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Rajasthan High Court · body

1997 DIGILAW 1456 (RAJ)

Col. S. G. Dalvi v. Union of India

1997-12-05

V.G.PALSHIKAR

body1997
Honble PALSHIKAR, J.–These three petitions are filed by three Officers of the Indian Army, one of whom is Colonel, another is a Lt. Colonel and the third is a Major. All of them challenge the orders of their attachment and movement on identical grounds. In fact, the orders of attachment impugned in these petitions have been issued as a result of an enquiry conducted by the Army in relation to some incidents connected with the working of the petitioners. Since the challenges are identical and the replies of the State,i.e. the Union of India are also identical in all the cases, single argument was advanced by the learned counsel appearing on behalf of all the three petitioners and it was replied to by the learned Advocate for the Union of India. In view of the identity of questions raised and replies given, these three petitions can be conveniently disposed off by this common order, for which neither of the Advocates have any objection. (2). A Court of Enquiry was initiated in relation to investigation of certain allegations of misconduct alleged to have been occurred in the Army at Suratgarh. During the pendency of this Enquiry it transpired that evidence of certain Officers, including the petitioners, is liable to be recorded. When this evidence was being recorded, it was found that the enquiry may encampass these officers also and, therefore, the attachment orders as are impugned in these petitions were issued. The attachment orders were issued to enable the petitioners to participate in the enquiry going on in relation to the happenings in Suratgarh. The orders of attach- ment are challenged basically on the ground that an Enquiry is being commenced against the petitioners and is being conducted against the petitioners without the petitioners being given the protection of the Army Rule 180 and, therefore, the orders of attachment and all proceedings subsequent thereto are liable to be quashed, being void ab-initio, as violative of the basic tenets of natural justice as enshrined in Army Rule 180. (3). These contentions are opposed and it is submitted that the petitions are premature, the occasion to apply the provisions of Rule 180 has not yet arisen and, therefore, the petitions are premature. It is contended on behalf of the Army that the provisions of Rule 180 are not attracted in relation to Lt. (3). These contentions are opposed and it is submitted that the petitions are premature, the occasion to apply the provisions of Rule 180 has not yet arisen and, therefore, the petitions are premature. It is contended on behalf of the Army that the provisions of Rule 180 are not attracted in relation to Lt. Colonel and Major, whereas they have been complied with in relation to the Colonel and, hence, there is no reason for interference by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution. It was vehemently contended by the learned counsel appearing on behalf of the Army that taking into consideration the necessary requirements of strict discipline in the Indian Army, this Court should be particularly slow in interfering with the proceedings conducted by the Indian Army. According to the learned counsel, at present, no case has arisen to require a writ of criteriori for quashing of the proceedings. (4). In order to decide the rival contentions, it will be proper to take into consideration the facts of this case and various provisions of law applicable in this case. The petitioners have been ordered to be attached and mvoed by the impugned orders for finalisation of Enquiry case pending against them. It is also admitted that the possibility of finalisation of the Disciplinary case against the petitioners arose during the recording of evidence in a complaint against the DDE ME HQ N COR. It is averred by each of the petitioner that by the movement orders or attachment orders, the petitioner is being rooted for initiation of Disciplinary action against him. It would be worthwhile to note that the petitioners have to say about this, exactly in their own words:- ``6. That from the above letters, it is crystal clear that the petitioner is being rooted for initiation of disciplinary action against him and the only fault done by the petitioner is to give his statement when asked from him in an inquiry where he was not concerned with any allegations against him whatsoever. (5). The petitioners have also said that the enquiry conducted at Bhattinda in May `96 was as a matter of fact not even aimed against the petitioner. (5). The petitioners have also said that the enquiry conducted at Bhattinda in May `96 was as a matter of fact not even aimed against the petitioner. It will, thus, be seen that certain things which were levelled during the course of that Enquiry at Bhattinda, it is possible to commence disciplinary proceedings against the petitioners and, therefore, the order of their attachment have been issued which are impugned in this petition. A scrutiny of the averments made in the petition will demonstrate that all grounds speak of violation of the provisions of Rule 180. A scru- tiny of the grounds 1 to 9 in each