Research › Search › Judgment

Delhi High Court · body

2002 DIGILAW 1052 (DEL)

S. P. S. RAJKUMAR v. UNION OF INDIA

2002-08-05

A.K.SIKRI, S.B.SINHA

body2002
A. K. SIKRI ( 1 ) THE petitioner in the present case who was, at the material time, working as Group Captain with Indian Air Force has filed this Writ Petition with the following prayers:- A. issue a writ, order of direction in. the nature of certiorari to quash: (i) Sections 65 and 159 of. Air Force Act being ultra vires ot Articles 14, 16 and 21 of the Constitution of India. (ii) convening order dated 12. 01. 2000. (iv) finding and sentence dated 13. 3. 2000. (v) Revision Order passed by respondent no. 3 dated 3. 5. 2000. (vi) Revision Order dated 13. 5. 2000 passed by G. C. M. in revision. (vi) confirmation and order in statutory appeal dated 7. 9. 2000 passed by respondent no. 2. (vii) show cause notice dated 5. 11. 2000 for forfeiting the pensionary benefits. b. issue a writ, order of direction in the nature of mandamus commanding the respondents to reinstate the petitioner in service with all consequential benefits. c. issue a writ, order of direction in the nature of Mandamus commanding the respondent no. 1 to initiate appropriate action against the responsible officers i. e. respondents 2 to 7 and other officers who joined hands together with them in the process of illegal dismissal of the petitioner, under Sec. 47 of Air Force Act. d. award exemplary cost of present proceedings to the petitioner and against the respondents. e. pass such other order or orders which this Hon ble Court may deem fit and proper in the facts and circumstances of the case. ( 2 ) ALTHOUGH the vires of certain Sections of the Air Force Act, 1950 (hereinafter referred to as Act, for short) is challenged, this relief was not pressed at the time of arguments. Learned counsel confined his challenge to the sentence of dismissal imposed upon the petitioner after conducting General Court Martial (GCM) holding him guilty of certain charges levelled against him. ( 3 ) IN fact it may be noted at this stage itself, the main ground of challenge was that the judge Advocate who conducted the proceedings on behalf of the Air Force Authorities before the GCM was lower in rank than the petitioner and therefore the entire proceedings were illegal and contrary to Sections 65 and 159 of the Act. His submission was that this issue is no more res Integra and is squarely covered by recent decision of the Apex Court in the matter of Union of India and another versus Chiranjit S. Gill reported in JT 2000 (5) SC 135. This was the sole ground argued before us and in that view of the matter it may not be necessary to state the facts of the case in great detail. ( 4 ) HOWEVER those facts which are absolutely essential for determining the issue in question may have to be stated:- ( 5 ) THE petitioner joined Air force as a Commissioned Officer in Logistic Branch in the year 1970 and got various promotions during his career. He rose to the rank of Group Captain to which post he was promoted in the year 1998. A Court. of Enquiry was ordered to investigate the irregularities committed in Logistic Section on the basis of an anonymous letter. In the said Court of Enquiry, respondent no. 4, S. L. O. respondent no. 5, petitioner and four others were held blame worthy for certain supervisory lapses in effecting local purchases of the unit. It is the allegation of the petitioner that this Court of Enquiry was motivated and was at the instance of the respondent no. 3 who was inimical to the petitioner and had nurtured a grudge against him for the reasons stated in detail in the Writ Petition which, it may not be necessary to advert to. His submission however was that he had not committed any such irregularities. All purchases above Rs. 5000/- were processed by the Central Local Purchase committee consisting of a Chairman, a Wing Commander of Technical Branch, a Sqdn leader of Accounts Branch, one Sqdn. Leader of Technical Branch from the user side and one Local Purchase Officer from the Logistic Section i. e. respondent no. 5. After the recommendations of the said Committee, the purchases/repairs were approved by competent financial Authority i. e. the respondent no. 4. The petitioner had no power or authority to interfere in the process except to forward the papers from one end to another end. 5. After the recommendations of the said Committee, the