complete Code in it-
(1)shall not apply to a trial for an of- self so far as the period of limita-
| fence of desertion or fraudulent enrol- | tion is concerned for not only it pro- | ||
| ment or for any of the o ences men- | vides in Sub-section (1) the period | ||
| tioned in section 37. | of limitation for such trials but spec- | ||
| i es in Sub-section (2) thereof, the | |||
| (3) In the computation of the pe- | |||
| o ences in respect of which the limi- | |||
| riod of time mentioned in sub-section | tation clause would not apply. Since | ||
| (1), any time spent by such person as | the Section is in absolute terms and | ||
| a prisoner of war, or in enemy terri- | no provision has been made under | ||
| tory; | the Act for extension of time, it is | ||
| or in evading arrest after the com- | |||
| obvious that any trial commenced af- | |||
| mission of the o ence, shall be ex- | ter the period of limitation will be | ||
| cluded. | patently illegal. | ||
| (4) No trial for an o ence of de- | The question of limitation to be | ||
| sertion other than desertion on ac- | |||
| determined under Section 122 of the | |||
| tive service or of fraudulent enrol- | Act | is not purely a question of | |
| ment shall be commenced if the per- | law. | It is a mixed question of fact | |
| son in question, not being an o cer, | and law and therefore in exercise of | ||
| has subsequently to the commission | Writ Jurisdiction under Article 226 | ||
| of the o ence, served continuously | of the Constitution, ordinarily the | ||
| in an exemplary manner for not less | High Court will not interfere with the | ||
| than three years with any portion of | ndings of court Martial on question | ||
| the regular Army." | of limitation decided under Section | ||
| A fair reading of the abovemen- | 122 of the Army Act. | ||
| tioned Section makes it clear that af- | 7. Section 122 of the Army Act | ||
| ter the expiry of the period of lim- | |||
| in substance prescribes that no trial | |||
| itation, the Court Martial will ordi- | by Court Martial of any person sub- | ||
| narily have no jurisdiction to try the | ject | to the provisions of the Act | |
| case. The purpose of Section 122 is | for any o ence shall be commenced | ||
| that in a civilised society a person | after the expiration of a period of | ||
| should not live, for the rest of his | three years. It further explains as | ||
| natural life, under a Sword of Damo- | to when period of three years shall | ||
595
commence. It provides that the pe- riod of three years shall commence on the date of the o ence or where the commission of the o ence was not known to the person aggrieved by the o ence or to the authority compe- tent to initiate action, the rst day on which such o ence comes to the knowledge of such person or author- ity whichever is earlier. In view of the provisions of Section 122(1)(b) a question arises as to who is the per- son aggrieved within the meaning of the said Section. According to the respondent Brigadier K.S.Bharucha was the person aggrieved and the pe- riod of three years shall commence from the date when commission of o ence by the respondent came to his knowledge on May 17, 1993 when Lt. Col. P. Oomen submitted his report to Mr. Bharucha. The contention of the Union of India is that in terms of Army Act, Mr. K.S.Bharucha was neither the person aggrieved nor authority competent to initiate action and therefore the date on which the Lt. Col. P.Oomen submitted report would not be rel- evant for the purpose of determining the question whether the trial com- menced against the respondent was time barred. The term "the person aggrieved by the o ence" would be attracted to natural persons i.e. hu- man beings who are victims of an of- fence complained of, such as o ences relating to a person or property and not to juristic persons like an organ- isation as in the present case. The plain and dictionary meaning of the term "aggrieved" means hurt, angry, upset, wronged, maltreated, perse- cuted, victimised etc. It is only the
natural persons who can be hurt, an- gry, upset or wronged or maltreated etc. If a Government organisation is treated to be an aggrieved per- son then the second part of Section 122(1)(b) i.e. "when it comes to the knowledge of the competent author- ity to initiate action" will never come into play as the commission of o ence will always be in the knowledge of the authority who is part of the organisa- tion and who may not be the author- ity competent to initiate the action. A meaningful reading of the provi- sions of Section 122(1)(b) makes it absolutely clear that in the case of Government organisation, it will be the date of knowledge of the author- ity competent to initiate the action, which will determine the question of limitation.
Therefore, the nding of the High Court that Brigadier K.S.Bharucha was an aggrieved person is legally and factually incorrect and unsus- tainable. Further, neither Brigadier Mr. K.S.Bharucha, nor Major Gen- eral BS Suhag were competent to ini- tiate action against the respondent because the term "competent to initi- ate action" refers to the competency of the authority to initiate or direct disciplinary action against any per- son subject to the provisions of the Army Act. When an o ence or mis- conduct is alleged to have been com- mitted by a person subject to the Army Act, then the O cer in chain of command is required to take ac- tion for investigation of the charges and trial by court martial as per Sec- tion 1 Chapter V of the Army Rules or order Court of Inquiry and sub-
| 596 | Union of India v. V. N. Singh 2010 |
sequently nalise the Court of In- quiry under Section 2 Chapter VI of the Army Rules. These powers are vested in the o cers in chain of com- mand. Those powers are not vested with sta O cers. Since the respon- dent was commanding 4 RPD, his next o cer in command was GOC, Delhi Area and the power to take dis- ciplinary action was vested with him in terms of para 16(a)(i) of the De- fence Service Regulations, read with the Command and Control instruc- tions dated January 1, 1991 issued by the Headquarter Western Command. Therefore, Brigadier K.S.Bharucha had only technical control of 4RPD and had therefore recommended to his higher authority to close down the case but himself had not taken a decision to close down the case or to continue the case against the re- spondent. The power to initiate ac- tion in terms of Section 122(1)(b) of the Army Act was only with GOC Delhi Area who is next superior au- thority in chain of command. The record shows that even the power to convene a Court of Inquiry was avail- able only with GOC Delhi Area and GOC-in-C Westernc ommand since they are the authorities in command of body of troops and the power to convene a Court of Inquiry in terms of Army Rule 177 is vested only with an O cer in command of body of troops. The facts of the present case establish that the Tech- nical Court of Inquiry was convened by DDST Headquarter Delhi Area on January 8, 1994 which recommended examination of certain essential wit- nesses for bringing into light the cor- rect details and the persons respon-
sible for the irregularities by a Sta Court of Inquiry and accordingly the Sta Court of Inquiry was ordered on May 7, 1994 by GOC-in-C West- ern Command which concluded in its report dated August 31, 1994, men- tioning for the rst time the involve- ment of the respondent in the of- fence. The GOC Delhi Area i.e. the next Authority in chain of command to the respondent recommended on October 19, 1994 initiation of dis- ciplinary action against the respon- dent whereas the GOC-in-C Western Command gave directions on Decem- ber 3, 1994, to initiate disciplinary action against the respondent.
Therefore, the date of commence- ment of the period of limitation for the purpose of GCM of the respon- dent, commenced on December 3, 1994 when direction was given by GOCin-C Western Command to ini- tiate disciplinary action against the respondent. The plea that the date of submission of the report by Tech- nical Court of Inquiry should be treated as the date from which pe- riod of limitation shall commence has no substance. It is relevant to notice that no de nite conclusion about the correct details and the persons re- sponsible for the irregularities were mentioned in the report of Techni- cal Court of Inquiry. On the facts and in the circumstances of the case, this Court is of the view that the High Court wrongly concluded that the period of limitation expired on March 4, 1996. It is relevant to notice that the contents of the letter dated May 27, 1993 written by Brigadier K.S.Bharucha to Major General ASC
597
Headquarter Western Command do not mention at all, the respondent as the person who had committed the irregularities except for a reference that there had been certain procedu- ral lapses on the part of 4RPD.
The said letter was addressed by Brigadier K.S.Bharucha appar- ently with a view to closing the case in total disregard to the facts and the circumstances emerging from the case. This fact has been observed by the GOC-in-C Western Command who while giving direction to initiate administrative action against Major General K.S.Bharucha ordered initi- ation of departmental inquiry against the respondent. Even the reference to ACR of the respondent written by Major General Suhag only men- tions that the respondent had failed to monitor the local purchase of Hy- giene and Chemicals but there is no mention therein that the respondent was himself responsible for the irreg- ularities found to have been commit- ted in the purchase of Hygiene and Chemicals. It was only after the de- tailed investigation by Sta Court of Inquiry that the irregularities com-
mitted by the respondent and his role in the purchase of Hygiene and Chemicals came to light. On the facts and in the circumstances of the case this Court nds that the pe- riod of limitation for the purpose of trial of the respondent commenced on December 3, 1994 when the GOC- in-C Western Command being the competent authority directed disci- plinary action against the respondent in terms of Section 122(1)(b) of the Army Act. The period of three years from the direction dated December 3, 1994 would expire on December 2, 1997, whereas the GCM com- menced the trial against the respon- dent on December 17, 1996 which was well within the period of limi- tation of three years. Therefore the impugned Judgment is legally unsus- tainable and will have to be set aside.
8. For the foregoing reasons it is held that the GCM commenced trial, against the respondent within the pe- riod of limitation as prescribed by Section 122(1)(b) of the Army Act. The impugned Judgment is set aside. Appeal accordingly stands allowed. There shall be no orders as to cost.
| 598 | Union of India v. V. N. Singh 2010 |
Chapter 53
Arun Raj v. Union Of India 2010
Arun Raj v. Union Of India Ors. on 13 May, 2010 Author: H Dattu Bench: V.S. Sirpurkar, Mukundakam Sharma
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JU- RISDICTION
CRIMINAL APPEAL NO.1123 OF 2008
Arun Raj ..........Appellant Ver-
sus
Union of India amp; Ors.
........Respondents JUDGMENT
H.L. Dattu, J.
1) This appeal by special leave is limited to a particular question only, namely, correctness of the conviction of the appellant Arun Raj for an of- fence under Section 302 of Indian Pe- nal Code and the propriety of the sentence passed thereunder by the Presiding O cer of General Court Martial under the Indian Army Act. The short facts are these - The ap- pellant joined the Indian Army in the
year 1983 and 1
in the year 1998 he was work- ing as Ex-Signalman (Lance Nayak) of 787 (Independent) Air Defence Brigade Signal Company. On 22.3.1998, one Mr. S.S.B Rao (PW- 4) was the Section In-Charge of Op- erator Section. At about 1 PM, Mr. Rao returned from lunch and the ap- pellant reported to him that Havil- dar R.C Tiwari (deceased) and Hav- ildar Inderpal (PW-3) abused him by using the word Gandu. On Mr. Rao making an inquiry into the same, they replied in the negative, despite the appellant making repeated as- sertion that they insulted him using the said word. The appellant also brought to the information of Mr. Rao that in the previous night there was a heated discussion between the appellant and the deceased and In- derpal, and the matter was reported to the superior o cer. Paulose (PW- 1), after having his lunch, returned to the barrack from the rank mess and he was relaxing in the cot. At
| 600 | Arun Raj v. Union Of India 2010 |
this point of time, he saw the appel- lant coming towards the door. He was wearing a half T-shirt and lungi. The cot of the deceased was near the door and he was sleeping on it. The appellant took out a knife which was hidden in the lungi and stabbed the deceased on the right side of the chest. On witnessing the incident, PW-1 was shocked and shouted to the appellant as to why he did it. On hearing the shout of PW-1, peo- ple came in and gathered 2
immediately. The appellant was separated by the crowd and the de- ceased was sent to the hospital where he nally succumbed to the injury. Major Prabal Datta (PW-9) testi ed that there was no external injury on the body of the deceased except the stab injury caused by a knife.
2) An FIR was lodged at the Dehu Road Police Station vide CR- 26 of 1998 under Section 302 of In- dian Penal Code. Thereafter, in- vestigation commenced, during the course of which the body of the de- ceased was sent for post mortem and an inquest Panchnama was also pre- pared. On completion of the inves- tigation, the charge- sheet was pre- pared against the appellant/accused and forwarded to the Judicial Mag- istrate 1st Class, Vadgaon Maval. In the meantime, since the appel- lant belonged to the armed forces, court martial proceedings were ini- tiated under the provisions of the Army Act. Charges were framed against the appellant under Section 302 read with Section 69 of the Army Act for committing civil o ence, i.e., knowingly causing the death of the
deceased on 22.3.1998. On the appel- lant pleading not guilty, the General Court Martial proceeded to record the evidence of witnesses. The pros- ecution examined 18 3
witnesses. The General Court Martial after appreciating the facts and the evidence on record, found the appellant guilty of the o ence for which he was charged and af- ter hearing his submission with re- gard to the quantum of sentence, sen- tenced the appellant to undergo 7 years of rigorous imprisonment and he was also dismissed from service for committing the o ence of mur- der punishable under Section 69 of the Army Act read with Section 302 of IPC. However upon revision, the Con rming Authority by an order dated 15.12.1998 held that the sen- tence awarded by the General Court Martial after nding the appellant guilty of murder under Section 69 of the Army Act read with Section 302 of IPC, was not justiciable and fur- ther observed that once the appellant was held guilty under the abovemen- tioned Sections, he could be either sentenced to life imprisonment andne or sentenced to death. Accord- ingly, the General Court Martial by an order dated 15.1.1999, revised the sentence and sentenced the appel- lant to imprisonment for life and dis- missal from service, which was subse- quently con rmed by the Con rming Authority. Being aggrieved by this order, the appellant led a petition before the Chief of Army Sta under Section 164 of the Army Act, which 4
was rejected. The appellant be-
601
ing aggrieved by the same led a writ petition before the Bombay High Court.