petition also supports this inference that the entire proceedings are being challenged and sought to be quashed for the reason that the basic right conferred on the petitioners by Army Rule 180 is being violated. It is mandatory in nature and, therefore, the proceedings are vitiated. The learned counsel for the petitioners vehemently contended that the provisions of Rule 180 are mandatory and its infringement results in vitiating the proceedings. Reliance was placed on judgments of this Court as also the Madhya Pradesh High Court. In order to decide this factual controversy and the question as to whether the provisions of Rule 180 are violated or not, in the present cases, it is worthwhile to note these provisions regarding disciplinary proceedings. (6). Army Rules provides for investigation of charges and trial by Court martial. Rule 22 provides for hearing of charge. It permits the Commanding Officer to dismiss the charge, where there is no evidence existing or if it is such that in his discretion should not be proceeded with, he can drop the charge and if he is of the opinion that a charge ought to be proceeded with, he shall, without unncessary delay, proceed. Thus, Rule 22 postulates existence of evidence on the basis of which the Commanding Officer can come to a conclusion either to discharge the delinquent or to proceed with further departmental enquiry. It is this collection of evidence of fact finding enquiry which is contemplated by Rules 177 onwards. Rule 177 provides for such enquiry which is called Court of Inquiry. It reads as under:– ``177. It is this collection of evidence of fact finding enquiry which is contemplated by Rules 177 onwards. Rule 177 provides for such enquiry which is called Court of Inquiry. It reads as under:– ``177. Courts of Inquiry.–(1) A court of inquiry is an assembly of officers or of officers and junior commissioned officers or warrant officers or non-commissioned officers directed to collect evidence, and, if so required, to report with regard to any matter which may be referred to them. (2) The court may consist of any number of officers of any rank, or of one or more officers together with one or more junior commissioned officers or warrant officers or non-commissioned officers. The members of court may belong to any branch or department of the service, according to the nature of the investigation. (3) A court of inquiry may be assembled by the officer in command of anybody of troops, whether belonging to one or more corps. (7). The procedure to be followed by this Court of Inquiry is laid down by Rule 179. (8). Then comes Rule 180 of which heavy reliance is placed by the learned counsel for the petitioners and violation of which is alleged as the cause for quashing of the proceedings. It reads as under:– ``180. Procedure when character of a person subject to the Act is involved.–Save in the case of a prisoner or war who is still absent, whenever any inquiry affects the character or military reputation of a person subject to the Act, full opportunity must be afforded 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, affects his character or military reputation and producing any witnesses in defence of his character or military reputation. The presiding officer of the court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of and fully understands his rights, under this Rule. (9). The presiding officer of the court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of and fully understands his rights, under this Rule. (9). A perusal of the Rule quoted above, will, therefore, reveal that when an inquiry affects the character or military reputation of a person, he may be given full opportunity for the following:– (1) of being present through out the inquiry, (2) of making any statement, (3) of giving any evidence, (4) of cross-examining any witness, and (5) of producing any witness in his own defence. (10). According to the learned counsel for the petitioner, this opportunity, as envisaged by Rule 180, has not been given to the petitioners before they have been ordered to be attached and moved in accordance with the impugned orders and, therefore, the impugned orders are unsustainable in law and deserves to be quashed. This proposition is disputed by the respondents counsel by saying that the stage for application of Rule 180 has not yet arisen. (11). Provisions of Rule 182 need careful consideration and, hence, should be noted completely. ``182. Proceedings of court of inquiry not admissible in evidence.–The proceedings of a court of inquiry, or any confession, statement, or answer to a question made or given at a court of inquiry, shall not be admissible in evidence against a person subject to the Act, nor shall any evidence respective the proceedings of the court be given against any such person except upon the trial of such person for wilfully giving false evidence before that court. (12). It will be seen from the above provision that any confession, statement or answer to a question given at a court of inquiry is made inadmissible in evidence against the person subject to Act. (13). Rule 184 of the Rules then provides as under:- ``184. Right of certain persons to copies of statements and documents.