RAJMAL SHARMA v. UNION OF INDIA — 1997 DIGILAW 354 (HP)

JUDGMENT M.S.Srinivasan. C.J. (Oral): The petitioner was enrolled in the Army Service on 22.8.1960. He was prompted as a subedar on I 1.1982. He .vas enjoying his annual leave in 1988 and when he was recalled from his leave. He reported to the Company Commander on 2.7.1988., According to the petitioner he was taken to another Unit and interrogated up to 20,7.1988 in which period, according to the petitioner, he was tortured. During that period a statement is said to have been taken from the petitioner pursuant to the said torture and the statement is one of confession. The petitioner was due for retirement on 31.8.1988. The Court Martial was convened and it commenced on 30.9.1988. It was concluded on 18.11.1988 and the petitioner filed a pre-confirmation petition on 28.11.1988. However, the Court Material’s proceeding was confirmed and he was dismissed from service by order dated 8.2.1989. The order was actually promulgated on 20.3.1989. The petitioner field post-confirmation petition to the Chi f of Army Staff on 1.5.1989, which was rejected on 6.1.1990. 2. The petitioner has preferred this writ petition on 21.10.1991. The following contentions are raised by the petitioner. (i) The constitution of the Court Martial was itself improper and in violation of the relevant provisions of the Statutes and the Rules." Under the heading, the first contention of the petitioner is that one of the Members of the Court Martial was substituted when the Court Martial actually commenced the proceedings. Initially the Court Martial Consist of five persons, by name, Ramesh Chandra, Lt. Col Vinod Kumar Bhusari, Maj Yadav Mahabir Singh, Maj Singh. Ram Pukar, and Maj Jai Singh. There were two persons as waiting Members, namely, Lt. Col. Jaggi Madan Lal, and Maj Vasudeva Rao, Krishna Ra,o. When the Court Martial commenced the proceedings it was found that Maj Yadav Mahabir Singh was not available and Maj Vasudeva Rao was substituted in his place. According to the petitioner, that is against the provisions of law and such substitution could not have been, take place at all in law. Consequently, the entire inquiry is vitiated. ii) The second contention is that the Convening Officer did not appoint of the Members of the Court Martial as is evident from the signature 5 found in Annexure P/9 which is this relevant order. Consequently, the entire inquiry is vitiated. ii) The second contention is that the Convening Officer did not appoint of the Members of the Court Martial as is evident from the signature 5 found in Annexure P/9 which is this relevant order. According to the petitioner, it has beer signed only by a Colonel on behalf of officiating Commander, 21 Sub Area and that when taken in conjunction f with Annexure P/l which has been singed by Officiating Commander 21 Sub Area will show that the concerned officer did not apply his mind for nominating the Members of the Court Martial. iii) The next contention of the petitioner is that on merits there was absolutely no evidence to prove that the petitioner was guilty of the charge framed against him. It is contended that the only evidence before the Court Martial consisted of two confessional statements which were obtained by torture and in the absence of any other evidence, the conclusion was un-sustainable. iv) The past contention is that even assuming that the order of dismissal is un-assailable the respondents have not given the pension due to the petitioner and they have not passed any order holding that the petitioner is not entitled to get pension. In the circumstances, a mandamus shall be issued to the respondents, directing to pay the pensionary benefits to the petitioner as per law. 3. We will now proceed to consider each of the contentions set-out above. But before that one circumstance has to be placed on record to the effect that initially an objection was taken by the respondents about the territorial jurisdiction of this Court on the footing that no part of the cause of action arose within the jurisdiction of this Court. When the matter came up before us on 7.8.1997, we directed the respondents to state clearly whether the trial took place at Kandrori or outside the jurisdiction of this State. An affidavit has been filed on 29.8.1997 by Lt Colonel S.M. Dalai to the effect that the trial took place at Kandrori within the territorial jurisdiction of this Court. Hence, that objection does not survive. 4. On the first conventionalised by learned counsel for the petitioner the relevant provisions of the Act and the Rules have, to be referred to. An affidavit has been filed on 29.8.1997 by Lt Colonel S.M. Dalai to the effect that the trial took place at Kandrori within the territorial jurisdiction of this Court. Hence, that objection does not survive. 