3) The learned Counsel for the appellant raised two contentions be- fore the High Court of Judicature at Bombay in the Writ proceedings. Firstly, it was submitted that the charge framed against the appellant was vague, as a result of which, en- tire Court Martial proceedings was vitiated. The second submission was that the intervention of High Court was required as the facts and circum- stances of the case does not justify the punishment of life imprisonment as the o ence revealed from the ma- terial evidence is only punishable un- der Section 304 Part II and not under Section 302 of Indian Penal Code. As regards the rst contention, the High Court has observed that as the ap- pellant was informed of all the alle- gations put forth against him at the time of Court Martial proceedings, the charge framed against the appel- lant cannot be said to be vague. Con- sidering the second contention, the High Court found the testimony of PW-1 Paulose who is the eyewitness and PW-3 Haveldar Indrpal to whom the dying declaration was given by the deceased, is reliable and, hence, observed that there is no 5
doubt about the fact that appel- lant caused the death of the deceased by stabbing him with a knife. There- fore, the submission that there was no intention on the part of the ap- pellant to kill the deceased as only one stab injury was found on de- ceased, was rejected by the Court. The High Court while considering
the decision on which reliance was placed by learned counsel for the ac- cused observed, that there was no sudden quarrel and the murder was not caused on spur of moment and no su cient provocation is found for the o ence committed by appellant to fall under section 304 Part II of In- dian Penal Code. As the o ence was found to be committed with enough time to mediate on the action to commit the murder of deceased, ap- pellant was said to have intention to cause the death of the deceased. Thus, the High Court found the charge under Section 302 of Indian Penal Code proved and the proce- dure under Army Act followed with- out any infringement of principles of natural justice and, accordingly, the Writ Petition was dismissed vide judgment dated 25.8.2005.
4) We now come to the particular question to which this appeal is lim- ited, namely, propriety of the convic- tion and sentence passed 6
on the appellant for the o ence under Section 302 IPC read with Section 69 of the Army Act, 1950. Mr.K.K.Mani, the learned counsel for the appellant contends, that, the death of the deceased was caused due to grave and sudden provoca- tion and, therefore, o ence would fall under Exception I of Section 300 I.P.C. Further, it is contended that the o ence committed by the appel- lant is liable for punishment under Section 304 Part II of the I.P.C., as there is absence of any intention on part of the appellant to cause death. Mr.Mani also cited few decisions of this Court to support his submission
| 602 | Arun Raj v. Union Of India 2010 |
that the single stab injury caused by the appellant to the deceased only amounts to o ence punishable under Section 304 Part II and not under Section 302 of I.P.C. Per contra, the learned counsel for the Union of In- dia submitted that, the ndings of the Court Martial and the punish- ment upheld by the High Court need not be interfered by this Court as the facts and the evidence on record are enough to prove that the o ence committed by the appellant falls un- der Section 302 of I.P.C. It is also contended that the scope of judicial review is for limited purpose and that cannot be used to re-appreciate the evidence recorded in Court Martial proceedings to arrive at a di erent conclusion. 7
5) We now consider the rst con- tention of the learned counsel for the appellant. It is not in dispute that the cause of death of deceased is due to the stabbing by a knife by appel- lant. However, it is argued on be- half of the appellant that the ap- pellant caused the said injury be- cause on 23.03.1998 deceased Havil- dar R.C.Tiwari and Havildar Inder- pal (PW-3) abused the appellant and he was provoked to `punish' the de- ceased. Thus, the stab injury caused to the deceased was a result of such grave and sudden provocation and thus the incident took place on spur of moment. Therefore, the case of the appellant falls under Exception I of Section 300 of I.P.C.
At this state itself, it is relevant to notice Section 300 of I.P.C.: Sec- tion 300. Murder
Except in the cases hereinafter
excepted, culpable homicide is mur- der, if the act by which the death is caused is done with the intention of causing death, or- 2ndly If it is done with the intention of causing such bodily injury as the o ender knows to be likely to cause the death of the person to whom the harm is caused, or- 3rdly If it is done with the intention of causing bodily in- jury to any person and the bodily in- jury intended to be in icted is su - cient in the ordinary course of nature to cause death, or- 4thly If the per- son committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception I-When culpable homicide is not murder- Culpable homicide is not murder if the of- fender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
First-That the provocations not sought or voluntarily provoked by the o ender as an excuse for killing or do- ing harm to any person.
Secondly-That the provocation is not given by anything done in obedi- ence to the law, or by a public servant in the lawful exercise of the powers of such public servant.
603
Thirdly-That the provocations not given by anything done in the lawful exercise of the right of private defence.
Explanation-Whether the provo- cation was grave and sudden enough to prevent the o ence from amount- ing to murder is a question of fact. 6) The aforesaid Section providesve exceptions wherein the culpable homicide would not amount to mur- der. Under Exception I, an injury resulting into death of the person would not be considered as murder when the o ender has lost his self- control due to the grave and sudden provocation. It is also important to mention at this stage that the provi- sion itself makes it clear by the Ex- planation provided, that what would constitute grave and sudden provoca- tion, which would be enough to pre- vent the o ence from amounting to murder, is a question of fact. Provo- cation is an external stimulus which can result into to loss of self-control. Such provocation and the resulting reaction need to be measured from the surrounding circumstances. Here the provocation must be such as will upset not merely a hasty, hot tem- pered and hypersensitive person but also a person with clam nature and ordinary sense. What is sought by the law by creating the exception is that to take into consideration situ- ations wherein a person with normal behavior reacting to the given inci- dence of provocation. Thus, the pro- tection extended by the exception is to the normal person acting normally in the given situation.
7) The scope of the doctrine of
provocation was stated by Viscount Simon in Mancini v. Director of Pub- lic Prosecution, (1942) A.C. 200 at p.206: it is not all provocation that will reduce the crime of murder to manslaughter. Provocation to have that result, must be such as tem- porarily deprive the person provoked of the power of self-control as result of which he commits the unlawful act which caused death. The test to be applicable is that of the e ect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex v. Lesbini, (1914) 3 K.B.1116 so that an unusu- ally excitable or pugnacious individ- ual is not entitled to rely on provo- cation which would not have led or- dinary person to act as he did. In applying the test, it is of particular importance to (a) consider whether a su cient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was e ected, for to re- tort, in the heat of passion induced by provocation, by a simple blow, is very di erent thing from making use of a deadly instrument like a con- cealed dagger. In short, the mode of resentment must bear a reason- able relationship to the provocation if the o ence is to be reduced to manslaughter.
8) It is, therefore, important in the case at hand to consider the rea- sonable relationship of the action of appellant of stabbing the deceased, to the provocation by the deceased in the form of abusing the appellant. At this stage, it would be useful to recall
| 604 | Arun Raj v. Union Of India 2010 |
the relevant chain of events in brief to judge whether there was su cient provocation and the criterion under the provision are satis ed to bring the o ence under the Exception I. As is already stated, on the previous night of the incidence, there was al- tercation between the appellant and deceased, as the deceased had abused the appellant. On 23.3.1998 at about 1.00 PM, the deceased complained to the Higher O cer-Mr.S.S.B.Rao about the said incident. Thereafter, he returned to his barrack and was present there before the happening of the incident. In the testimony, (PW-1) Paulose states that he was also present in the same barrack af- ter he came back from Other Rank Mess at 2.15 PM and was relaxing on his cot which was in the corner of the same barrack. At that time he saw the appellant coming towards the door on which he thought that the appellant was coming for either urinal or to collect his clothes spread out in sun. The appellant who was wearing a half T-shirt and lungi came near the cot of the deceased which was at the door and took out a knife from the lungi and stabbed on the right side of chest of the deceased when he was asleep. PW-1 agreed at the time of examination of wit- ness, that he was shocked to see the appellant stab the deceased and he also shouted at the appellant asking him what was he doing. Thus, PW- 1 was unable to relate the actions of appellant to the abuses by deceased or the altercation which happened the previous night. Further, it is clear from the testimony of the PW- 1 and the evidence collected (ME-1),
that the knife which was completely made of iron and had a sharp edge was hidden at the waistline of the lungi of the appellant. Major Pra- bal Datta, PW-9 was the Regimental Medical O cer at 19 AD Regt. In his cross examination, he has stated, that there was not much time lag between the occurrence of the inci- dent and the deceased being rushed to the hospital. The facts like that there was time lag of 40- 45 minute after appellant had come from the of-ce of Higher O cer after complain- ing and was present with the appel- lant in the same barrack without any conversation between them, that he had got the knife which was sharp enough to have the knowledge that it might cause death of a human being when stabbed, that the knife was hid- den and removed by appellant only when he was about to stab the de- ceased, that the appellant stabbed the deceased on the chest which is a fragile portion of the body and can cause death when stabbed by sharp weapon and also that the eyewitness was unable to link the abusing and the altercation of the deceased and appellant to the action of stabbing, rules out the possibility of the of- fence being committed due to `grave and sudden' provocation. The ap- pellant clearly had time to deliber- ate and plan out the death of Havil- dar R C Tiwari (the deceased). We, therefore, conclude that the rst con- tention of the learned counsel for the appellant has no merit and the ap- pellant cannot get bene t of the Ex- ception I to Section 300 of I.P.C.
9) We now turn to second point
605
urged on behalf of the appellant. It is contended by learned counsel that there was no intention on the part of the appellant to cause the death of the deceased and, hence, Section 304 Part II of the IPC which deals with culpable homicide not amounting to murder, will be attracted. Alterna- tively, it is contended that the appel- lant dealt one single blow on the de- ceased, and hence, intention to cause death cannot be attributed to the ap- pellant and, hence, the act of the ap- pellant will not fall under Section 302 of IPC but under Section 304 Part II. In light of these contentions, it is necessary to look into the wordings of the relevant provision. Section 304 of IPC reads:-
Section 304. Punishment for cul- pable homicide not amounting to murder
Whoever commits culpable homi- cide not amounting to murder shall be punished with imprisonment for life ,or imprisonment of either de- scription for a term which may ex- tend to ten years, and shall also be liable to ne, if the act by which the death is caused is done with the in- tention of causing death, or of caus- ing such bodily injury as is likely to cause death,
Or with imprisonment of either description for a term which may ex- tend to ten years, or with ne, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
10) Essentially the ingredients for
bringing an act under Part II of the Section are:-
(i)act is done with the knowledge that it is likely to cause death,
(ii)there is no intention to cause death, or to cause such bodily injury as is likely to cause death.
11) The rst ingredient is eas- ily solved by referring to the weapon used by the appellant to strike a knife blow to the appellant. The appellant in this instance has used a kitchen knife. A kitchen knife with sharp edges is a dangerous weapon and it is very obvious that the appellant was aware that the use of such a weapon can cause death or serious bodily in- jury that is likely to cause death. As far as the second ingredient is con- cerned, the appellant's learned coun- sel contended that the fact that there was one single blow struck, proves that there was no intention to cause death. In support of the plea, re- liance is placed on the decisions of this court in the case of Bhera v. State of Rajasthan, [(2000) 10 SCC 225], Kunhayippu v. State of Ker- ala, [(2000) 10 SCC 307], Masumsha Hasansha Musalman v. State of Ma- harashtra, [(2000) 3 SCC 557], Gul- jar Hussain v. State of U.P., [1993 Supp (1) SCC 554], K. Ramakrish- nan Unnithan v. State of Kerala, [(1999) 3 SCC 309], Pappu v. State of M.P., [(2006) 7 SCC 391], Muthu v. State by Inspector of Police, Tamil Nadu, [(2007) 12 Scale 795]. A brief perusal of all these cases would re- veal that in all these cases there was a sudden and instantaneous alterca- tion which led to the accused in ict- ing a single blow to the deceased with
| 606 | Arun Raj v. Union Of India 2010 |
a sharp weapon. Hence, there has been conviction under Section 304 Part II as delivering a single blow with a sharp weapon in a suddenght would not point towards inten- tion to cause death. These cases are clearly distinguishable from the case at hand, purely on the basis of facts. In the present case, there has been no sudden altercation which ensued be- tween the appellant and the deceased in the present case. The deceased called the appellant `gandu' following which there was a heated exchange of words between the two, the day before the murder. The next day, however, the appellant concealed a kitchen knife in his lungi and went towards the cot of the deceased and struck the deceased a blow on the right side of the chest, while the de- ceased was sleeping. The fact that the appellant waited till the next day, went on to procure a deadly weapon like a kitchen knife and then pro- ceeded to strike a blow on the chest of the appellant when he was sleep- ing, points unerringly towards due deliberation on the part of the ap- pellant to avenge his humiliation at the hands of the appellant. The na- ture of weapon used and the part of the body where the blow was struck, which was a vital part of the body helps in proving beyond reasonable doubt, the intention of the appellant to cause the death of the deceased. Once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows. This court in the case of State of Ra- jasthan v. Dhool Singh, [(2004) 12 SCC 546] while dismissing a similar contention has stated that, It is the
nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the re- spondent caused the death of the de- ceased with an intention of causing death or not. In the instant case, it is true that the respondent had dealt one single blow with a sword which is a sharp-edged weapon mea- suring about 3 ft. in length on a vital part of body, namely, the neck. This act of the respondent though solitary in number had severed sternoclinoid muscle, external jugular vein, inter- nal jugular vein and common carotid artery completely leading to almost instantaneous death. Any reasonable person with any stretch of imagina- tion can come to the conclusion that such injury on such a vital part of the body with a sharp-edged weapon would cause death. Such an in- jury, in our opinion, not only exhibits the intention of the attacker in caus- ing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than caus- ing the death of the victim. The rea- soning of the High Court as to the in- tention and knowledge of the respon- dent in attacking and causing death of the victim, therefore, is wholly er- roneous and cannot be sustained.