–(1) Any person subject to the Act who is tried by a Court-martial shall be entitled to copies of such statements and documents con- tained in the proceedings of a court of inquiry, as are relevant to his prosecution or defence at his trial. Right of certain persons to copies of statements and documents.–(1) Any person subject to the Act who is tried by a Court-martial shall be entitled to copies of such statements and documents con- tained 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 reputation is affected by the evidence before a court of inquiry shall be entitled to copies of such statements and documents as have a bea- ring on his character or military reputation as aforesaid, unless the Chief of the Army Staff for reasons recorded by him in writing, orders otherwise. (14). It will thus be seen that the opportunity conferred on an Army Personnel by Rule 180 is in fact a requirement of the basic principles of natural justice and is well protected by other Rules made by the Army. In this connection, as have been noted hereinabove, the question that follows for consideration in the light of the facts mentioned above and the law noted above, is whether the orders of attachment impugned in these petitions in any manner violate the provisions of Rule 180 and are, therefore, liable to be quashed or as is contended by the counsel for the respondents, the prayer of the petitioners for quashing the movement orders and further proceedings is premature. (15). It would be worthwhile to note certain decisions of the Supreme Court of India in this regard. The basic judgment in this regard is one delivered by the Supreme Court of India in the case of Lt.Col. Prithvi Pal Singh Bedi and others. (1) These petitions were moved before the Supreme Court under Article 232 of the Constitution which is a fundamental right to protect other fundamental rights conferred on the citizens of India by the Constitution. The decision of the Supreme Court, in the case of Lt.Col. Prithvi Pal Singh Bedi (supra) is a basic decision where while their Lordships of the Supreme Court have extensively considered the provisions of the Army Act and the Rules therein and the rights of persons to whom Army Act apply. In fact, reliance is placed on this judgment both by the petitioners as also by the respondents. (16). Prithvi Pal Singh Bedi (supra) is a basic decision where while their Lordships of the Supreme Court have extensively considered the provisions of the Army Act and the Rules therein and the rights of persons to whom Army Act apply. In fact, reliance is placed on this judgment both by the petitioners as also by the respondents. (16). The entire law, in my opinion, is well summarised by their Lordships of the Supreme Court in para 37 of the Judgment. Their Lordships have held that the provisions of Rule 180 confers a right on the Army personnel of the applicability of the principles of natural justice. The observation of the Supreme Court in this regard is as under:– ``37. Before a general Court martial is convened as provided in Rule 37 it is obligatory for the commanding officer to hear the charge made against the accused in his presence giving an opportunity to the accused to cross-examine any witness against him and to call any witness and make any statement in his defence and that if the commanding officer is so satisfied he can dismiss the charge as pro- vided in sub-Rule (2) of Rule 22. If at the conclusion of the hearing under R.22 the commanding officer is of the opinion that the charge ought to be proceeded with, he has four options open to him, one such being to adjourn the case for the purpose of having the evidence reduced to writing, called summary of evidence. Rule 23 prescribes the procedure for taking down the summary of evidence which, inter alia, provides recording of the evidence of each witness, opportunity to the accused to cross-examine each such witness, etc. Rule 24 provides that the summary of evidence so recorded shall be considered by the commanding officer who at that stage has again three courses open to him, to wit, (a) remand the accused for trial by a Court martial (b) refer the case to the proper superior military authority; and (c) if he thinks it desirable, rehear the case and either dismiss the charge or dispose it of summarily. It was urged that in case of the petitioner Lt.Col. It was urged that in case of the petitioner Lt.Col. Bedi, the commanding officer did not hear the charge in his presence, that no direction to prepare a summary of evidence in which he could participate was given and that without complying with the mandatory requirements of Rules 22 and 23 a direction has been given to convene the Court-martial to try the petitioner. Rules 22 to 24 are mandatory in respect of every person subject to the Act other than an officer. Therefore, the requirements of Rules 22 to 24 are not mandatory in case of an officer and this becomes manifestly clear from sub-Rule (1) of R.25 which provides that where an officer is charged with an offence under Act the investigation shall, if he requires it be held, and the evidence, if he so requires, be taken in his presence in writing in the same manner as nearly as circumstances admit, as is required by Rule 22 and Rule 23 in the case of other persons subject to the Act. The opening