4. On the first conventionalised by learned counsel for the petitioner the relevant provisions of the Act and the Rules have, to be referred to. Section 109 of the Army Act empowers the Central Government or the Chief of Army Staff or any Officer empowered in that behalf by warrant of the Chief of the Army Staff to convene a general Court Martial. Rule 37 of the Army Rules provides that an officer before convening a General or District Court Martial shall first satisfy himself that the charges to be tried by the Court are for offences within the meaning of the Act and that the evidence justifies a trial on those charges and if not so satisfied shall order the release of the accused or refer the case to superior authority1. The rule also enjoins that an officer shall satisfy himself that tire case is a proper one to be tried by the kind of Court Martial which he proposes to convene and he shall appoint or detail the officers to form the Court and may also appoint or detail such waiting officers as he thinks expedient. 5. In this case, originally five offices were appointed to form the Court Martial under Annexure P/9 by order dated 28.9.1988. We have already referred to their names. Two persons were shown as waiting Members. One of the persons appointed to be a Member of the Court Martial, namely, Maj Yadav, Mahabir Singh was not available and consequently in this place Maj Vasudeva Rao, Krishna Rao was inducted. The contention is that such induction is not j permissible under the Rules. According to the learned counsel waiting Members can be considered only if an objection is raised by the person under-going the trial to the eligibility of the Members constituting the Court Martial and in the absence of such on objection it is not possible to induct the waiting Members into the Court Martial. We are unable to accept this contention. According to the learned counsel waiting Members can be considered only if an objection is raised by the person under-going the trial to the eligibility of the Members constituting the Court Martial and in the absence of such on objection it is not possible to induct the waiting Members into the Court Martial. We are unable to accept this contention. Rule 38 provides that if before the accused is arraigned, the full number of officers detailed are not available to serve by reason of non-eligibility, disqualification, challenge or otherwise, and if there are not a sufficient number of officers in waiting to take the place of those unable to serve, the court shall ordinarily adjourn for purpose of fresh members being appointed. According to the learned counsel the word otherwise must be construed ejusdem generis with the words non-eligibility, disqualification and challenge. It is, therefore, contended that unless such an objection is raised, the waiting member cannot be inducted into the Court Martial. This contention is unsustainable. We have no hesiliation to hold that there is no question of reading the word otherwise ejusdem generis with other words appearing in the Section. Rule 44 provides that the order convening the Court and the names of the Presiding Officer and the Members 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 officer sitting on the Court and that such objection shall be disposed of in accordance with the provisions of the aforesaid section. Clause (e) provides that When an officer so retires or is not available to serve owing to .any cause, which the court may deem to be sufficient, and there are any officers in waiting detailed as such, the presiding Officer shall appoint one of such officers to fill the vacancy and only if there is no officer in waiting available, the Court shall proceed as required by Rule 38. In the present case there were two officers in the waiting and the Court inducted one of them. We do not see any valid objection to the Constitution of the Court in the manner it has been done. Hence, the first contention fails. 6. The second contention is that the convening officer, namely. In the present case there were two officers in the waiting and the Court inducted one of them. We do not see any valid objection to the Constitution of the Court in the manner it has been done. Hence, the first contention fails. 6. The second contention is that the convening officer, namely. Officiating Commander 21 Sub Area did not apply his mind and appoint all the members of the Court Martial. This argument is based on the only circumstances that while Annexure P/l, the charge-sheet contains his signature, Annexure P/9 the order appointing the Members of the Court Martial does not contain his signature. The Charge Sheet is dated 20.9.1988 and it was signed by the Officiating Commander21 Sub Area on 24.9.1988. Thereafter, the order constituting the Court Martial has been issued on 28.9.1988. It has been signed by one Colonel A for Officiating Commander 21 Sub Area. The fact that he has signed on behalf of the officiating Commander 21 Sub Area itself shows that the order was not passed by the