12) In the case of Virsa Singh v. State of Punjab, [AIR 1958 SC 465], this court while referring to intention to cause death laid down:-
27. Once these four elements are established by the prosecution (and, of course, the burden is on the pros- ecution throughout) the o ence is
607
murder under s. 300, 3rdly. It does not matter that there was no inten- tion to cause death. It does not matter that there was no intention even to cause an injury of a kind that is su cient to cause death in the ordinary course of nature (not that there is any real distinction be- tween the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be proved, the rest of the enquiry is purely objective and the only question is whether, as a mat- ter of purely objective inference, the injury is su cient in the ordinary course of nature to cause death. No one has a licence to run around in-icting injuries that are su cient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they in ict in- juries of that kind, they must face the consequences; and they can only es- cape if it can be shown, or reasonably deduced that the injury was acciden- tal or otherwise unintentional. This court further observed:-
33. It is true that in a given case the enquiry may be linked up with the seriousness of the injury,. For ex- ample, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a super cial; scratch and that by accident this victim stumbled and fell on the sword or spear that was used, then of course the o ence is not murder. But that is not be- cause the prisoner did not intend the injury that he intended to in ict to
be as serious as it turned out to be 19
but because he did not intend to in ict the injury in question at all. His intention in such a case would be to in ict a totally di erent injury. The di erence is not one of law but one of fact; and whether the conclu- sion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable infer- ences of fact in the absence of direct testimony. It is not one for guess- work and fanciful conjecture.
13) In Anil v. State of Haryana, [(2007) 10 SCC 274], while referring to Virsa Singh (supra) this court laid down:- 19. In Thangaiya v. State of T.N., relying upon a celebrated deci- sion of this Court in Virsa Singh v. State of Punjab 1958 CriLJ 818 , the Division Bench observed:
17. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of Clause thirdly is now ingrained in our legal system and has become part of the rule of law. Under Clause thirdly of Section 300 IPC. culpable homicide is murder, if both the following con- ditions are satis ed: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the in- jury intended to be in icted is su - cient in the ordinary course of nature to cause death. It must be proved that there was an intention to in ict that particular bodily injury which, in the ordinary course of nature, was su cient to, cause death viz. that
| 608 | Arun Raj v. Union Of India 2010 |
the injury found to be present was the injury that was intended to be in icted.
18. Thus, according to the rule laid down in Virsa Singh case even if the intention of the appellant was limited to the in iction of a bodily in- jury su cient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the o ence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.
20
14)In the aforesaid decision, this Court held that there is no xed rule that whenever a single blow is in-icted Section 302 would not be at- tracted.
15)It is clear from the above line of cases, that it is necessary to proverst that there was an intention of causing bodily injury; and that the injury intended to be in icted is su - cient in the ordinary course of nature to cause death. From the evidence on record, it is very clear that the appel- lant intended to cause death. In light of this nding, the evidence on record makes it clear that Section 304 Part II of the IPC will not be attracted.
Further PW-1, in his cross- exami- nation asserts that the deceased held his hand out after he was stabbed in the chest. It is very likely that this action on the part of the deceased prevented the appellant from stab- bing him multiple number of times. The argument might deserve some merit in case there is a sudden al- tercation which ensues in the heat of the moment and there is no deliber- ate planning. In the present case, as stated above there was due delibera- tion on the part of the appellant and he assaulted the deceased a day af- ter he misbehaved with him. Hence, the contention of the learned counsel that the appellant had no intention to cause death of the deceased has no merit and, accordingly, it is rejected.
16) We, accordingly, hold that the conviction of the appellant for the o ence under Section 302 of In- dian Penal Code, is not bad in law. In our opinion, the appeal has no merit and, accordingly, it is dis- missed.
J. [Dr. MUKUNDAKAM
SHARMA] J. [H.L. DATTU]
New Delhi,
May 13, 2010.
Chapter 54
Charanjit Lamba v. Commndng.O cer,Southern Command 2010
| Charanjit Lamba | v. | Comm- | No.489 of 1997 led by the appellant | |||
| ndng.O cer,Southern | Command | has been dismissed and the order of | ||||
| Ors. on 6 July, 2010 | dismissal from service on proved mis- | |||||
| Author: T Thakur | conduct a rmed. The factual matrix | |||||
| giving rise to the disciplinary pro- | ||||||
| Bench: Dalveer Bhandari, T.S. | ||||||
| ceedings against the appellant and | ||||||
| Thakur | his eventual dismissal from service | |||||
| IN THE SUPREME COURT OF | ||||||
| has been set out by the High Court | ||||||
| INDIA | in the order under appeal. We need | |||||
| CRIMINAL | APPELLATE JU- | not, therefore, re-count the same over | ||||
| RISDICITION | again. Su ce it to say that the | |||||
| CRIMINAL | APPEAL | NO.1027 | appellant who at the relevant time | |||
| OF 2002 | was serving as a Major in the Indian | |||||
| Army was consequent upon a nd- | ||||||
| Charanjit | Lamba | ...Appellant | ||||
| ing recorded against him in a Court | ||||||
| Versus | of Inquiry brought up for trial before | |||||
| Commanding O cer, Southern | a General Court Martial (GCM for | |||||
| ...Respondents Command amp; Ors. | short) on the following two distinct | |||||
| JUDGMENT | charges: FIRST CHARGE ARMY | |||||
| T.S. THAKUR, J. | ACT SECTION 52(f). | |||||
| 1. | This | appeal | by | special | SUCH AN OFFENCE AS IS | |
| MENTIONED IN CLAUSE (f) OF | ||||||
| leave arises out of an order dated | ||||||
| 15th September, 1998 passed by the | SECTION 52 OF THE ARMY | |||||
| High Court of judicature at Bom- | ACT, WITH INTENT TO CAUSE | |||||
| bay whereby Criminal Writ Petition | WRONGFUL LOSS TO A PERSON | |||||
610Charanjit Lamba v. Commndng.O cer,Southern Command 2010
| In that he, at eld on 30th Jul | by the appellant in his defence was | |||||||
| 92, with intent to cause wrongful | also found by the GCM to be un- | |||||||
| gain to himself, improperly claimed | reliable on account of material con- | |||||||
| Rs.16,589.30 (Rs. Sixteen thousand | tradictions in the deposition of the | |||||||
| ve hundred eighty nine and paise | defence | witnesses. | The GCM | on | ||||
| thirty only) from CDA (Q) Pune on | proof of the said charge sentenced | |||||||
| account of moving his household lug- | him to forfeiture of ten years past | |||||||
| gage and car to Chandigarh, well | service for purposes of pension. | In | ||||||
| knowing that he was legally not en- | so far as the second charge, viz. non- | |||||||
| titled to the same. | payment of electricity bill was con- | |||||||
| SECOND | CHARGE, | ARMY | cerned, the GCM declared the appel- | |||||
| ACT SECTION 45 | lant not guilty. In its opinion the ap- | |||||||
| pellant had never refused to pay the | ||||||||
| BEING AN OFFICER BEHAV- | ||||||||
| electricity bill which was at any rate | ||||||||
| ING IN A MANNER | a matter between him and the Maha- | |||||||
| UNBECOMING HIS POSITION | ||||||||
| rashtra State Electricity Board. The | ||||||||
| AND THE | GCM took the view that the default | |||||||
| CHARACTER EXPECTED OF | of the petitioner could not be termed | |||||||
| HIM | as conduct unbecoming of an o cial | |||||||
| In that he, | at Pune, | between | subject to the Army Act to call for | |||||
| 03 Sep 92 and Jun 93, improperly | any penal action. | |||||||
| failed to pay | the nal | electricity | 3. | Aggrieved | by the ndings | |||
| bill dated 03 Sep 92 amounting to | and the sentence awarded to him by | |||||||
| Rs.8132.35 (Rs. eight thousand one | the GCM the petitioner led an ap- | |||||||
| hundred thirty two and paise thirty | peal before the General O cer Com- | |||||||
| ve only) to Maharashtra State Elec- | manding, Maharashtra and Gujarat | |||||||
| tricity Board (MSEB) in respect of H | Area (hereinafter referred to as the | |||||||
| No.12-B Kohun Road, Pune-1 which | `GOC M amp; G Area') who hap- | |||||||
| was allotted to him. | pened to be the con rming author- | |||||||
| 2. Evidence adduced before the | ity also. | The GOC M amp; | G | |||||
| GCM eventually led to the appel- | Area, however, took the view that | |||||||
| lant being held guilty for improperly | the sentence awarded to the appel- | |||||||
| claiming Rs.16,589.30 on account of | lant on the rst charge was lenient | |||||||
| transfer of his household luggage and | inasmuch as the o ence committed | |||||||
| car to Chandigarh. The GCM found | by the appellant was serious and in- | |||||||
| that the family of the appellant had | volved moral turpitude. It also noted | |||||||
| continued to occupy government ac- | that the appellant had past convic- | |||||||
| commodation at Pune even after his | tions to his credit which ought to be | |||||||
| posting to the eld area and that the | kept in view. The nding recorded | |||||||
| agency who is alleged to have trans- | by the GCM in regard to the sec- | |||||||
| ported the luggage and the car of | ond charge framed against the appel- | |||||||
| the appellant did not exist at the | lant was also found to be untenable | |||||||
| given address. | The evidence given | by GOC M amp; G Area as accord- | ||||||
611
ing to him the conduct of the appel- lant fell within the ambit of Section 4E of the Army Act which made his behaviour unbecoming of an o cer. The GOC M amp; G Area accord- ingly remanded the matter back to the GCM for re-consideration on the question of sentence to be awarded to the appellant on the rst charge and whether the appellant could be held guilty on the second charge. The or- der made it clear that the GOC M amp; G Area did not intend to inter- fere with the discretion vested in the GCM which was free to decide the matter in the manner it liked.
4.The GCM accordingly as- sembled again to consider the mat- ter and while sticking to the rea- sons given by it in regard to the rst charge found the second charge also to have been proved. The GCM on that basis revoked the earlier sen- tence and sentenced the appellant to dismissal from service which order was after con rmation by the compe- tent authority assailed by the appel- lant before the High Court at Bom- bay in Criminal Writ Petition No.489 of 1997 as already noticed earlier.
5.Before the High Court sev- eral contentions appear to have been urged on behalf of the appellant which were examined and repelled by the High Court while dismissing the writ petition in terms of the order im- pugned in this appeal. The correct- ness of the view taken by the High Court on the grounds urged before it has not been assailed before us ex- cept in so far as the High Court has held that the punishment of dismissal imposed upon the appellant was in
no way disproportionate to the grav- ity of the o ence committed by him.
6.Mr. P.S. Patwalia, learned senior counsel appearing for the ap- pellant argued that the order of dis- missal of the appellant from service was in the facts and circumstances of the case disproportionate to the gravity of the charges framed against the appellant. He relied upon the decisions of this Court to which we shall presently refer to submit that judicial review of the order of dis- missal would justify intervention by
aWrit Court in cases where pun- ishment was disproportionate to the nature of misconduct proved against the delinquent. The present was ac- cording to him one such a case that called for the Court's intervention to either reduce the punishment or to direct the same to be reduced by the competent authority.
7.In Coimbatore District Cen- tral Coop. Bank v. Employees Assn. (2007) 4 SCC 669 this Court declared that the doctrine of proportionality has not only arrived in our legal sys- tem but has come to stay. With the rapid growth of the administrative law and the need to control possible abuse of discretionary powers by var- ious administrative authorities, cer- tain principles have been evolved by reference to which the action of such authorities can be judged. If any ac- tion taken by an authority is contrary to law, improper, irrational or oth- erwise unreasonable, a court compe- tent to do so can interfere with the same while exercising its power of ju- dicial review.
8.This Court referred with ap-
612Charanjit Lamba v. Commndng.O cer,Southern Command 2010
proval to the decision of the House of Lords in Council of Civil Service Union v. Minister for Civil Service (1985 AC 374) where Lord Diplock summed up the grounds on which ad- ministrative action was open to judi- cial review by a Writ Court. Lord Diplock's oft-quoted passage dealing with the scope of judicial review of an administrative action may be gain- fully extracted at this stage:
Judicial review has I think devel- oped to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the ground on which administrative action is sub- ject to control by judicial review. The rst ground I would call `illegal- ity', the second `irrationality' and the third `procedural impropriety'. That is not to say that further develop- ment on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of `proportionality'.
9.The doctrine of proportional- ity which Lord Diplock saw as a fu- ture possibility is now a well recog- nized ground on which a Writ Court can interfere with the order of pun- ishment imposed upon an employee if the same is so outrageously dispro- portionate to the nature of miscon- duct that it shocks conscience of the Court. We may at this stage brie y refer to the decisions of this Court which have over the years applied the doctrine of proportionality to speci c fact situations.
10.In Bhagat Ram v. State of
Himachal Pradesh (1983) 2 SCC 442 this Court held that if the penalty imposed is disproportionate to the gravity of the misconduct, it would be violative of Article 14 of the Con- stitution.
11.In Ranjit Thakur v. Union of India amp; Ors. (1987) 4 SCC 611, this Court was dealing with a case where the petitioner had made
arepresentation about the maltreat- ment given to him directly to the higher o cers. He was sentenced to rigorous imprisonment for one year for that o ence. While serving the sentence imposed upon him he de- clined to eat food. The summary court martial assembled the next day sentenced him to undergo imprison- ment for one more year and dismissal from service. This Court held that the punishment imposed upon the delinquent was totally disproportion- ate to the gravity of the o ence com- mitted by him. So also in Ex-Naik Sardar Singh v. Union of India amp; Ors. (1991) 3 SCC 213 instead of one bottle of brandy that was autho- rized the delinquent was found carry- ing four bottles of brandy while going home on leave. He was sentenced to three months rigorous imprisonment and dismissal from service which was found by this Court to be dispropor- tionate to the gravity of the o ence proved against him.
