Birendra Rao Paul v. Union of India — 1993 DIGILAW 344 (ALL)

JUDGMENT : M.L. BHAT, J. 1. The Petitioner, who is subject to the Army Act, has prayed for issuance of a writ of certiorari quashing the rejection order of the statutory complaint by the Chief of the Army Staff, communicated on 11.4.1987 and a writ of mandamus commanding the opposite parties to reinstate the Petitioner as a Gentleman Cadet and to give him commission thereafter retrospectively w.e.f. 8.6.1985 and to treat him as a Gentleman Cadet right from the beginning and give him all consequential benefits. 2. When this writ petition came up for hearing the learned Counsel for the petitioner submitted that he has been reinstated as Gentleman Cadet vide order of the Director General, Military Training, Army Headquarters, New Delhi dated 20.1.1993. This order seems to have been passed in pursuance and implementation of the orders of this Court dated 9.4.1991. The learned Counsel for the Petitioner, therefore, submitted that a writ of certiorari may be issued quashing the order of statutory complaint and a mandamus may be issued to give the Petitioner commission as prayed for. 3. A brief narration of the facts is necessary for the decision of this writ petition. 4. The Petitioner was selected for being imparted the training of 2nd Lieutenant in the Indian Military Academy, Dehradun and thereafter being appointed en such in the Indian Army. He had undergone the training as a Gentleman Cadet and when he was about to complete the said training a court of enquiry was constituted to investigate the allegations made against one Captain V. Sharma, who was stationed in Punjab, Haryana and Himachal Pradesh area. The Petitioner was cited as a witness by the prosecution in the said court of enquiry along with some other persons. The Petitioner as also the other witnesses did not depose in the said enquiry to the satisfaction of the presiding officer of the court of enquiry. The court of enquiry recommended disciplinary action against the Petitioner and -other prosecution witnesses. In pursuance of the opinion of the court of enquiry, the then Commandant, Indian Military Academy, issued a notice to the Petitioner on 17.5.1985 requiring him to explain his involvement in the case of Captain V. Sharma, against whom the said court of enquiry was constituted. The Petitioner is said to have replied - the notice within time and refuted the allegations levelled against him in the said notice. The Petitioner is said to have replied - the notice within time and refuted the allegations levelled against him in the said notice. He is said to have asked for providing an opportunity to him under Rule 180 of the Army Rules to disprove the allegations. After the Petitioner's submission of reply no court of enquiry was assembled nor was any summons issued to him nor was any evidence recorded. No general Court material was instituted in the case. The Petitioner was not also given any opportunity thereafter by the respondents to disprove his case. Without passing any order of punishment and without any further proceedings being taken he was given a movement order on 31.5.1985 and in pursuance of the said order he was compelled to proceed on June 6, 1985 to S.M.E. Centre, Bhopal directing striking of the Petitioner from the strength of the Indian Military Academy by June 7, 1985 fore-noon. A copy of this order in Annexure IV to the writ petition. On, reaching Bhopal the Petitioner was posted as an other rank (known as Sepoy) and his service conditions were prejudiced to his detriment and disadvantages without any written orders from the competent authority. Subsequently the Petitioner on 24.8.1985 came to know through a letter addressed to his father that the Petitioner had been withdrawn from the Indian Military Academy on disciplinary grounds. A copy of this letter is Annexure v. to the writ petition. The Petitioner thereafter filed a statutory complaint on 30.9.1985 to the Chief of the Army Staff through proper channel. A copy of this representation is Annexure VI to the writ petition. This statutory representation seems to have been rejected and according to the Respondents the said decision was approved by the Defence Minister also. 5. The Petitioner submits that he has been treated with discrimination inasmuch as his companion Gentleman Cadets of the Indian Military Academy, who were similarly situated with him, have been posted as 2nd Lieutenant in the Indian Army and are drawing higher salary as Commission Officers and the Petitioner has been reduced in rank without there being any order in this regard. His reduction in rank is not based on any enquiry or any law governing the Petitioner's service conditions. The Petitioner states that he has been punished without following the procedure established by law. His reduction in rank is not based on any enquiry or any law governing the Petitioner's service conditions. The Petitioner states that he has been punished without following the procedure established by law. The Petitioner had appeared only as a witness and any observation made by the court of enquiry, which was constituted against Captain V. Sharma is void ab initio and needs to be quashed. The Petitioner submits that he is entitled to be reinstated retrospectively as 2nd lieutenant with arrears of pay and allowances. The Petitioner had filed a writ petition earlier, which was decided on 18.12.1986 with a direction that his representation be decided by the Chief of the Army Staff without any delay. After great reluctance the, Respondents are said to have conveyed their decision in respect of the statutory representation to the Petitioner on 16.4.1987 informing him that the orders of the superior authorities have been conveyed to the Petitioner on 11.4.1987. The Chief of the Army Staff seems lo have rejected the Petitioner's representation on 11.4.1987. There is no reason given by the Chief of the Army Staff in his order of rejection, though he was under obligation to pass a speaking order. 