person who signed the order and it has been passed by the officiating Commander. Secondly, the order shows that it was an order by IC-11614 H Brigadier Sur Tej Pal Singh Officiating Commander 21 Sub Area. Thus on the face of it the order shows that it has been issued by the Officiating Commander who is the competent authority and not U by the person who has signed it. If the petitioner has some other material to show that it was not passed by the officiating Commander who is the Complement Authority, then the question could have been gone into but that all the petitioner has relied upon is die signature of another officer for Officiating Commander on Annexure P/9. That circumstance is to be countered by the other circumstance pointed out by us that the Charge-sheet is signed by the officiating Commander and the order has been issued on behalf of the officiating Commander as seen from the order itself. Hence, there is no substance in this contention. 7. Learned counsel for the petitioner draws our attention to the statement in the reply filed by the respondents which reads as follows; "b. The contention of the petitioner is against the law laid down by Honble Supreme Court. It is denied that the Convening Authority had not personally satisfied himself before convening the Court. 7. Learned counsel for the petitioner draws our attention to the statement in the reply filed by the respondents which reads as follows; "b. The contention of the petitioner is against the law laid down by Honble Supreme Court. It is denied that the Convening Authority had not personally satisfied himself before convening the Court. The signing of an order is an administrative action and the same has been signed on behalf of officiating Cdr. 21 Sub Area by Colonel (Administration), who was staff officer to the offg. cdr.. This is in accordance and consonance with the provisions contained in page 404 of MML. Vol. II. It is provided that the convening order can also be signed by the Staff Officer for the convening authority. The Honble Supreme Court has. it its recent judgment, up-held the validity of this practice (1991 CrI. L.J. 1947) para 10 page 1955). The letter dated 16.6.1989 (Annexure P10 to the writ petition) was issued after the convening of GCM in the present case, However, in view of the ruling of Supreme Court, the averment of the petitioner requires no further consideration " 8. It is contended that the relevant records have not been produced by the respondents to show that the order was actually passed by the Competent Authority Reliance is placed upon the two unreported judgments one of Punjab and Haryana High Court and the other of Rajasthan High Court. Before the Punjab and Haryana High Court the case was decided on 5.8.1996 in C.W.P. No. 13587 of 1989 (Surjit Singh v. Union of India & Ors.) A perusal of the judgment shows that the objection was raised by the party concerned m his representation made to the concerned authorities. Certain documents were also placed before the Court to show that the Competent Officer did not apply his mind. In that situation, the Court considered the records and held that the officer concerned did not appoint the persons to form the Court Martial. Consequently, they held the constitution of the Court Martial to be invalid. Similarly in the case before the Rajasthan High Court in Capt. S.Hari Krishnan vs. Union of India\ Ors. (C.W.P. No.934/85, decided on 3.2.1989), the objection was upheld on the basis of the records placed before the Court. Neither of the rulings will help the petition in the present case. 9. Similarly in the case before the Rajasthan High Court in Capt. S.Hari Krishnan vs. Union of India\ Ors. (C.W.P. No.934/85, decided on 3.2.1989), the objection was upheld on the basis of the records placed before the Court. Neither of the rulings will help the petition in the present case. 9. It is to be pointed out that there is no presumption of illegality. The relevant rules are Rules 41 and 42. Under the said Rules on the Court assembling, the order convening the Court shall be laid before it together with the charge sheet and the summary of evidence or a true copy thereof and also the rank, names and corps of the officers appointed to serve en the Court and the Court shall then satisfy itself that it is legally constituted. The Court shall further, if a judge-advocate has been appointed, ascertain that the judge-advocate is duly appointed and is not disqualified for sitting on the Court Martial, if the Court is not satisfied with regard to the compliance of the said report, it shall report its opinion to the convening authority and adjourn for that purpose. Similarly, the Court should be satisfied that the requirements of Rule 41 have been complied with and if it is not satisfied on the above matter, it shall report its opinion to the convening authority and adjourn for that purpose. Hence, when the Court martial