12.The decision of this Court in Hind Construction amp; Engineering Co. Ltd. v. Workmen (AIR 1965 SC 917) dealt with a situation where some workers had remained absent from duty treating a particular day as a holiday. They were for that mis-
613
conduct dismissed from service. This Court held that the absence of the workmen could have been treated as `leave without pay' and they could also be warned and not ned. Re- versing the order of punishment this Court observed:
It is impossible to think that any other reasonable employer would have imposed the extreme punish- ment of dismissal on its entire per- manent sta in this manner.
13.Reference may also be made to Management of the Federation of Indian Chambers of Commerce and Industry v. Workman, Shri R.K. Mittal (1972) 1 SC 40) where the em- ployer had issued a legal notice to the federation and to the international chamber of Commerce which brought discredit to the petitioner-employer.
Adomestic inquiry was held in which he was found guilty and his services terminated. This Court held that the punishment was disproportionate to the misconduct alleged observing: The Federation had made a moun- tain out of a mole hill and made a trivial matter into one involving loss of its prestige and reputation.
14.We may refer to the deci- sion of this Court in M.P. Gangad- haran amp; Anr. v. State of Kerala amp; Ors. (2006) 6 SCC 162, where this Court declared that the question of reasonableness and fairness on the part of the statutory shall have to be considered in the context of the factual matrix obtaining in each case and that it cannot be put in a strait- jacket formula. The following pas- sage is in this regard apposite:
34. The constitutional require- ment for judging the question of rea- sonableness and fairness on the part of the statutory authority must be considered having regard to the fac- tual matrix obtaining in each case. It cannot be put in a straitjacket for- mula. It must be considered keep- ing in view the doctrine of exibil- ity. Before an action is struck down, the court must be satis ed that a case has been made out for exer- cise of power of judicial review. We are not unmindful of the develop- ment of the law that from the doc- trine of Wednesbury unreasonable- ness, the court is leaning towards the doctrine of proportionality........
15. That the punishment im- posed upon a delinquent should com- mensurate to the nature and gener- ally of the misconduct is not only a requirement of fairness, objectiv- ity, and non-discriminatory treat- ment which even those form qual- ity of a misdemeanour are entitled to claim but the same is recognized as being a part of Article 14 of the Constitution. It is also evident from the long time of decisions referred to above that the courts in India have recognized the doctrine of propor- tionality as one of the ground for ju- dicial review. Having said that we need to remember that the quan- tum of punishment in disciplinary matters is something that rests pri- marily with the disciplinary author- ity. The jurisdiction of a Writ Court or the Administrative Tribunal for that matter is limited to nding out whether the punishment is so outrageously disproportionate as to
614Charanjit Lamba v. Commndng.O cer,Southern Command 2010
be suggestive of lack of good faith. What is clear is that while judicially reviewing an order of punishment im- posed upon a delinquent employee the Writ Court would not assume the role of an appellate authority. It would not impose a lesser pun- ishment merely because it considers the same to be more reasonable than what the disciplinary authority has imposed. It is only in cases where the punishment is so disproportionate to the gravity of charge that no reason- able person placed in the position of the disciplinary authority could have imposed such a punishment that a Writ Court may step in to interfere with the same.
16. The question then is whether the present is indeed one such case where the High Court could and ought to have interfered with the sen- tence imposed upon the appellant on the doctrine of proportionality. Our answer is in the negative. The appel- lant was holding the rank of a Ma- jor in the Indian Army at the time he committed the misconduct alleged and proved against him. As an o cer of disciplined force like the Army he was expected to maintain the highest standard of honesty and conduct and forebear from doing anything that could be termed as unbecoming of anyone holding that rank and o ce. Making a false claim for payment of transport charges of household lug- gage and car to Chandigarh was a serious matter bordering on moral turpitude. Breach of the rule requir- ing him to clear his electricity dues upon his transfer from the place of his posting was also not credit wor-
thy for an o cer. The competent au- thority was therefore justi ed in tak- ing the view that the nature of the misconduct proved against the ap- pellant called for a suitable punish- ment. Inasmuch as the punishment chosen was dismissal from service, the competent authority, did not in our opinion, take an outrageously ab- surd view of the matter. We need to remember that the higher the pub- lic o ce held by a person the greater is the demand for rectitude on his part. An o cer holding the rank of Major has to lead by example not only in the matter of his readiness to make the supreme sacri ce required of him in war or internal strife but even in adherence to the principles of honesty, loyalty and commitment. An o cer cannot inspire those un- der his command to maintain the val- ues of rectitude and to remain com- mitted to duty if he himself is found lacking in that quality. Su ce it to say that any act on the part of an o cer holding a commission in the Indian Army which is subversive of army discipline or high traditions of the Army renders such person un-t to stay in the service of the na- tion's Army especially when the mis- conduct has compromised the values of patriotism, honesty and sel ess- ness which values are too precious to be scari ed on the altar of petty monetary gains, obtained by dubious means.
17. In the result this appeal fails and is hereby dismissed.
J. (DALVEER BHANDARI)
J. (T.S. THAKUR)
New Delhi July 6, 2010
Chapter 55
J.S. Sekhon v. Union Of India 2010
J.S. Sekhon v. Union Of India Ors. on 10 August, 2010
Author: . M Sharma
Bench: Mukundakam Sharma,
Anil R. Dave
CIVIL APPELLATE JURIS- DICTION
CIVIL APPEAL NO. 6274 OF 2003
J.S. SEKHON ...Appellant Ver-
sus
UNION OF INDIA ...Respon- dent JUDGMENT
Dr. Mukundakam Sharma, J.
1. This Civil Appeal is di- rected against the judgment of the High Court of Jammu amp; Kash- mir dated 2.4.2002. By the afore- said order, the Division Bench of the High Court upheld the order of the learned Single Judge of the High Court of Jammu amp; Kashmir, dis- missing the Writ Petition and up- holding the order of conviction of the appellant by the General Court Mar- tial (GCM) for defrauding the Army
and sentence of one year of rigorous imprisonment and also of cashiering him from service.
2.The appellant was a Com- missioned O cer in the Indian Army working at the relevant time at Leh. He was working as a Garrison En- gineer, 865 EWS, where he invited o ers from private parties to supply the garrison with Diesel Generator (DG) sets and to make other repairs and replacement.
3.On 29.11.1994 he entered into an agreement with M/s Surjit Singh Sokhi to repair two DG Sets at FRL Powerhouse at Leh for Rs.
2.29lakh and to repair LT cables at Nimmuy area Leh for Rs. 2.49 lakhs. On 30.11.1994 he entered into an agreement with M/s Mohd Sul- tan and Bros. to replace LT ca- bles and providing an ACR conduc- tor and to replace parts of two DG Sets for Rs. 2.48 lakhs. Author- ities noticed irregularities in these purchases and on 6.12.1994 investi- gated the contract agreements. A
| 616 | J.S. Sekhon v. Union Of India 2010 |
vigilance check was performed by the Commander Works Engineers (CWE) on 9.12.1994. CWE then asked the appellant for his comments on the report which were submitted on 6.2.1995. Discrepancies detected in comparing the report and the com- ments of the appellant prompted the Technical Board of O cers to issue a report on 9.4.1995, which led a court of enquiry being convened on 20.9.1995 and then to a GCM be- ing convened on 9.3.1998. The appel- lant was then served a charge sheet on 9.3.1998 that was then withdrawn due to errors and thereafter he was re-served with a fresh charge sheet on 11.3.1998.
4.Seven charges were framed against the appellant two of which could not be proved. All the charges revolved around the allegation of his defrauding the Army for purchasing services to replace and repair items at exorbitant rates which are much higher than what is permissible un- der the standard scheduled rates.
5.On 14.3.1998 the GCM com- menced its proceedings and provided the appellant the right to raise objec- tions of being tried by any o cer sit- ting on the court in accordance with Section 130 of the Army Act, 1950 read with Rule-44 of the Army Rules, 1954. He raised no objection at the time. However, at a subsequent stage of the trial he objected to being tried by the Presiding O cer of the Court. The objection was then considered and rejected. The court convicted the appellant and sentenced him to one year rigorous imprisonment be- sides cashiering.
6.The appellant then challenged this conviction and sentence based on several issues. The Single Judge of the High Court of Jammu amp; Kashmir at Srinagar dismissed the Writ Petition holding the same to be without merit. The Division Bench of the High Court in the writ ap- peal led before it similarly held that there was no procedural irregularity or illegality in the GCM proceedings. That appeal was also dismissed.
7.Being aggrieved by both the orders passed by the learned Single Judge and the Division Bench of the High Court, a Special Leave Peti- tion was led by the appellant. Af- ter leave was granted, the appeal was placed for nal hearing in which we heard the learned counsel appearing for the parties.
8.The learned counsel appear- ing for the appellant mainly raised two issues before us during the course
of hearing. The rst submission of the learned counsel appearing for the appellant was that the conven- ing of the General Court Martial on 14.3.1998 was barred under the pro- visions of Section 122 of the Army Act. The second submission of the learned counsel for the appellant was that the convening O cer of the General Court Martial in the case of the appellant being the Commanding O cer of the appellant, there is vio- lation of the provision of paragraph 449(b) of the Army Regulation.
9. The learned counsel appear- ing for the respondent, however, re- futed the aforesaid submissions while contending inter alia that neither the convening of the General Court Mar-
617
tial was barred by time nor that the convening o cer of the Court Mar- tial was the commanding o cer of the appellant. According to him therefore not only there was no vi- olation of Section 122 of the Army Act, but there was also no contraven- tion of paragraph 449(b) of the Army Regulation.
10. In the light of the aforesaid submissions of the counsel appear- ing for the parties, we have perused the relevant provisions of the Army Act, 1950 (for short the Act) and the Army Regulations as also various documents and the decisions relied upon and on being fully acquainted thereof, we propose to dispose of the present appeal by giving our reasons thereof. But before doing that it would be appropriate to extract the relevant provisions of Section 122 of the Army Act, and Paragraph 449(b) of the Army Regulations.
122. Period of limitation for trial.-(1) Except as provided by sub- section (2), no trial by court mar- tial of any person subject to this Act for any o ence shall be com- menced after the expiration of a pe- riod of three years[and such period shall commence,- (a) on the date of the o ence; or
(b)where the commission of the o ence was not known to the person aggrieved by the o ence or to the au- thority competent to initiate action, the rst day on which such o ence comes to the knowledge of such per- son or authority, whichever is earlier; or
(c)where it is not known by
whom the o ence was committed, the rst day on which the identity of the o ender is known to the person aggrieved by the o ence or to the au- thority competent to initiate action, whichever is earlier.]
449. Action by Superior O cer
....
(b) When the superior o ce has been the CO of the accused at any time between the date on which cog- nizance of o ence was taken against the accused and the date on which the case is taken up for disposal, or an o cer who has investigated the case, he cannot exercise the powers detailed in sub-para (a) (ii) to (v) in- clusive
11.Section 122 of the Army Act provides the period of limitation for trial. In the said section, it is pro- vided that no trial by court martial of any person shall be commenced af- ter the expiration of a period of three years (a) from the date of the o ence or, (b) where the commission of the o ence was not known to the person aggrieved by the o ence or to the au- thority competent to initiate action, the rst day on which such o ence comes to the knowledge of such per- son or authority, whichever is earlier or (c) where it is not known by whom the o ence was committed, the rst day on which the identity of the of- fender is known to the person ag- grieved by the o ence or by the au- thority competent to initiate action, whichever is earlier.
12.On going through the records, we nd that it is an admit- ted position between the parties, that
| 618 | J.S. Sekhon v. Union Of India 2010 |
what is attracted in the present case is clause (b) of sub-Section (1) of Sec- tion 122. The date of limitation for holding a trial by court martial is a period of three years from any of the three dates as stated above.
13.Clause (b) is attracted and in that case the limitation of three years period would commence from the date of the knowledge of the com- mission of such o ence by the person aggrieved by the o ence or by the au- thority competent to initiate action.
14.Learned Counsel appearing for the appellant submitted before us that of the two expressions i.e. per- son aggrieved by the o ence or the authority competent to initiate ac- tion, what is attracted in the present case is not the knowledge of the au- thority competent to initiate action but the other expression appearing in the section namely the date of knowl- edge of the person aggrieved of the commission of the o ence.
15.The facts disclosed before us reveal that on 6.12.1994, the higher authority noticed some irregularity committed by the appellant and ac- cordingly made some observations on the contract agreement whereupon on 9.12.1994, Commander Works En- gineer directed a Vigilance Check in terms of which a Vigilance Check was conducted and a report to that e ect was submitted on 19.12.1994.
16.It appears that on receipt of the aforesaid Vigilance Check Re- port, Commanding Works Engineer forwarded the report to the appellant and asked for his comments which were submitted by the appellant on
6.2.1995. As there were some vari- ations in the vigilance report and the comments furnished by the ap- pellant, a Technical Board of O cers was constituted on 29.3.1995 and the said technical board of o cers sub- mitted its report on 9.4.1995. There- after on 20.4.1995, on examination of the report, a letter was written by the Commanding Works Engineer to HQ 3 Infantry Division for constitut- ing a court of enquiry. On 24.4.1995, a court of enquiry was convened and thereafter the court of enquiry sub- mitted its report on 11.10.1996.
17.According to the counsel appearing for the appellant, when the vigilance check report was sub- mitted, Commander Works Engineer who is the person aggrieved came to know that there was a commission of an o ence and therefore period of limitation as envisaged under Sec- tion 122 of the Act would commence from that date and when limitation is computed from the said date, con- vening of the general court martial on 9.3.1998 was barred by time, as it was beyond the period of three years as contemplated under Section 122 of the Army Act.