6. It is submitted that under Rule 182 of the Army Rules it is provided that the proceedings of a court of enquiry or any confession, statement or answer to a question made or given at a court of enquiry is not admissible in evidence against a person subject to the Army Act. 7. On behalf of the Respondents No. 1 to 5 counter affidavit has been filed. It is stated that initially the Petitioner was enrolled in the Electrical and Mechanical Engineering Corps as apprentice in March, 1976. Later on he was selected as Service candidate for the 43rd Army Cadet College course for commissioning into the Indian Army and he joined the Army Cadet College at Dehradun in July, 1981. After completing three years' training at Army Cadet College he is said to have joined the Indian Military Academy for further one year training with 76th Regular Course w.e.f. 19.7.1984. The Headquarters 24 Infantry Division is said to have received a complaint against Captain V. Sharma regarding corrupt practice. On this a court of enquiry was ordered by the Headquarters on 30.11.1982 to investigate the allegations made against the said Captain Sharma. The Headquarters 24 Infantry Division is said to have received a complaint against Captain V. Sharma regarding corrupt practice. On this a court of enquiry was ordered by the Headquarters on 30.11.1982 to investigate the allegations made against the said Captain Sharma. During the course of enquiry the Petitioner was also found to be involved in the milpractice for getting the service candidates selected through service selection Board by unfair means along with Captain V. Sharma. Having been satisfied with the report of the court of enquiry the officiating General Commandant recommended disciplinary action against the Petitioner. The Petitioner was accordingly issued a show cause notice. His reply was found not satisfactory and the same could not be accepted by the Commandant, Indian Military Academy. It is further stated that having fully satisfied themselves that the charges and allegations against the Petitioner are proved, the Commandant, Indian Military Academy and, the Director General, Military Training, Army Head-quarters recommended withdrawal of the Petitioner from the Indian Military Academy because it was not in keeping with the standard expected of a Gentleman cadet to retain him in the Academy. Formal approval of the Defence Minister, Government of India, was obtained. The Administrative Instructions in his regard are reproduced. In para 10 of the Instructions a Gentleman cadet may be withdrawn from the Academy on the ground of being deficient of basic character and other officer like qualities to be graded as unacceptable or on medical ground and disciplinary ground. All cases of withdrawal (except for those on medical grounds) are to be approved by the, Defence Minister. After complying with the administrative instructions the Petitioner was withdrawn from as Gentleman cadet and sent to Bhopal under-intimation to his father. 8. It is stated that the allegations against the Petitioner have been substantiated by the finding of the court of enquiry. Therefore, he cannot be retained in the Army Force. A lenient view has been taken against the Petitioner, who could not be retained as Sepoy also in the Army. It is submitted that the Petitioner has been given full opportunity of his withdrawal order as Gentleman cadet. The order dated 6.6.1985 is said to be valid. It is stated in para 15 (d) of the Administrative Instructions a Gentleman cadet belonging to the Army will be returned to the parental Regimental or Corps Centre pending final approval from the Defence Minister. The order dated 6.6.1985 is said to be valid. It is stated in para 15 (d) of the Administrative Instructions a Gentleman cadet belonging to the Army will be returned to the parental Regimental or Corps Centre pending final approval from the Defence Minister. Therefore, the procedure for his withdrawal was followed. It is stated that no discrimination is meted out to the Petitioner. The contents with regard to the import of Rule 182 are also denied in the reply affidavit. 9. An application for vacation of ad interim order was presented-by the Respondents. An affidavit in support of the said application is also filed. At the time of hearing of the case a reference was made to the contents of this affidavit also. In para 6 of the said affidavit it is stated that as a trainee in the Indian Military Academy one cannot be brought under the purview of the Army Act and the Rules and Regulations made thereunder. The Petitioner is said to have been withdrawn from the Academy because his conduct was in serious doubt. Captain V. Sharma was tried by the Court Martial, which commenced on 17.6.1985. The Court Martial against Captain Sharma had concluded on 11.12.1990. It is stated that the delay in concluding the Court Martial had happened-because of the pendency of the writ petition filed by the said Captain Sharma before the Rajasthan High Court. It is, however, admitted that in the meantime the proceedings against the Petitioner became time-barred under the provisions of the Army Act. Reference is made to Section 122 of the Army Act. It is stated that disciplinary proceedings can be taken against the Petitioner and it is still open to the Respondents to terminate his services u/s 20 of the Army Act read with Rule 17 of the Army Rules. 