has proceeded further with the enquiry after seeing the records placed before it, a presumption will arise that the Court Martial was satisfied that it was legally constituted. Section U4(e)of the Evidence Act will apply in this case as all official acts are presumed to have been done in the proper manner. It is for the petitioner to raise an objection specifically before the concerned Authority and point out that the appointment was not made by the competent authority. According to learned counsel, it is a question of jurisdiction and it can be raised at any time and even under Article 226 of the Constitution of India. But it is forgotten that the jurisdiction depends upon a particular fact and the non- existence of such a fact must be alleged and pleaded. According to learned counsel, it is a question of jurisdiction and it can be raised at any time and even under Article 226 of the Constitution of India. But it is forgotten that the jurisdiction depends upon a particular fact and the non- existence of such a fact must be alleged and pleaded. In the present case no such factual plea that the appointment order was not made by the competent officer was raised before the concerned Court Martial, it cannot be raised before us under Article 226 of the Constitution of India. 10. Even the petitioner has himself placed before us Annexure?-10. It is a letter written by the Additional Directorate General, Discipline and Vigilance to ail the Headquarters of Commands dated 16.6.1989. In paragraphs 2, it is stated-that the power to convene a General Court Martial and Summon General Court Martial has to be exercised by the convening authority alone and cannot be delegated to a staff” officer. At the same time, it is mentioned in that paragraph that as per procedure, in vogue, the convening order except in case of GCM is usually signed by an A Staff Officer after obtaining the approval of the convening authority. It is because of that practice at that time, the order found in Annexure P-9 was signed by Colonel on behalf of the Commanding Officer. The said letter issues definite instructions with regard to the future and it is stated that no staff officer will thereafter sign the convening order or endorsement on the charge sheet for and on behalf of the convening officer or as a staff officer as such. That letter is posterior to Annexure P-9 in the present case. That letter itself shows that Annexure P-9 was signed by another officer as per existing practice. This practice was also taken note of by the Supreme Court in Major G.S.Sodhi v. Union of India 1991 Cri.L.J. 1947. In paragraph 19 the Court has pointed out that the convening order was signed by the staff officer though it was issued by the General Officer Commanding and it was in pursuance of a general authorisation. The Court upheld the validity of the convening order and the relevant reasoning is found in paragraph 18 of that judgment. In such circumstances, there is no merit in the second contention and it is rejected. - 11. The Court upheld the validity of the convening order and the relevant reasoning is found in paragraph 18 of that judgment. In such circumstances, there is no merit in the second contention and it is rejected. - 11. The next contention "relates to the merits of the case. According to learned counsel for the petitioner, there is absolutely no evidence whatever in, this case excepting the two confessional statements given by the petitioner. Which were taken by force on torture Reliance is placed upon a suggestion: made by the respondents when the petitioner was being cross-examined before the Court Martial and the answer given by him which is found in page 57 of the record and in paragraph 3 of the writ petition, it is stated as follow : "Ultimately, the petitioner was detailed at 522 ASC Bn where the petitioner was interrogated with effect from 2 7.1988 to 20.7.88, All sorts of third degree methods were used against the petitioner. He was badly tortured and made to Sign on certain papers. Later, it was learned that a confessional statement had been recorded through the petitioner on the said papers. It would be interesting to notice that the aspect that the petitioner was tortured even was almost conceded by the prosecution when it suggested to the petitioner who appeared as a witness in his caser by suggesting that he was tortured. The relevant portion of page 57 of the record where this answer to suggest is contained, reads as follows:- "It is correct to suggest that I have been tortured". 