18.The aforesaid factual position as stated above would indicate that although a vigilance check report was submitted on 19.12.1994, the Com- manding Works Engineer sought for comments from the appellant and on receipt of the comments of the appel- lant some variations were found while comparing the vigilance report and the comments of the appellant and therefore, a Technical Board of Of-cers was required to be constituted
619
which was accordingly constituted on 29.3.1995. When the technical board of o cers so constituted submitted its report on 9.4.1995, it could be said that the fact of commission of o ence by the appellant came to benally recorded, but even thereafter a Court of Enquiry was convened so as to make an enquiry with regard to the allegation against the appellant. The Report of the court of enquirynally proved and established that the appellant has committed an of- fence alleged against him and there- fore the knowledge, if any, regarding the commission of the o ence by the authority competent to convene the general court martial could be said to be on 11.10.1996, when the afore- said Court of Enquiry Report was submitted or at the most it could be said that such knowledge was derived by the authority competent to initi- ate action of convening the general court martial on submission of the re- port by the technical board of o cers which was dated 9.4.1995. If the pe- riod of limitation is computed either from 9.4.1995 or 11.10.1996, the con- vening of the trial by general court martial on 9.3.1998 must be held to be within the period of limitation as prescribed under Section 122 of the Act.
19. In our considered opinion, the expression `person aggrieved by the o ence' is irrelevant in the facts and circumstances of the present case and what is relevant is the `knowledge of the authority competent to initiate action'. The aforesaid acts were com- mitted against the Government and not a natural person. In the facts of
the present case no single person can be said to be aggrieved person indi- vidually due to the act of defraud- ing the Army. What is applicable to the facts of the case is the expression when it comes to the knowledge of the competent authority to initiate action. In coming to the aforesaid conclusion, we are forti ed by a re- cent decision of this Court in Union of India and Others v. V.N. Singh re- ported in (2010) 5 SCC 579 wherein it was held thus:-
32....It is only the natural per- sons who can be hurt, angry, upset or wronged or maltreated, etc. If a gov- ernment organisation is treated to be an aggrieved person then the second part of Section 122(1)(b) i.e.when it comes to the knowledge of the com- petent authority to initiate action will never come into play as the com- mission of o ence will always be in the knowledge of the authority who is a part of the organisation and who may not be the authority competent to initiate the action. A meaning- ful reading of the provisions of Sec- tion 122(1)(b) makes it absolutely clear that in the case of a govern- ment organisation, it will be the date of knowledge of the authority com- petent to initiate the action, which will determine the question of limi- tation....
20. The action contemplated by Section 122 must be the action it seeks to limit - namely a trial. The power of investigation and trial or the power to convene a court of in- quiry is vested in o cers in the chain of command and not with sta o - cers. It is therefore clear from Sec-
| 620 | J.S. Sekhon v. Union Of India 2010 |
tion 122(1)(b) that the expression person aggrieved; necessarily means a natural person and what would be relevant is the knowledge of the com- petent authority to convene a gen- eral court martial against the ap- pellant who in the present case is the general o cer commanding. His date of knowledge of the commission of o ence becomes material as he is the competent authority to convene a general court martial against the appellant.
21.Since, the authority compe- tent to initiate action has derived his knowledge about the commis- sion of the o ence on submission of the report of the Court of Enquiry 11.10.1996 or at the most on sub- mission of the report by the techni- cal board of o cers on 9.4.1995 and the date of the convening of the trial by general court martial is 9.3.1998, the trial is not barred by limitation as sought to be submitted by the counsel appearing for the appellant, and therefore, the submission of the counsel appearing for the appellant fails and is rejected.
22.Having held thus so far as the rst issue is concerned, let us now turn to the second issue, which was urged before us. We have very care- fully analysed the scope and appli- cability of paragraph 449(b) of the Army Regulation.
23.On consideration of the records placed before us, we nd that in the present case, the Gen- eral Court Martial, which was held against the appellant was convened by the general o cer commanding who was of the rank of a Major Gen- eral. The appellant was a lieutenant
Col., whereas the commanding o cer was Col. R.K. Rana. The General of-cer commanding in the case of the appellant was a Major General who is much higher in rank than the com- manding o cer and therefore, there is no violation of paragraph 449(b) of the Army Regulation.
24.Learned counsel appearing for the appellant submitted before us that here the convening o cer of the General Court Martial was his com- manding o cer and therefore there was violation of regulation 449(b). The said allegation is found to be factually incorrect. Even otherwise, the appellant was attached to 603 ASC Battalion, for the purpose of in- vestigation and progress of the dis- ciplinary case, and therefore, com- manding o cer on 603 ASC Battal- ion became his commanding o cer. It could not be disputed by the coun- sel appearing for the appellant that the said commanding o cer is the one who has led the charge sheet against the appellant and the appel- lant has not objected that the com- manding o cer 603 ASC Battalion was the commanding o cer. That being the position, there is no viola- tion at all of Paragraph 449(b) of the Army Regulation.
25.Therefore, all the issues urged by the appellant are found to be without any merit. Consequently, the appeal has no merit, and is dis- missed, but we leave the parties to bear their own costs.
J. [Dr. Mukundakam Sharma]
J. [Anil R. Dave]
New Delhi,
August 10, 2010
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Chapter 61
O'Callahan v. Parker, 395 U.S. 258, 265 (1969)
O'CALLAHAN V. PARKER, 395 U. S. 258 (1969)
Case Preview
Full Text of Case U.S. Supreme Court O'Callahan v. Parker, 395 U.S. 258 (1969)
O'Callahan v. Parker
No. 646
Argued January 23, 1969
Decided June 2, 1969
395 U.S. 258
CERTIORARI TO THE UNITED STATES COURT OF AP- PEALS
FOR THE THIRD CIRCUIT
Syllabus
Petitioner, a United States Army sergeant, while on an evening pass from his army post in Hawaii and in civilian attire, broke into a ho- tel room, assaulted a girl, and at- tempted rape. Following his appre- hension, city police, on learning that petitioner was in the Armed Forces, delivered him to the military police.
After interrogation, petitioner con- fessed. He was charged with at- tempted rape, housebreaking, and assault with attempt to rape, in vi- olation of Articles 80, 130, and 134 of the Uniform Code of Military Jus- tice, tried by a court martial, con- victed on all counts, and sentenced. His conviction was a rmed by the Army Board of Review, and there- after by the United States Court of Military Appeals. Petitioner laterled a petition for a writ of habeas corpus in the District Court claim- ing that the court martial was with- out jurisdiction to try him for non- military o enses committed o -post while on an evening pass. The Dis- trict Court denied relief and the Court of Appeals a rmed.
Held: A crime, to be under mil- itary jurisdiction, must be service- connected, and since petitioner's crimes were not, he could not be tried by court martial, but was entitled to a civilian trial with the bene ts of an indictment by a grand jury and trial
| 632 | O'Callahan v. Parker, 395 U.S. 258, 265 (1969) |
by jury. Pp. 395 U. S. 261-274.
(a)Art. I, 8, cl. 14, of the Constitution recognizes that military discipline requires military courts in which not all the procedural safe- guards of Art. III trials need ap- ply, and the Fifth Amendment ex- empts \cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger" from the requirement of prosecution by indictment and the right to trial by jury. See Ex parte Quirin, 317 U. S. 1, 317 U. S. 40. Pp.
395U. S. 261-262.
(b)If the case does not arise \in the land or naval forces," the accused gets (1) the bene t of an indictment by a grand jury and (2) a trial by jury before a civilian court as guar- anteed by the Sixth Amendment and Art. III, 2. P. 395 U. S. 262.
(c)A court martial (which is tried in accordance with military tradi- tions and procedures by a panel of of-cers empowered to act by two-thirds vote presided over by a military law o cer) is not
Page 395 U. S. 259
an independent instrument of justice, but a specialized part of an overall system by which military dis- cipline is preserved. Pp. 395 U. S. 263-265.
(d)A civilian trial is conducive to the protection of individual rights, while a military trial is marked by re- tributive justice. P. 395 U. S. 266.
(e)The fact that petitioner, at the time of his o ense and of his court martial, was a member of the Armed Forces does not necessarily
mean that he was triable by court martial. Pp. 395 U. S. 266-267.
(f)In England before the Ameri- can Revolution, and in this country, military trials of soldiers for civilian o enses have been viewed with sus- picion. Pp. 395 U. S. 268-271.
(g)To be under military juris- diction, a crime must be service- connected, lest all members of the armed services be deprived of the bene ts of grand jury indictment and jury trial. Pp. 395 U. S. 272-273.
(h)There was not even a re- mote connection between petitioner's crimes and his military duties, and the o enses were peacetime o enses, committed in American territory which did not involve military au- thority, security, or property. Pp.
395U. S. 273-274.
390 F.2d 360, reversed.
MR JUSTICE DOUGLAS deliv- ered the opinion of the Court.
Petitioner, then a sergeant in the United States Army, was stationed in July, 1956, at Fort Shafter, Oahu, in the Territory of Hawaii. On the night of July 20, while on an evening pass, petitioner and a friend left the post dressed in civilian clothes and went into Honolulu. After a few beers in the bar of a hotel, petitioner en- tered the residential part of the ho- tel, where he broke into the room of a young girl and assaulted and at- tempted to rape her. While eeing from her room onot Waikiki Beach, he was apprehended by a hotel se- curity o cer, who delivered him to the Honolulu city police for question- ing. After determining that he was
633
a member of the Armed Forces, the city police delivered petitioner to the military police. After extensive inter- rogation, petitioner confessed, and was placed in military con nement.
Petitioner was charged with at- tempted rape, housebreaking,and as- sault with intent to rape, in violation of Articles 80, 130, and 134 of the Uniform Code of Military Justice. [Footnote 1] He was tried by court martial, convicted on all counts, and given a sentence of 10 years' im- prisonment at hard labor, forfeiture of all pay and allowances, and dis- honorable discharge. His conviction was a rmed by the Army Board of Review and, subsequently, by the United States Court of Military Ap- peals.
Under con nement at the United States Penitentiary at Lewisburg, Pennsylvania, petitioner led a pe- tition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania, alleging, inter alia, that the court martial was without jurisdiction to try him for nonmilitary o enses com- mitted o -post while on an evening pass. The District Court denied re- lief without considering the issue on the merits, and the Court of Appeals for the Third Circuit a rmed. This Court granted certiorari limited to the question:
\Does a court martial, held un- der the Articles of War, Tit. 10, U.S.C. 801 et seq., have jurisdiction to try a member of the Armed Forces who is charged with commission of a crime cognizable in a civilian court and having no military signi cance,
alleged to have been committed o - post and while on leave, thus depriv- ing him of his constitutional rights to indictment by a grand jury and trial by a petit jury in a civilian court?"
The Constitution gives Congress power to \make Rules for the Gov- ernment and Regulation of the land and naval Forces," Art. I, 8, cl. 14, and it recognizes that the exigencies of military discipline require the exis- tence of a special system of military courts in which not all of the spe- ci c procedural protections deemed essential in Art. III trials need ap- ply. The Fifth Amendment specif- ically exempts \cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger" from the require- ment of prosecution by indictment and, inferentially, from the right to trial by jury. (Emphasis supplied.) See Ex parte Quirin, 317 U. S. 1, 317 U. S. 40. The result has been the establishment and development of a system of military justice with funda- mental di erences from the practices in the civilian courts.
If the case does not arise \in the land or naval forces," then the ac- cused gets rst, the bene t of an in- dictment by a grand jury, and sec- ond, a trial by jury before a civil- ian court, as guaranteed by the Sixth Amendment and by Art. III, 2, of the Constitution, which provides in part:
\The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury, and such Trial shall be held in the State where the said Crimes shall have been committed; but when
| 634 | O'Callahan v. Parker, 395 U.S. 258, 265 (1969) |
not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have di- rected."
Those civil rights are the con- stitutional stakes in the present lit- igation. What we wrote in Toth v. Quarles, 350 U. S. 11, 350 U. S. 17- 18, is worth emphasis:
\We nd nothing in the history or constitutional treatment of mil- itary tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or inno- cence of people charged with o enses for which they can be deprived of their life, liberty or property. Un- like courts, it is the primary busi- ness of armies and navies to ght or be ready to ght wars should the occasion arise. But trial of soldiers to maintain discipline is merely inci- dental to an army's primary ghting function. To the extent that those re- sponsible for performance of this pri- mary function are diverted from it by the necessity of trying cases, the ba- sic ghting purpose of armies is not served. And conceding to military personnel that high degree of hon- esty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been, and probably never can be, constituted in such way that they can have the same kind of
Page 395 U. S. 263
quali cations that the Constitu- tion has deemed essential to fair tri- als of civilians in federal courts. For instance, the Constitution does not provide life tenure for those perform-
ing judicial functions in military tri- als. They are appointed by military commanders, and may be removed at will. Nor does the Constitution pro- tect their salaries, as it does judicial salaries. Strides have been made to- ward making courts martial less sub- ject to the will of the executive de- partment which appoints, supervises and ultimately controls them. But, from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals."
\Moreover, there is a great dif- ference between trial by jury and trial by selected members of the mil- itary forces. It is true that military personnel, because of their training and experience, may be especially competent to try soldiers for infrac- tions of military rules. Such training is no doubt particularly important where an o ense charged against a soldier is purely military, such as dis- obedience of an order, leaving post, etc. But, whether right or wrong, the premise underlying the constitu- tional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is in- herent in the institution of trial by jury."
A court martial is tried not by a jury of the defendant's peers which must decide unanimously, but by a panel of o cers [Footnote 2] empow- ered to act by a two-thirds vote.