10. Rejoinder affidavit is also filed by the Petitioner. It is stated that the allegation of the Petitioner's involvement with Captain Sharma was false. The General Officer Commandant, 10 Corps is said to have partially accepted the recommendations of the court of enquiry and recommended that the case be handed over to the SPE/CBI for investigation since (civilian witnesses were also involved in the matter). The case was never handed over to SPE/CBI, as recommended by the General Officer Commandant, 10 Corps for unknown reasons. The case was never handed over to SPE/CBI, as recommended by the General Officer Commandant, 10 Corps for unknown reasons. Recommendation was made against all the witnesses for having made contradictory statements and the accused for corrupt practice. The allegation against the Petitioner was very trivial i.e. retracting from the original statement. A minor punishment could have been given. Withdrawal of the Petitioner from the Academy and his withdrawal from the Academy and posting as Sepoy is a major punishment. The service cadets, who were undergoing training at the Army Training Institution continue to be governed by the Army Act and are subject to the said Act. 11. The Petitioner was never under the command of the G.O.C. In-charge, who had initiated proceedings of the court of enquiry against Captain Sharma. Therefore, if any observation detrimental to the Petitioner was recommended that was to be sent to the Commandant, Army Cadet College, Dehradun for his consideration for taking disciplinary action in terms of the Army Rules. The Petitioner could be dealt with and the case against him had not become barred by time till March, 1986 but no action was taken under the Army Act and Rules at any time against the petitioner in response to the observations made by the Court of enquiry. 12. I have heard the learned Counsel for the parties and examined the record of the case. 13. The contention raised by the Respondents that the Petitioner is not governed by the Army Act is to be rejected at the outset. The Petitioner was enrolled under the Army Act and thereafter he was asked to undergo training in the Military Academy at Dehradun for being considered for the post of 2nd Lieutenant in the Army. He was made Gentleman Cadet and had to complete the course of training within a particular period. He never ceased to be subject to the Army Act u/s 2 of the Army Act he was subject to the Army Act because he, was enrolled under the said Act. Every person subject to the Army Act has to remain so subject until duly retired, discharged, released, removed, dismissed or cashiered from the service. Therefore, the Petitioner will be governed by the provisions of the Army Act. 14. The Petitioner was not tried under the Army Act because his trial had become barred. Every person subject to the Army Act has to remain so subject until duly retired, discharged, released, removed, dismissed or cashiered from the service. Therefore, the Petitioner will be governed by the provisions of the Army Act. 14. The Petitioner was not tried under the Army Act because his trial had become barred. After three years of commission of any offence no trial by the Court-martial of any person subject to Army Act is permissible unless he is sought to be tried for an offence of desertion or fraudulent act or for any of the offences covered by Section 37 of the Army Act. 15. No court of enquiry was set up against the Petitioner. The court of enquiry was set up against one Captain V. Sharma and as a witness the Petitioner's conduct has come under cloud. In the court of enquiry constituted against Capt. Sharma it was revealed that the Petitioner is said to have helped Captain Sharma in making selection of ineligible officers in the Academy at Dehradun. Thereafter no enquiry of any kind was held against the Petitioner by the court of enquiry or by Court martial. The proceedings taken by the court of enquiry against Cap. V. Sharma are said to have culminated in constitution of Court martial, which had heard Capt. Sharma's case. The observations made against the Petitioner were referred to the concerned authorities for appropriate action. The concerned authority does not seem to have pursued the matter further except it gave a show cause notice to the Petitioner and received his reply. The proceedings of court of enquiry or any confession, statement or answer to a question made or given at a court of enquiry is not admissible in evidence against a person subject to the Army Act. Such proceedings may however, be used against a person subject to the Army Act for his trial for wilfully giving false evidence before the court of enquiry. For the limited purpose the proceedings can be used at a trial, if it is proposed to be held to prove the falsity of any statement given by a person subject to the Army Act. Except this the statement made before the court of enquiry or a confession made before it is absolutely inadmissible in evidence. For the limited purpose the proceedings can be used at a trial, if it is proposed to be held to prove the falsity of any statement given by a person subject to the Army Act. Except this the statement made before the court of enquiry or a confession made before it is absolutely inadmissible in evidence. Therefore, any statement given by the Petitioner before the court of enquiry in which he has made any statement or confession is inadmissible evidence and cannot be used against him. 16. It is contended by the Respondents that the departmental action could be taken against the Petitioner and he could be dismissed from service u/s 20 of the Army Act. However, a lenient punishment was given to the Petitioner. He was reverted to his Unit at Bhopal. It is contended that a show cause notice was given to the Petitioner and his reply was received. Therefore, the procedure was complied with and after that he could be dealt with u/s 20 of the Army Act, Section 20 of the Army Act is to be read with Rule 17 of the Army Rules. Departmental enquiry necessarily requires satisfaction of the competent authority that the charge against a person subject to Army Act has been established. If a charge is levelled against a person on the basis of any statement or confession, which is inadmissible in evidence and if the said person denies the charge the competent