words of Rule 22 clearly demonstrate the mandatory applicability of the provisions in Rules 22 and 23 in case of persons subject to Act other than officers. Any lurking doubt in that behalf is removed by the language of Rule 25 which provides that if an officer is charged with an offence under the Act, the investigation, if he requires, shall be held and the evidence, if he require it, shall be taken in his presence. The petitioner is an officer.Therefore, the procedure prescribed in Rules 22 and 23 will not apply proprio vigore to him. If he wants Rr. 22 and 23 to be complied with, it is for him to make a request in that behalf. He has to make a two-fold request : (1) that the investigation shall be done in his presence; and (2) the summary of evidence shall also be drawn in his presence. Petitioner in this case has averred in his petition that the commanding officer did not bear the charge as required by Rule 22 and, therefore, he could not participate in the hearing of the charge nor could be cross-examine the witnesses and make his submissions. (17). It is undisputed in the present case that the stage of application of Rules 22 to 25 has not yet been reached. (17). It is undisputed in the present case that the stage of application of Rules 22 to 25 has not yet been reached. It has been held by the Supreme Court that Rules 22 to 24 are mandatory in respect of every person other than an Officer. The petitioners herein are Officers and it is nowhere alleged that the provisions of Rules 22 to 25 have been violated or any opportunity as contemplated by Rule 180 is not given to the petitioners in any enquiry. What has been provided for by Rule 180 is simply an opportunity to cross-examine the witnesses of the prosecution and to lead evidence in defence and to be present when all these happens. This is also provided in Rules 22 to 25 of the Rules. The respondents are, therefore, right in contending that the petitioners are premature. The reply of the petitioner in this regard deserves to be noted in-extenso. It reads as under:- ``The determination of this court of inquiry has no legal standing and is only for the consideration of the competent authority to proceed under Rule 22. The Honble Supreme Court has held in case of Lt.Col. P.P.S.Bedi vs. Union of India, para 40, as under:– ``.... But it cannot be used to say that whenever in any other enquiry or a enquiry before a Commanding Officer under Rule 22 or a Convening Officer under Rule 37 of the trial by a Court martial, character or military reputation of the officer concerned is likely to be affecteda prior enquiry by the court of inquiry is a sine qua non. Therefore, the contention being without merit, msut be negativated. As such, the petitioner has no cause to agitate against the determination reached by the court of inquiry and as such since no cause of action is revealed and the determination of the court of inquiry are not final orders, the writ petition is premature and liable to be dismi- ssed on this count alone. (18). Thus, the petitioners would have adequate opportunity to defend themselves if and when the proceedings reach the stage contemplated by Rule 22 and thereafter. (18). Thus, the petitioners would have adequate opportunity to defend themselves if and when the proceedings reach the stage contemplated by Rule 22 and thereafter. Merely because they are called for enquiry and their evidence is recorded in a court of inquiry and it is further alleged that there may be some miscon- duct by them, which may be enquired in future they cannot claim the right flowing out of Army Rules 180 at this stage. In the face of Rule 180, which provides specifically that enquiry under Rule 17 can be used as against any Army Personnel. When such is the provision of law, there is no need to give any opportunity of cross-examining or suspending person to any Army Officer even if that court of inquiry or any other inquiry for that matter is held as fact finding inquiry. The right under the Rule 180 and the protection of Rule 180 comes into operation only after initiation of inquiry and proceedings after hearing the party as contemplated by Rule 22. The present petitions are, therefore, premature and are liable to be dismi- ssed on this ground alone. (19). Yet another decision of the Supreme Court in the case of Major G.S. Sodhi (2) requires consideration. The Supreme Court in this decision has observed as under:– ``The procedure is meant to further the ends of justice and not to frus- trate the same. It is not each and every kind of defect preceding the trial that can affect the trial as such. The object and effect of the Rules should be considered in the context bearing in mind the general principle whether such an incomplete compliance has caused any prejudice to the delinquent officer. However, if there is any violation of mandatory Rules, the necessary benefit of the same should be given to the delinquent. The Army authorities are entrusted with certain powers and duties under the Act which also enjoined on them certain important responsibilities particularly in the matter of holding the enquiries and trials. The Parliament in its wisdom in exercise of its powers under Article 33 has enacted this law and the officers are to be guided by