Page 395 U. S. 264
The presiding o cer at a court martial is not a judge whose ob-
635
jectivity and independence are pro- tected by tenure and undiminishable salary and nurtured by the Judicial tradition, but is a military law o - cer. [Footnote 3] Substantially dif- ferent rules of evidence and proce- dure apply in military trials. [Foot- note 4] Apart from those di erences, the suggestion of the possibility of in-uence on the actions of the court martial by the o cer who convenes it, selects its members and the coun- sel on both sides, and who usually has direct command authority over its members is a pervasive one in mil- itary law, despite strenuous e orts to eliminate the danger. [Footnote 5]
Page 395 U. S. 265
A court martial is not yet an in- dependent instrument of justice, but remains to a signi cant degree a spe- cialized part of the overall mecha- nism by which military discipline is preserved. [Footnote 6]
That a system of specialized mil- itary courts, proceeding by practices di erent from those obtaining in the regular courts and in general less fa- vorable to defendants, is necessary to an e ective national defense es- tablishment few would deny. But the justi cation for such a system rests on the special needs of the mil- itary, and history teaches that ex- pansion of military discipline beyond its proper domain carries with it a threat to liberty. This Court, mind- ful of the genuine need for special military courts, has recognized their propriety in their appropriate sphere, e.g., Burns v. Wilson, 346 U. S. 137, but, in examining the reach of their jurisdiction, it has recognized that
\There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed abso- lutely essential to maintaining disci- pline among troops in active service.
. . ."
\Determining the scope of the constitutional power of Congress to authorize trial by court martial presents another instance calling for limitation to 'the least possible power adequate to the end proposed."
Toth v. Quarles, 350 U. S. 11, 350 U. S. 22-23.
While the Court of Military Ap- peals takes cognizance of some con- stitutional rights of the accused who are court martialed, courts martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law. Article 134, al- ready quoted, punishes
Page 395 U. S. 266
as a crime \all disorders and ne- glects to the prejudice of good order and discipline in the armed forces." Does this satisfy the standards of vagueness as developed by the civil courts? It is not enough to say that a court martial may be reversed on appeal. One of the bene ts of a civil- ian trial is that the trap of Article 134 may be avoided by a declara- tory judgment proceeding or other- wise. See Dombrowski v. P ster, 380 U. S. 479. A civilian trial, in other words, is held in an atmosphere conducive to the protection of indi-
| 636 | O'Callahan v. Parker, 395 U.S. 258, 265 (1969) |
vidual rights, while a military trial is marked by the age-old manifest des- tiny of retributive justice. [Footnote 7]
As recently stated:
\None of the travesties of justice perpetrated under the UCMJ is re- ally very surprising, for military law has always been, and continues to be, primarily an instrument of discipline, not justice."
Glasser, Justice and Captain Levy, 12 Columbia Forum 46, 49 (1969).
The mere fact that petitioner was, at the time of his o ense and of his court martial, on active duty in the Armed Forces does not auto- matically dispose of this case under our prior decisions.
Page 395 U. S. 267
We have held in a series of de- cisions that court martial jurisdic- tion cannot be extended to reach any person not a member of the Armed Forces at the times of both the of- fense and the trial. Thus, discharged soldiers cannot be court martialed for o enses committed while in service. Toth v. Quarles, 350 U. S. 11. Sim- ilarly, neither civilian employees of the Armed Forces overseas, McElroy v. Guagliardo, 361 U. S. 281; Gr- isham v. Hagan, 361 U. S. 278; nor civilian dependents of military per- sonnel accompanying them overseas, Kinsella v. Singleton, 361 U. S. 234; Reid v. Covert, 354 U. S. 1, may be tried by court martial.
These cases decide that courts martial have no jurisdiction to try those who are not members of the
Armed Forces, no matter how inti- mate the connection between their o ense and the concerns of military discipline. From these cases, the Government invites us to draw the conclusion that, once it is established that the accused is a member of the Armed Forces, lack of relationship between the o ense and identi able military interests is irrelevant to the jurisdiction of a court martial.
The fact that courts martial have no jurisdiction over nonsoldiers, whatever their o ense, does not nec- essarily imply that they have un- limited jurisdiction over soldiers, re- gardless of the nature of the o enses charged. Nor do the cases of this Court suggest any such interpreta- tion. The Government emphasizes that these decisions { especially Kin- sella v. Singleton { establish that li- ability to trial by court martial is a question of \status" {
\whether the accused in the court martial proceeding is a person who can be regarded as falling within the term 'land and naval Forces."'
361 U.S. at 361 U. S. 241. But that is merely the beginning of the inquiry, not its end. \Status" is nec- essary for jurisdiction; but it does not follow that ascertainment of \status" completes the inquiry, regardless of the nature, time, and place of the of- fense.
Both in England prior to the American Revolution and in our own national history, military trial of sol- diers committing civilian o enses has been viewed with suspicion. [Foot- note 8] Abuses of the court martial
637
power were an important grievance of the parliamentary forces in the English constitutional crises of the 17th century. The resolution of that con ict came with the acceptance by William and Mary of the Bill of Rights in 1689, which established that, in the future, Parliament, not the Crown, would have the power to de ne the jurisdiction of courts mar- tial. 1 W. & M., Sess. 2, c. 2. The 17th century con ict over the proper role of courts martial in the enforce- ment of the domestic criminal law was not, however, merely a dispute over what organ of government had jurisdiction. It also involved substan- tive disapproval of the general use of military courts for trial of ordinary crimes. [Footnote 9]
Parliament, possessed at last ofnal power in the matter, was quick to authorize, subject to annual re- newal, maintenance of a standing army and to give authority for trial by court martial of certain crimes closely related to military discipline. But Parliament's new power over courts martial was exercised only very sparingly to ordain military ju- risdiction over acts which were also o enses at common law. The rst of the annual mutiny acts, 1 W. & M., c. 5, set the tone. It established the general rule that
\no Man may be forejudged of Life or Limbe, or subjected to any kinde of punishment by Martiall Law or in any other manner than by the Judgement of his Peeres and accord- ing to the knowne and Established Laws of this Realme."
And it proceeded to grant courts
martial jurisdiction only over mutiny, sedition, and desertion. In all other respects, military personnel were to be subject to the \Ordinary Processe of Law."
The jurisdiction of British courts martial over military o enses which were also common law felonies was from time to time extended, [Foot-
| note 10] but, | with the | exception | |||
| of | one | year, | [Footnote | 11] | there |
was never any general military ju- risdiction to try soldiers for ordinary crimes committed in the British Isles. It was, therefore, the rule in Britain at the time of the American Rev- olution that a soldier could not be tried by court martial for a civilian o ense committed in Britain; instead military o cers were required to use their energies and o ce to insure that the accused soldier would be tried before a civil court. [Footnote 12] Evasion and erosion of the princi- ple that crimes committed by soldiers should be tried according to regular judicial procedure in civil, not mil- itary, courts, if any were available, were among the grievances protested by the American Colonists. [Foot- note 13]
Early American practice followed the British model. [Footnote 14] The Continental Congress, in enacting ar- ticles of war In 1776, emphasized the importance of military authority co- operating to insure that soldiers who committed crimes were brought to justice. But it is clear from the con- text of the provision it enacted that it expected the trials would be in civil courts. [Footnote 15] The \general article," which punished
| 638 | O'Callahan v. Parker, 395 U.S. 258, 265 (1969) |
\[all] crimes not capital, and all disorders and neglects, which o cers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war,"
was interpreted to embrace only crimes the commission of which had some direct impact on military dis- cipline. Winthrop *1123. While practice was not altogether consis- tent, during the 19th century, court martial convictions for ordinary civil crimes were from time to time set aside by the reviewing authority on the ground that the charges recited only a violation of the general crimi- nal law, and failed to state a military o ense. Id. *1124, nn. 82, 88. [Foot- note 16]
During the Civil War, Congress provided for military trial of certain civil o enses [Footnote 17] without regard to their e ect on order and discipline, but the act applied only \in time of war, insurrection, or re- bellion." Act of Mar. 3, 1863, c. 75, 30, 12 Stat. 736; Rev.Stat. 1342, Art. 58 (1874). In 1916, on the eve of World War I, the Articles of War were revised, 39 Stat. 650, to provide for military trial, even in peacetime, of certain speci c civilian crimes committed by persons \sub- ject to military law" and the gen- eral article, Art. 96, was modi-ed to provide for military trial of \all crimes or o enses not capital." In 1950, the Uniform Code of Mili- tary Justice extended military juris- diction to capital crimes as well. We have concluded that the crime, to be under military jurisdiction, must
be service-connected, lest \cases aris- ing in the land or naval forces, or in the Militia, when in actual ser- vice in time of War or public dan- ger," [Footnote 18] as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the bene ts of an indict- ment by a grand jury and a trial by a jury of his peers. The power of Congress to make \Rules for the Government and Regulation of the land and naval Forces," Art. I, 8, cl. 14, need not be sparingly read in order to preserve those two impor- tant constitutional guarantees. For it is assumed that an express grant of general power to Congress is to be exercised in harmony with express guarantees of the Bill of Rights. We were advised on oral argument that Art. 134 is construed by the mili- tary to give it power to try a member of the armed services for income tax evasion. This article has been called \a catch-all" that \incorporates al- most every Federal penal statute into the Uniform Code." R. Everett, Mil- itary Justice in the Armed Forces of the United States 68-69 (1956). The catalogue of cases put within reach of the military is indeed long, and we see no way of saving to service- men and servicewomen in any case the bene ts of indictment and of trial by jury if we conclude that this pe- titioner was properly tried by court martial.
In the present case, petitioner was properly absent from his military base when he committed the crimes with which he is charged. There was no connection { not even the re-
639
motest one { between his military du- ties and the crimes in question. The crimes were not committed on a mil- itary post or enclave; nor was the person whom he attacked perform- ing any duties relating to the mili- tary. Moreover, Hawaii, the situs of the crime, is not an armed camp un- der military control, as are some of our far- ung outposts.
Finally, we deal with peacetime o enses, not with authority stem- ming from the war power. Civil courts were open. The o enses were committed within our territorial lim- its, not in the occupied zone of a for- eign country. The o enses did not involve any question of the outing of military authority, the security of a military post or the integrity of mil- itary property. [Footnote 19]
We have accordingly decided that, since petitioner's crimes were not service-connected, he could not be tried by court martial, but rather was entitled to trial by the civilian courts.
Reversed.
[Footnote 1]
Article 80 of the Uniform Code of Military Justice (10 U.S.C. 880) provides in part:
\(a) An act, done with speci c intent to commit an o ense under this chapter, amounting to more than mere preparation and tending, even though failing, to e ect its commis- sion, is an attempt to commit that o ense."
\(b) Any person subject to this chapter who attempts to commit any o ense punishable by this chapter
shall be punished as a court martial may direct, unless otherwise speci - cally prescribed."
Article 130 (10 U.S.C. 930) pro- vides:
\Any person subject to this chap- ter who unlawfully enters the build- ing or structure of another with in- tent to commit a criminal o ense therein is guilty of housebreaking and shall be punished as a court martial may direct."
Article 134 (10 U.S.C. 934) pro- vides:
\Though not speci cally men- tioned in this chapter, all disor- ders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and o enses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, spe- cial, or summary court martial, ac- cording to the nature and degree of the o ense, and shall be punished at the discretion of that court."
[Footnote 2]
Under Art. 25(c) of the Uni- form Code of Military Justice, 10 U.S.C. 825(c), at least. one-third of the members of the court martial trying an enlisted man are required to be enlisted men if the accused requests that enlisted personnel be included in the court martial. In practice, usually only senior enlisted personnel, i.e., noncommissioned o - cers, are selected. See United States v. Crawford, 15 U.S.C.M.A. 31, 35 C.M.R. 3, motion for leave to le pe-
| 640 | O'Callahan v. Parker, 395 U.S. 258, 265 (1969) |
tition for certiorari denied, 380 U.S. 970. See generally Schiesser, Trial by Peers: Enlisted Members on Courts Martial, 15 Catholic U.L.Rev. 171 (1966).
[Footnote 3]
At the time petitioner was tried, a general court martial was presided over by a \law o cer," who was re- quired to be a member of the bar and certi ed by the Judge Advocate General for duty as a law o cer. U.C.M.J. Art. 26(a). The \law o - cer" could be a direct subordinate of the convening authority. Manual for Courts Martial, United States, 1951, 4g(1). The Military Justice Act of 1968, 82 Stat. 1335, establishes a system of \military judges" intended to insure that, where possible, the presiding o cer of a court martial will be a professional military judge, not directly subordinate to the con- vening authority.
[Footnote 4]
For example, in a court martial, the access of the defense to com- pulsory process for obtaining evi- dence and witnesses is, to a signif- icant extent, dependent on the ap- proval of the prosecution. United States v. Harvey, 8 U.S.C.M.A. 538, 25 C.M.R. 42, approving Manual for Courts Martial, United States, 1951, 115a. See Melnick, The Defendant's Right to Obtain Evidence: An Ex- amination of the Military Viewpoint, 29 Mil.L.Rev. 1 (1965).
[Footnote 5]
See, e.g., the cases listed in Hear- ings on Constitutional Rights of Mil- itary Personnel before the Subcom-
mittee on Constitutional Rights of the Senate Committee on the Judi- ciary pursuant to S.Res. No. 260, 87th Cong., 2d Sess., 780-781 (1962), in each of which the Court of Mili- tary Appeals reversed court martial convictions on the ground of exces- sive command in uence.
[Footnote 6]
See Reid v. Covert, 354 U. S. 1, 354 U. S. 36.