authority cannot be held to have assumed the satisfaction about the proof of the charge. The inadmissible piece of evidence, whether it is in the form of statement or confession, will not be sufficient for imposing a punishment on a person, who is subject to the Army Act. 17. An observation seems to have been made to deal with the Petitioner for his alleged connivance with Capt. V. Sharma, which came to light during the proceedings of the court of enquiry, which was enquiring into the conduct of Capt. v. Sharma. As a prosecution, witness the Petitioner is said to have made certain statements, which are sought to be made the basis for his punishment. Even if any statement or confession is made by the Petitioner, that will be inadmissible under Rule 182 of the Army Rules because the statement was made before the court of enquiry. v. Sharma. As a prosecution, witness the Petitioner is said to have made certain statements, which are sought to be made the basis for his punishment. Even if any statement or confession is made by the Petitioner, that will be inadmissible under Rule 182 of the Army Rules because the statement was made before the court of enquiry. Therefore, it was necessary for the authorities to held a separate enquiry against the Petitioner under the Army Act and Rules. That was not done, time was allowed to run and u/s 122 of the Army Act the Petitioner's trial had become time- barred. 18. The show cause notice given to the Petitioner on the basis of inadmissible evidence would not be a substitute for department enquiry. If the Petitioner had denied the allegations he could not be reduced in rank u/s 20 of the Army Act. It was necessary for the authorities to satisfy themselves about the correctness of the allegations levelled against the Petitioner by relying on independent evidence. The satisfaction could not be assumed by the authorities on the basis of inadmissible statement or confession made by the Petitioner or by any one else against the Petitioner during the course of the proceedings of court of enquiry. 19. From the record it is revealed that neither any trial was held against the Petitioner nor was any departmental enquiry ordered against the Petitioner to enquire into any of his lapses which are said to have been observed by the court of enquiry, which was constituted against Capt. Sharma. However, the court of enquiry could be constituted against the Petitioner also but that was not done. By issuing a show cause notice on the basis of his statement or statement of any other witness it could not be assumed that the requirements of Section 20 read with Rule 17 of the Army Rules have been complied with. The reduction of rank of the Petitioner is, therefore, without following the procedure established by law. 20. The person, who is subject to the Army Act has to be dealt with under the provisions of the Army Act, A disciplinary action, if desired to be held against any person subject to. the Army Act, is necessarily to be held in accordance with Section 20 read with Rule 17 of the Army Rules. 20. The person, who is subject to the Army Act has to be dealt with under the provisions of the Army Act, A disciplinary action, if desired to be held against any person subject to. the Army Act, is necessarily to be held in accordance with Section 20 read with Rule 17 of the Army Rules. The Petitioner has been reduced in rank and reverted to his original rank, which is a punishment, and for imposing such a punishment it is imperative that the procedure provided under the Army Act and Rules is followed. The persons subject to the Army Act have a guarantee of procedural fairness which means that they must be dealt with according to the procedure laid down under the Army Act and the Rules and there should be fairness in applying the said procedure. If there is omission on the part of the authorities to guarantee procedural safeguard to the persons subject to the Army Act, that would be violative of the Act itself and of the rules framed under the Act. 21. For the foregoing discussion I am of the opinion that reduction of the Petitioner to a lower grade was not fair and was violative of the Army Act and the Rules framed thereunder. However, the Respondents have reinstated the Petitioner as a Gentleman Cadet. Therefore, no direction need be issued to the Respondents for grant of this relief because it has already been granted to the Petitioner. However, it is the duty of the Respondents to treat the Petitioner as Gentleman cadet and to grant him all rights and benefits to which he is entitled as such. The learned counsel for the petitioner submitted that only a mandamus may be issued now to the Respondents to grant the Petitioner all consequential benefits of pay and allowances etc. and to direct the Respondents to give him rank of commissioned officer with effect from 8-6-85 and all consequential benefits of pay and allowances etc. 22. The writ petition succeeds and is allowed to the extent indicated below: (a) The rejection of the Petitioner's statutory complaint by the Chief of the Army Staff, which was communicated to the Petitioner through the letter dated 11.4.1987, contained in Annexure 11 to the writ petition, is quashed. 22. The writ petition succeeds and is allowed to the extent indicated below: (a) The rejection of the Petitioner's statutory complaint by the Chief of the Army Staff, which was communicated to the Petitioner through the letter dated 11.4.1987, contained in Annexure 11 to the writ petition, is quashed. (b) The Respondents are directed to treat the Petitioner as Gentleman Cadet from the date he was enrolled as Gentleman Cadet notwithstanding the fact that he was reverted to the rank of Sepoy for some period. (c) The Respondents are also directed to consider the Petitioner for giving him rank of a Commissioned Officer if he is found otherwise eligible and suitable for such rank. 23. No order as to costs.