12. In reply to this part of the petition, it is stated by the respondents as follows;- "The petitioner was attached with 522 1 ASC Bn. (MT). It is denied that the petitioner was forced or made to sign any papers or confessional statement. It is also denied that the statement was extracted forcibly from him. The petitioner made a voluntary confession on 3rd July. 1988 in the presence of one officer and two JCOs copy of which is annexed hereto as Annexure R2. It is denied that the petitioner was tortured. It is also denied that the statement was extracted forcibly from him. The petitioner made a voluntary confession on 3rd July. 1988 in the presence of one officer and two JCOs copy of which is annexed hereto as Annexure R2. It is denied that the petitioner was tortured. In fact, the petitioner is his confessional statement and in the Summary of Evidence recorded by order of the Commandant 9 Field Ordnance Depot and during the course of examination, he had categorically admitted vide para 18, 19 and 28 of the Summon of Evidence that he took ORBAT, i.e. copy No.61 pertaining to order of Battle and Location Statement of Northern Command units from office and handed it over to Hony. (Retd) Naib. Sub. Rattan Chand at his house. The ORBAT containing information in relation to Military affairs of the Government of India which is a document which might directly or indirectly be useful to any enemy. It is significant to mention that the Northern Command boarders with the actual line of Control with Pakistan and on the north eastern border, it touches the" border with China. Thus, the petitioner violated the provisions of Indian Official Secrets Act, 19.23 and Depot Security Orders by divulging official information and making extracts of location of the ORBAT and passed the information to Hony. (Retd) Naib Sab. Rattan Chand who .-was not entitled to receive such information. The petitioner not only violated the provisions of Indian Official Secrets Act. 1923 but also put the National Security of the Country in jeopardy and danger. The contention of the petitioner as per para 3 of his petition that he was shocked to know of his involvement in this prejudicial activity is incorrect. In this connection, his own statement in the presence of Commandant 9 Field Ordnance Depot on the hearing of the charge in terms of Army Order 70/S4 is enclosed as’ Annexure R-3 along with Army Orders which is annexed hereto as Annexure R4. for ready reference where he had accepted that he had committed a mistake. The espionage charge against the petitioner is of a very serious nature and the Army Intelligence Authorities are always to be involved in investigation of such cases. for ready reference where he had accepted that he had committed a mistake. The espionage charge against the petitioner is of a very serious nature and the Army Intelligence Authorities are always to be involved in investigation of such cases. The contention of the petitioner that he had 28 years un- blemished and spotless record is incorrect as he was awarded "Severe Reprimand" under Section 63 of the Army Act while serving at Lucknow Sub Area on 9th July, 1966. The contention of the petitioner that during his interrogation he was badly tortured and/or was made to ^~- sign any document is incorrect and denied. The petitioner made his statement in the presence of three witnesses that he gave the statement of his own accord without any fear, coercion or outside pressure. Copy of the statements annexed already as R-2. The suggestion has been correctly reproduced. However, it may be submitted that in the recording of the suggestion, there appears table some typographic error. On a reading of the evidence in its entirety will show that the intention of the Prosecutor appears to be to make a suggestion to the petitioner that he had not been tortured. Instead of word "correct", the word "incorrect" ought to have been typed as would be evident from the entire cross-examination conducted by the prosecution during the .trial of the petitioner." 13. According to learned counsel for the petitioner, this explanation contained in the reply cannot be accepted because the record shows very clearly that the suggestion made by the cross- examining authority was to the effect that the petitioner was tortured. We are unable to accept this contention of learned counsel for the petitioner. A perusal of the evidence given by the petitioner in the course of enquiry shows that there was no intention on the part of the cross-examining authority to put such a suggestion. It only shows that there was some mistake in recording the statement. Even otherwise it is not a matter, which can be gone into by this Court under Article 226 of the Constitution of India. That is a question, which can be considered only by the fact-finding-authority, which deals with the evidence.. It only shows that there was some mistake in recording the statement. Even otherwise it is not a matter, which can be gone into by this Court under Article 226 of the Constitution of India. That is a question, which can be considered only by the fact-finding-authority, which deals with the evidence.. When the evidence is canvassed before-the Court Martial, it is for that Court of Enquiry to decide whether there is an admission by the authorities concerned in the cause of cross-examination by making such a suggestion. So far as that is concerned, it is not for this Court under Article 226 of the Constitution of India to decide whether there is an admission on the part of the authorities. 