[Footnote 7]
For sobering accounts of the im- pact of so-called military justice on civil rights of members of the Armed Services, see Hearings on Constitu- tional Rights of Military Personnel before the Subcommittee on Consti- tutional Rights of the Senate Com- mittee on the Judiciary pursuant to S.Res. No. 260, 87th Cong., 2d Sess., Feb. 20 and 21, March 1, 2, 6, 9, and 12, 1962; Joint Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary and a Special Subcom- mittee of the Senate Armed Services Committee, 89th Cong., 2d Sess., on S. 745 et al., Pt. 1, Jan. 18, 19, 25, and 26, March 1, 2, and 3, 1966, and Pt. 2. For a newly enacted Mil- itary Justice Act, see 82 Stat. 1335. And see Summary Report of Hear- ings on Constitutional Rights of Mili- tary Personnel, by the Subcommittee on Constitutional Rights of the Sen- ate Committee on the Judiciary, pur- suant to S.Res. No. 58, 88th Cong., 1st Sess. (1963) (Comm.Print).
[Footnote 8]
The record of historical concern over the scope of court martial ju-
641
risdiction is extensively reviewed in MR. JUSTICE BLACK's opinion for a plurality of the Court in Reid v. Covert, 354 U. S. 1, 354 U. S. 23- 30. See also Duke & Vogel, The Con- stitution and the Standing Army: Another Problem of Court Martial Jurisdiction, 13 Vand.L.Rev. 435, 441-449 (1960); F. Wiener, Civilians Under Military Justice (1967) (here- inafter cited as Wiener).
[Footnote 9]
See Reid v. Covert, 354 U. S. 1, 354 U. S. 23-26.
[Footnote 10]
See Wiener c. 1.
[Footnote 11]
The Mutiny Act of 1720, 7 Geo. 1, c. 6, provided that a soldier could be court martialed for
\any Capital Crime, or . . . any Violence or O ence against the Per- son, Estate, or Property of any of the Subjects of this Kingdom, which is punishable by the known Laws of the Land"
unless the civil authorities, within eight days of the o ense, de- manded that the accused soldier be turned over to them for trial. In November, 1720, the law o cers of the Army relied on this new provision of the Mutiny Act to give an opinion that it was proper to try a soldier in Scotland { where ordinary civil courts were functioning { by court martial for an o ense which would have been murder if prosecuted in the civil courts. See Wiener 245- 246. The very next year { perhaps in response to that ruling, Wiener 14 {
the provision was eliminated, and did not reappear. The 1721 Act and its successors provided for military trial of common law crimes only where ordinary civil courts were unavail- able. See Prichard, The Army Act and Murder Abroad, 1954 Camb.L.J. 232; Wiener 14, 24-2.
[Footnote 12]
Failure to produce a soldier for civil trial was a military o ense by the o cer concerned. E.g., British Articles of War of 1765, 11, Art. 1, reprinted in W. Winthrop, Military Law and Precedents *1448, *1456 (2d ed. 1896, 1920 reprint) (here- inafter cited as Winthrop).
[Footnote 13]
See Reid v. Covert, 354 U. S. 1, 354 U. S. 27-28 and n. 49.
[Footnote 14]
In its brief, the Government lists a large number of courts martial in the very early days of the Nation which it claims indicate that mili- tary trial for civil o enses was com- mon in that period. The facts of the cases, as re ected in the brief summaries which are available to us, suggest no such conclusion. In al- most every case summarized, it ap- pears that some special military in- terest existed. Many are peculiarly military crimes { desertions, assaults on and thefts from other soldiers, and stealing government property. While those acts might also be felonies, by the time of the Revolutionary War, o enses such as these long had been de ned as distinctively military crimes in the Mutiny Acts. Many of the remainder are identi ably pros-
| 642 | O'Callahan v. Parker, 395 U.S. 258, 265 (1969) |
ecutions for abusing military posi- tion by plundering the civil popula- tion or abusing its women while on duty. Many of the other cases in which the o ense is stealing or as- sault on an individual were perhaps of this sort also, especially where the victim is referred to as \inhabitant." Most of the rest simply recite the of- fender and the o ense and give no ba- sis for judging the relationship of the o ense to military discipline. Those few which do appear to involve civil- ian crimes in clearly civilian settings appear also to have been commit- ted by o cers. In the 18th century, at least, the \honor" of an o cer was thought to give a speci c mili- tary connection to a crime otherwise without military signi cance. More- over, all those court martial held be- tween 1773 and 1783 were for the trial of acts committed in wartime and, given the pattern of ghting in those days, in the immediate theater of operations.
[Footnote 15]
1776 Articles of War, 10, Art. 1, reprinted in Winthrop *1494.
[Footnote 16]
Cf. Ex parte Mason, 105 U. S. 696, 105 U. S. 698, in which the Court, sustaining a court martial conviction, under the general article, of a military guard who killed a pris- oner, said,
\[s]hooting with intent to kill is a civil crime, but shooting by a sol- dier of the army standing guard over a prison, with intent to kill a pris- oner con ned therein, is not only a crime against society, but an atro-
cious breach of military discipline."
[Footnote 17]
Larceny, robbery, burglary, ar- son, mayhem, manslaughter, murder, assault and battery with intent to kill, wounding by shooting or stab- bing with an intent to commit mur- der, rape, or assault and battery with an intent to commit rape. Rev.Stat. 1342, Art. 58 (1874).
[Footnote 18]
It has been suggested, at various times, that the phrase \when in ac- tual service in time of War or pub- lic danger" should be read to require a grand jury indictment in all cases \arising in the land or naval forces, or in the Militia," except when the de- fendant is in \service in time of War or public danger." It was decided at a very early date, however, that the above clause modi es only \Mili- tia." Thus, the generally accepted rule is that indictment by grand jury is never necessary \in cases arising in the land or naval forces," but is necessary for members of the militia, except when they have been \called into the actual Service of the United States" (Art. II, 2, U.S.Const.) \to execute the Laws of the Union, sup- press Insurrections and repel Inva- sions." Art. I, 8, U.S.Const.
\The limitation as to actual ser- vice in time of war or public danger' relates only to the militia." Ex parte Mason, 105 U. S. 696, 105 U. S. 701. See also Smith v. Whitney, 116 U. S. 167, 116 U. S. 186; Kurtz v. Mo tt, 115 U. S. 487, 115 U. S. 500; Dynes v. Hoover, 20 How. 65.
Johnson. v. Sayre, 158 U. S. 109,
643
was a case in which a Navy paymas- ter sought habeas corpus from his court martial conviction for embez- zlement in time of peace by arguing that he was entitled to indictment by grand jury:
\The decision below is based upon the construction that the words 'when in actual service in time of war or public danger' refer not merely to the last antecedent, 'or in the mili- tia,' but also to the previous clause, 'in the land or naval forces.' That construction is grammatically possi- ble. But it is opposed to the evident meaning of the provision, taken by it- self, and still more so when it is con- sidered together with the other pro- visions of the Constitution."
Id. at 158 U. S. 114. And see Thompson v. Willingham, 217 F.Supp. 901 (D.C.M.D.Pa.), a 'd, 318 F.2d 657 (C.A.3d Cir.).
[Footnote 19]
Winthrop, in commenting on the phrase \to the prejudice of good or- der and military discipline" in a pre- decessor article to Article 134 said:
\A crime, therefore, to be cogniz- able by a court martial under this Article, must have been committed under such circumstances as to have directly o ended against the govern- ment and discipline of the military state. Thus, such crimes as theft from or robbery of an o cer, sol- dier, post trader, or camp-follower; forgery of the name of an o cer, and manslaughter, assault with in- tent to kill, mayhem, or battery, committed upon a military person; inasmuch as they directly a ect mil-
itary relations and prejudice mili- tary discipline, may properly be { as they frequently have been { the subject of charges under the present Article. On the other hand, where such crimes are committed upon or against civilians, and not at or near a military camp or post or in breach or violation of a military duty or or- der, they are not in general to be re- garded as within the description of the Article, but are to be treated as civil, rather than military, o enses."
Pp. *1124-*1125.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting.
I consider that the terms of the Constitution and the precedents in this Court point clearly to sustain- ing court martial jurisdiction in this instance. The Court's largely one- sided discussion of the competing in- dividual and governmental interests at stake, and its reliance upon what are, at best, wholly inconclusive his- torical data, fall far short of support- ing the contrary conclusion which the majority has reached. In sum, I think that the Court has grasped for itself the making of a determination which the Constitution has placed in the hands of the Congress, and that, in so doing, the Court has thrown the law in this realm into a demoralizing state of uncertainty. I must dissent.
My starting point is the language of Art. I, 8, cl. 14, of the Constitu- tion, which empowers the Congress \[t]o make Rules for the Government and Regulation of the land and naval Forces," and the Fifth Amendment's
| 644 | O'Callahan v. Parker, 395 U.S. 258, 265 (1969) |
correlative exception for \cases aris- ing in the land or naval forces."
Writing for a plurality of the Court in Reid v. Covert, 354 U. S. 1 (1957), MR. JUSTICE BLACK ex- plained that, if the
\language of Clause 14 is given its natural meaning . . . , [t]he term 'land and naval Forces' refers to per- sons who are members of the armed services . . . ,"
id. at 354 U. S. 19-20, and that, accordingly, the Fifth Amendment's exception encompasses persons \in' the armed services." Id. at 354 U. S. 22-23. In Kinsella v. Singleton, 361 U. S. 234 (1960), again looking to the constitutional language, the Court noted that \military jurisdic- tion has always been based on the `status' of the accused, rather than on the nature of the o ense," id. at 361 U. S. 243; that is, whether the accused \is a person who can be regarded as falling within the term `land and naval Forces."' Id. at 361 U. S. 241.
In these cases and many others, Ex parte Milligan, 4 Wall. 2, 71 U. S. 123 (1866); Coleman v. Tennessee, 97 U. S. 509 (1879); Smith v. Whit- ney, 116 U. S. 167, 116 U. S. 184-185 (1886); Johnson v. Sayre, 158 U. S. 109, 158 U. S. 114 (1895); Grafton v. United States, 206 U. S. 333, 206 U. S. 348 (1907), this Court has consis- tently asserted that military \status" is a necessary and su cient condi- tion for the exercise of court martial jurisdiction. The Court has never previously questioned what the lan- guage of Clause 14 would seem to
make plain { that, given the requi- site military status, it is for Congress, and not the Judiciary, to determine the appropriate subject matter juris- diction of courts martial. See Cole- man v. Tennessee, supra, at 97 U. S. 514. English constitutional history provides scant support for the Court's novel interpretation of Clause 14, and the pertinent Ameri- can history proves, if anything, quite the contrary.
The English history on which the majority relies reveals a longstanding and multifaceted struggle for power between the military and the Crown, on the one hand, and Parliament, on the other, which focused, inter alia, on the King's asserted independent prerogative to try soldiers by court martial in time of peace. See gen- erally J. Tanner, English Constitu- tional Con icts of the Seventeenth Century (1961). The martial law of the time was, moreover, arbitrary, and alien to established legal prin- ciples. See 1 W. Blackstone's Com- mentaries 413; M. Hale, History and Analysis of the Common Law in Eng- land 42 (6th ed. 1820). Thus, when, with the Glorious Revolution of 1688, Parliament gained exclusive author- ity to create peacetime court martial jurisdiction, it exercised that author- ity sparingly: the early Mutiny Acts permitted trial by court martial only for the crimes of mutiny, sedition, and desertion. E. g., Mutiny Act of 1689, 1 W. & M., Sess. 2, c. 4.