factors like exigencies of service, maintenance of discipline in the Army, speedier trial, the nature of the offence and the person against whom the offence is committed. The Parliament in its wisdom in exercise of its powers under Article 33 has enacted this law and the officers are to be guided by factors like exigencies of service, maintenance of discipline in the Army, speedier trial, the nature of the offence and the person against whom the offence is committed. Normally having regard to the high office they hold there should not be any scope to apprehend deliberate lapse or intentional omission on their part. In the present cases, there is no violation of these Rules and at any rate no prejudice has been caused to the petitioner in his defence. Most of the main submissions were only about certain alleged lapses in constituting court of inquiry, recording of summary of evidence, issuance of the charge-sheets, convening order and that all these orders were not signed by a duly authorised officer and about confirmation and promulgation of the Court-martial findings and sentence and discrimination in awarding of sentence. Even if it is assumed that there is some substance in these submissions, they would not affect the trial as such in which both the petitioners duly participated. (20). It will thus be seen that the Supreme Court has held while construing Rules 22 to 25 that some procedure infraction unless vital and substantial, does not effect the trial of a case for misconduct under the Army Act. In the present case, no trial has commenced. There is no question of recording summary of evidence prior to the orders of attachment which are impugned in this case. In any event whatever is being recorded and being said in the court of inquiry, cannot be used by reason of Rule 182 against the petitioners in view of the inquiry if and when started by the respondent Army. In such circumstances, no interference is called for in the pre- sent case at this stage and the same are liable to be dismissed. (21). Great reliance was placed by the learned counsel for the petitioner to a Division Bench judgment of this Court and a Division Bench judgment of Madhya Pradesh High Court (1), wherein it has been held that the provisions of Rule 180 are mandatory in nature. (21). Great reliance was placed by the learned counsel for the petitioner to a Division Bench judgment of this Court and a Division Bench judgment of Madhya Pradesh High Court (1), wherein it has been held that the provisions of Rule 180 are mandatory in nature. The question as to whether the provisions of Rule 180 are mandatory or not does not call for consideration in the present case at this juncture because the orders of attachment in this petition did not initiate any proceedings against the petitioner of a disciplinary nature where following Rule 180 becomes necessary. Apart from that, the judgment delivered by this Court in D.B. Civil Special Appeal No. 551 of 1996 where it has been observed, relying on the judgment of the Madhya Pradesh High Court that Rule 180 of the Army Rules is mandatory, does not consider the decision in AIR 1982 SC 1413 (supra), and, therefore, with deepest respect to the Honble Judges of the Division Bench, the judgement is per incurium to the decision of the Supreme Court of India in the aforesaid decision. Apart from that, as already observed by me, the stage has not come in the present case to consider the mandatory or other nature of Rule 180 or its violation. (22). A perusal of the judgment of the Madhya Pradesh High Court on which heavy stress was laid, also states that observation of Rule 180 is necessary before forming summary Court martial, and an officer is duty bound to satisfy himself with the procedure under Rule 180 was followed by the court of enquiry. In that case, the court of enquiry was held in relation to commission of a criminal offence. In the present case, no criminal offence is alleged against the petitioners. It is a mere case of intended or possible future disciplinary action, and, therefore, those judgments are of no use to the petitioner. (23). In the result, the petitions fail and are dismissed. (24). Looking to the present trend of Army Personnel moving courts of law for alleged violation of their rights, I think it necessary to mention that there is a growing tendency amongst the Army Personnel to move Courts of Law inspite ofthe machinary available within the Army Act. (23). In the result, the petitions fail and are dismissed. (24). Looking to the present trend of Army Personnel moving courts of law for alleged violation of their rights, I think it necessary to mention that there is a growing tendency amongst the Army Personnel to move Courts of Law inspite ofthe machinary available within the Army Act. There is grave possibility of the require- ment of discipline being eroded by frequent interference by Courts of Law in matters which are required to be sternly dealt with under the Army Act. The Courts, in my opinion, exercising its extra ordinary jurisdiction under Article 226 should be very careful and slow in interfering with the departmental proceedings commen- ced under the Army Act. I, therefore, dismiss these petitions with costs, which are quantified at Rs. 500/- per petition.