14. In any event, the case of the petitioner that there is no evidence is not acceptable at all. It is seen from the records that the confessional statements made by the petitioner were recorded in the presence of three other officials, who had given evidence before the Court Martial. Their evidence shows that there was no suggestion to them that they had also taken part in the alleged torture and at the time when the confessional statement was recorded that there was a torture. Learned counsel contends that the torture was before the recording of the statement and in view of that torture, the petitioner gave such a confessional statement. There is no merit in this contention. Even if there is any torture, it has to be considered only by the Court of fact and not by this Court under Article 226 of the Constitution of India. A perusal of the entire records produced by the respondents as well as the petitioner shows that there was evidence on record to enable the Court Martial to come to a conclusion that the petitioner was guilty. It is not as if the case was based only on the confessional statement made by the petitioner. Hence, this contention also fails and is rejected. 15. Learned counsel for the petitioner contends that the respondents have not passed any order regarding pension payable to the petitioner. Admittedly no representation was made by the petitioner to the respondent claiming pension. It is not as if the case was based only on the confessional statement made by the petitioner. Hence, this contention also fails and is rejected. 15. Learned counsel for the petitioner contends that the respondents have not passed any order regarding pension payable to the petitioner. Admittedly no representation was made by the petitioner to the respondent claiming pension. According to learned counsel, it is a matter of right for the petitioner and it cannot be denied and even if there is an order of dismissal against the petitioner, he is entitled to get pension. Reliance is place upon the following judgments: 16. In Major G.S. Sodhi v. Union of India, JT 1992(4)S.C.337,the Court held that the petitioners therein were entitled to pension, gratuity and provident fund as per rules even though they were removed from service after trial by the Court Martial when there was no infliction of punishment by the Court Martial of forfetiture of pension etc. 17. In Lt. Col. B.S. Ahluwalia and another vs. Union of India & Ors.. 1997 Lab.I.C. 1897, a Full Bench of the Delhi High Court held that the pensionary benefits were available to the petitioner in the absence of an order of forfeiture. It is seen from the report of the case that the representation were made by the petitioner to the authorities and only after the petitioner found that they were not respondent to, he approached the Court. 18. In Brig.A.K. Malholra (Retd.) v. Union of India & Ors., 1997 Lab.I.C. 2005, a similar view is expressed. Here again, the petitioner had made several representations to the authorities concerned and after he found that there was response, he approached the Court. 19. In this case, admittedly, there was no representation whatever to the concerned authorities. Learned counsel for the respondents draws our attention to regulation 113 of the Pension Regulations for the Army. Under that regulation an individual, who is dismissed under the provisions of the Army Act is ineligible for pension or gratuity in respect of all previous service. But, admittedly, there is no order by the concerned authorities holding that the petitioner will not be entitled to any pension. In the reply, it is stated that it is in the discretion of the concerned authority to deny pension to the person, who is found guilty in the enquiry held by the Court Martial. But, admittedly, there is no order by the concerned authorities holding that the petitioner will not be entitled to any pension. In the reply, it is stated that it is in the discretion of the concerned authority to deny pension to the person, who is found guilty in the enquiry held by the Court Martial. But there is no order to show whether the discretion has been exercised by the concerned authority against the petitioner herein. 20. In such circumstances, we leave open the question whether the petitioner is entitled to get pension inspite of the order of dismissal passed against him. It is open to the petitioner to apply to the concerned authorities to make a claim for the pension, which according to him is due to him. The authorities may then consider his representation and pass appropriate orders thereon. 21. In the result, the writ petition fails and it is dismissed. There will be no order as to costs.