Parliament subsequently ex- panded the military's peacetime ju- risdiction both abroad and at home. See Mutiny Act of 1712, 12 Anne,
| 645 | |||||||||||||
| of national exigencies, or the cor- | |||||||||||||
| c. 13; Mutiny Act of 1803, 43 Geo. | |||||||||||||
| 3, c. | 20. | And, signi cantly, | 46 of | responding extent & variety of the | |||||||||
| the Mutiny Act of 1720, 7 Geo. 1, c. | means which may be necessary to | ||||||||||||
| 6, authorized trial by court martial | satisfy them." | ||||||||||||
| for o enses of a nonmilitary nature if | The Federalist, No. | 23. | (Em- | ||||||||||
| the injured civilian made no request | |||||||||||||
| phasis omitted.) | American exercise | ||||||||||||
| that the accused be tried in the civil | of court martial jurisdiction prior to, | ||||||||||||
| courts. See F. Wiener, Civilians Un- | and contemporaneous with, adoption | ||||||||||||
| der Military Justice 13-14, 245-246 | of the Constitution lends no | sup- | |||||||||||
| (1967). [Footnote 2/1] | port to the Court's position. | Mili- | |||||||||||
| The burden of English history | tary records between the end of the | ||||||||||||
| was | not | lost on | the Framers of | War of Independence and the begin- | |||||||||
| our | Constitution, | who | doubtless | ning of the War of 1812 show fre- | |||||||||
| feared the Executive's assertion of | quent instances of trials by court | ||||||||||||
| an | independent military | authority | martial, east of the frontier, for of- | ||||||||||
| unchecked by the people acting | fenses against civilians and the civil | ||||||||||||
| through the Legislature. | Article 9, | laws, such as theft, assault, and | |||||||||||
| 4, of the Articles of Confederation { | killing livestock. [Footnote 2/3] Mil- | ||||||||||||
| from | which Art. | I, | 8, cl. | 14, of | itary authority to try soldiers for | ||||||||
| the Constitution was taken [Footnote | such o enses derived initially from | ||||||||||||
| 2/2] { was responsive to this appre- | the \general article" of war, rst en- | ||||||||||||
| hension: | acted by the Continental Congress | ||||||||||||
| \The United States in Congress | in 1775, [Footnote 2/4] and incorpo- | ||||||||||||
| assembled shall . | . . | have the sole | rated today in Art. 134, 10 U.S.C. | ||||||||||
| and exclusive right and power of . . | 934. | W. Winthrop's Military | Law | ||||||||||
| . | making rules for the government | and Precedents (2d ed. | 1896), the | ||||||||||
| and regulation of the . . . land and | leading 19th century treatise on mil- | ||||||||||||
| naval forces, and directing their op- | itary law, recognized that the general | ||||||||||||
| erations." | article encompassed crimes \commit- | ||||||||||||
| ted upon or against civilians . . . at | |||||||||||||
| (Emphasis added.) | But nothing | ||||||||||||
| or near a military camp or post" id. | |||||||||||||
| in the debates over our Constitution | at 724 (1920 reprint) (second empha- | ||||||||||||
| indicates that the Congress was for- | sis added), and noted that even this | ||||||||||||
| ever to be limited to the precise scope | limiting principle was not strictly ob- | ||||||||||||
| of court martial jurisdiction existing | served. Id. at 725, 730-732. And in | ||||||||||||
| in | 17th century England. | To the | Grafton v. United States, 206 U. S. | ||||||||||
| contrary, Alexander Hamilton stated | 333, 206 U. S. 348 (1907), the Court | ||||||||||||
| that Congress' power to prescribe | held, with respect to the general ar- | ||||||||||||
| rules for the government of the armed | ticle, that: | ||||||||||||
| forces | \The crimes referred to in that | ||||||||||||
| \ought to exist without limita- | |||||||||||||
| article manifestly embrace those not | |||||||||||||
| tion, because it is impossible to fore- | capital, committed by o cers or sol- | ||||||||||||
| see or de ne the extent and variety | diers of the Army in violation of pub- | ||||||||||||
| 646 | O'Callahan v. Parker, 395 U.S. 258, 265 (1969) |
lic law as enforced by the civil power. No crimes committed by o cers or soldiers of the Army are excepted by the . . . article from the jurisdic- tion thus conferred upon courts mar- tial except those that are capital in their nature. . . . [T]he juris- diction of general courts martial [is]
. . . concurrent with that of the civil courts. [Footnote 2/5] " Even if the practice of early American courts martial had been otherwise, this would hardly lead to the con- clusion that Congress lacked power to authorize military trials under the present circumstances. It cannot be seriously argued as a general mat- ter that the constitutional limits of congressional power are coterminous with the extent of its exercise in the late 18th and early 19th centuries. [Footnote 2/6] And however restric- tively the power to de ne court mar- tial jurisdiction may be construed, it would be patently wrong so to limit that power. The disciplinary requirements of today's armed force of over 3,000,000 men [Footnote 2/7] are manifestly di erent from those of the 718-man army [Footnote 2/8] in existence in 1789. Cf. The Federal- ist, No. 23, quoted, supra, at 395 U. S. 277. By the same token, given an otherwise valid exercise of the Arti- cle I power, I can perceive no basis for judicial curtailment of court martial jurisdiction as Congress has enacted it.
In the light of the language and history of Art. 1; 8, cl. 14, of the Constitution, and this Court's hith- erto consistent interpretation of this provision, I do not believe that the
resolution of the controversy before us calls for any balancing of interests. But if one does engage in a balanc- ing process, one cannot fairly hope to come up with a meaningful answer unless the interests on both sides are fully explored. The Court does not do this. Rather, it chooses to ig- nore strong and legitimate govern- mental interests which support the exercise of court martial jurisdiction even over \nonmilitary" crimes.
The United States has a vital in- terest in creating and maintaining an armed force of honest, upright, and well disciplined persons, and in preserving the reputation, morale, and integrity of the military services. Furthermore, because its personnel must, perforce, live and work in close proximity to one another, the mili- tary has an obligation to protect each of its members from the misconduct of fellow servicemen. [Footnote 2/9] The commission of o enses against the civil order manifests qualities of attitude and character equally de- structive of military order and safety. The soldier who acts the part of Mr. Hyde while on leave is, at best, a precarious Dr. Jekyll when back on duty. Thus, as General George Washington recognized:
\All improper treatment of an in- habitant by an o cer or soldier be- ing destructive of good order and dis- cipline as well as subversive of the rights of society is as much a breach of military as civil law, and as pun- ishable by the one a the other."
14 Writings of George Washing- ton 140-141 (Bicent. ed.). A sol- dier's misconduct directed against
647
civilians, moreover, brings discredit upon the service of which he is a member:
\Under every system of military law for the government of either land or naval forces, the jurisdiction of courts martial extends to the trial and punishment of acts of military or naval o cers which tend to bring dis- grace and reproach upon the service of which they are members, whether those acts are done in the perfor- mance of military duties, or in a civil position. . . ."
Smith v. Whitney, 116 U. S. 167, 116 U. S. 183-184 (1886). The Gov- ernment, thus, has a proper concern in keeping its own house in order by deterring members of the armed forces from engaging in criminal mis- conduct on or o the base, and by re- habilitating o enders to return them to useful military service. [Footnote 2/10]
The exercise of military jurisdic- tion is also responsive to other prac- tical needs of the armed forces. A soldier detained by the civil author- ities pending trial, or subsequently imprisoned, is, to that extent, ren- dered useless to the service. Even if he is released on bail or recogni- zance, or ultimately placed on pro- bation, the civil authorities may re- quire him to remain within the juris- diction,thus making him unavailable for transfer with the rest of his unit or as the service otherwise requires.
In contrast, a person awaiting trial by court martial may simply be restricted to limits, and may \partic- ipate in all military duties and activ-
ities of his organization while under such restriction." Manual for Courts Martial, United States (1969), 20b. The trial need not be held in the ju- risdiction where the o ense was com- mitted. Id., 8. See, e.g., United States v. Voorhees, 4 U.S.C.M.A. 509, 515, 16 C.M.R. 83, 89 (1954); cf. United States v. Gravitt, 5 U.S.C.M.A. 249, 256, 17 C.M.R. 249, 256 (1954). And punishments { such as forfeiture of pay, restriction to lim- its, and hard labor without con ne- ment { may be imposed that do not keep the convicted serviceman from performing his military duties. See Manual for Courts Martial, supra, 126g, h, k.
The Court does not explain the scope of the \service-connected" crimes as to which court martial ju- risdiction is appropriate, but it ap- pears that jurisdiction may extend to \nonmilitary" o enses in appropriate circumstances. Thus, the Court inti- mates that it is relevant to the juris- dictional issue in this case that pe- titioner was wearing civilian clothes, rather than a uniform, when he com- mitted the crimes. Ante at 395 U. S. 259. And it also implies that plun- dering, abusing, and stealing from civilians may sometimes constitute a punishable abuse of military posi- tion, ante at 395 U. S. 270, n. 14, and that o cers may be court martialed for purely civilian crimes, because,
\[i]n the 18th century . . . , the 'honor' of an o cer was thought to give a speci c military connection to a crime otherwise without military signi cance. [Footnote 2/11]"
Ibid. But if these are illustrative
| 648 | O'Callahan v. Parker, 395 U.S. 258, 265 (1969) |
cases, the Court suggests no general standard for determining when the exercise of court martial jurisdiction is permissible.
Whatever role an ad hoc judicial approach may have in some areas of the law, the Congress and the mil- itary are at least entitled to know with some certainty the allowable scope of court martial jurisdiction. Otherwise, the in nite permutations of possibly relevant factors are bound to create confusion and proliferate litigation over the jurisdictional issue in each instance. Absolutely nothing in the language, history, or logic of the Constitution justi es this uneasy state of a airs which the Court has today created.
I would a rm the judgment of the Court of Appeals.
[Footnote 2/1]
This proviso was dropped in the Mutiny Act of 1721, 8 Geo. 1, C. 3, and court martial jurisdiction over such o enses was thereafter limited by the articles of war to, inter alia, \Place[s] beyond the Seas . . . where there is no form of Our Civil Judica- ture in Force." F. Wiener, Civilians Under Military Justice 14 (1967).
[Footnote 2/2]
See 2 M. Farrand, The Records of the Federal Convention of 1787, p. 330 (1911); 5 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Consti- tution as Recommended by the Gen- eral Convention at Philadelphia in 1787, p. 443 (1836).
[Footnote 2/3]
For example: the general orders of George Washington report the trial of soldiers for \killing a Cow .
. stealing Fowls . . . . and stealing eleven Geese. . . ." 26 Writings of George Washington 73 (Bicent. ed.) (H.Q., Newburgh, January 28, 1783), and \for stealing a number of Shirts and blanketts out of the public store at Newburgh. . . ." Id. at 322 (H.Q., Newburgh, April 15, 1783). The Orderly Books of the Corps of Artillerists and Engineers report the court martial of Sergeant Harris for \beating a Mr. Williams, an inhabi- tant living near this garrison," Book 1, pp. 157-158 (West Point, Octo- ber 5, 1795), and of Private Kelly for \abusing and using violence on Mrs. Cronkhyte, a citizen of the United States." Book 3, pp. 446 (West Point, July 5, 1796). Numer- ous other instances of military pun- ishment for nonmilitary crimes dur- ing the period 1775-1815 are summa- rized in the appendix to the Brief for the United States 35-52.
[Footnote 2/4]
\All crimes, not capital, and all disorders and neglects, which o cers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the articles of war, are to be taken cognizance of by a general or reg- imental court martial, according to the nature and degree of the o ence, and be punished at their discretion."
W. Winthrop, Military Law and Precedents 957 (2d ed. 1896, 1920 reprint).
[Footnote 2/5]
649
In 1916, Congress for the rst time explicitly authorized peacetime court martial jurisdiction for speci c noncapital o enses. Article 93, Arti- cles of War, 39 Stat. 664. It also re- vised the general article, renumbered Article 96, to read:
\Though not mentioned in these articles, all disorders and neglects to the prejudice of good order and mil- itary discipline, all conduct of a na- ture to bring discredit upon the mil- itary service, and all crimes or of- fenses not capital, of which persons subject to military law may be guilty, shall be taken cognizance of by a general or special or summary court martial, according to the nature and degree of the o ense, and punished at the discretion of such court."
Testifying before the Senate Subcommittee on Military A airs, Brigadier General Crowder, the Judge Advocate General of the Army, explained the revision (cf. n. 4, supra):
\You will notice some transpo- sition of language. The phrase 'to the prejudice of good order and mil- itary discipline' is put in in such a way that it quali es only 'all disor- ders and neglects.' As the law stands today, it was often contended that this phrase quali ed also 'all crimes not capital.' There was some argu- ment about whether it would reach back through that clause, 'all disor- ders and neglects,' to the clause 'all crimes not capital' and qualify the latter clause. . . . [B]ut Justice Harlan, in the decision in the Grafton case, seems to have set the matter at rest, and I am proposing legislation
along the lines of Justice Harlan's de- cision."
Hearings before the Senate Sub- committee on Military A airs, an Appendix to S.Rep. No. 130, 64th Cong., 1st Sess., 25, 91.
The Act of March 3, 1863, 30, 12 Stat. 736, authorized punishment for speci c nonmilitary crimes, includ- ing capital ones, in time of war, in- surrection, or rebellion. Article 92 of the 1916 Articles of War, 39 Stat. 664, made murder and rape punish- able by death, but provided that
\no person shall be tried by court martial for murder or rape commit- ted within the geographical limits of the States of the Union and the Dis- trict of Columbia in time of peace."
This proviso was deleted in the Uniform Code of Military Justice, Articles 118, 120, 10 U.S.C. 918, 920, so that, today, there is no juris- dictional distinction between capital and noncapital o enses.
[Footnote 2/6]
On such a theory, for example, Congress could not have permissibly waited, as it did, until 1875, see Act of March 3, 1875, 1, 18 Stat. 470, to confer general federal question ju- risdiction on the district courts; the present-day exercise of this jurisdic- tion, see 28 U.S.C. 1331, would be unconstitutional.
[Footnote 2/7]
Statistical Abstract of The
United States 257 (1968).
[Footnote 2/8]
R. Weigley, History of the United
States Army 566 (1967).
| 650 | O'Callahan v. Parker, 395 U.S. 258, 265 (1969) |
[Footnote 2/9]
Congress may also assume the responsibility of protecting civilians from harms perpetrated by members of the armed forces. For the military is often responsible for bringing to a locality thousands of its personnel { whose numbers may be as great as, and sometimes exceed, the neighbor- ing population { thereby imposing on the local law enforcement agencies a burden which they may be unable to carry.
[Footnote 2/10]
Thus, at petitioner's presentence hearing, Captain Powell testi ed that, \through proper rehabilitation, O'Callahan can make a good sol-
dier," Record Transcript 61, and Ma- jor Turner testi ed:
\He has given superior perfor- mance, as far as I know. . . . He has gone through school, and the Army does have a lot of money wrapped up in this man. . . . I think at this time, here, that a rehabilitation program is in order."
Id. at 64.
[Footnote 2/11]
It is, to say the least, strange that, as a constitutional matter, the military is without authority to dis- cipline an enlisted man for an o ense that is punishable if committed by an o cer.
Index
Central Civil Services (Pension) Rules,
88
Constitution of India, 88
Criminal Misconduct, 1
grant of pension, 88
Investigation by Inspector of Police, 1
Legality of charge, 1
Liberalisation in computation of pen- sion, 88
Major E. G. Barsay, 1
pension for Armed Forces Personnel, 88
Pension is a right, 88
Public Servants charged with others, 1
Sarwan Singh v. The State of Pun- jab, [1957], 3
Special Police Establishment, 1
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