purchases/repairs were approved by competent financial Authority i. e. the respondent no. 4. The petitioner had no power or authority to interfere in the process except to forward the papers from one end to another end. The c. F. A. had more than 32 years of service experience besides having passed N. D. C. ( 6 ) BE as it may, on the basis of the Court of Enquiry followed by summary of evidence only the petitioner was charge-sheeted and tried by GCM, the convening Order for which was issued by the respondent no. 3 and for this purpose one Sq. Ldr. Hari Prasad was appointed by the respondent no. 3 as Judge Advocate for the Court Martial who was much lower in rank than the petitioner. Even one of the Members of the Court Martial was junior to the petitioner. The petitioner as a result of the said GCM was held guilty of charges under Section 65 of the Army Act and by Order dated 13th July, 2000 the petitioner was awarded the following sentence:- A) Forfeiture of seniority of rank of two years and b) Severe reprimand subject to confirmation by the respondent no. 3. Respondent no. 3 however, used his power under Section 159 of the Act and issued revision order directing G. C. M. for Reviewing Sentence only. The petitioner was not supplied with the copies of the GCM proceedings although he had been demanding the same in the meantime. The GCM reviewed the sentence and on 13th May, 2001 announced the sentence of "to be dismissed from service". According to the petitioner, the GCM gave no reason of any kind for enhancing the punishment for minor offences u/s. 65 invoked as no charge was proved against the petitioner contrary to law laid down by the Supreme Court in the case of Lt. Col. P. P. S. Bedi Vs. Union of India reported in 1982 (3) SCC 140 . ( 7 ) THE petitioner thereafter filed petition under Section 161 of the Act challenging the convening of GCM and the resultant punishment on various grounds and stated that the same was in violation of Rules 43, 45, 49, 110, 111 and 46 of the Air Force Rules, 1969 (hereinafter referred to as the Rules, for short ). ( 7 ) THE petitioner thereafter filed petition under Section 161 of the Act challenging the convening of GCM and the resultant punishment on various grounds and stated that the same was in violation of Rules 43, 45, 49, 110, 111 and 46 of the Air Force Rules, 1969 (hereinafter referred to as the Rules, for short ). Another Petition was filed under Section 161 (1) of the Act on 30th June, 2000. The said Appeal was disposed of by Order dated 7th september, 2000 by dismissing the same. The petitioner preferred statutory Appeal under section 161 (2) of the Act. Thereafter, he received show cause notice dated 5th November, 2000 and reply dated 22nd January, 2001. However, as the Statutory Appeal was not disposed of inspite of giving reminders he preferred the present Petition in August, 2001 ( 8 ) AS already mentioned above, although number of contentions have been raised in this Writ Petition challenging the impugned Orders some of which are reflected in the facts noted above, at the time of arguments the basic contention of the petitioner was based on the judgement in the case of Chiranjit S. Gill (supra) and the GCM proceedings were challenged on the ground that the Judge Advocate appointed was not qualified as he was lower in rank than the petitioner herein. ( 9 ) CHIRANJIT S. Gill (supra) was under the Army Act, 1950. The aforesaid issue squarely fell for consideration before the Supreme Court in the aforesaid case. After referring to various provisions of the Army Act, 1950 and Army Rules 1954 the Supreme Court opined that the Judge Advocate should not be lower in rank than the officer against whom Court martial proceedings are initiated. In this respect the Court noticed that the Court Martial proceedings are convened in terms of Rule 3 of the Army Rules. Further Rule 39 stipulates ineligibility and disqualification by officers for Court Martial. The Court noticed provisions of rule 40 providing for composition of GCM, inter alia, stipulating that:- (2) The members of a court-martial for the trial of an officer shall be of a rank not lower than that of the officer unless, in the opinion of the convening officer, officers of such rank are not (having due regard to the exigencies of the public service) available. Such opinion shall be recorded in the convening order. Such opinion shall be recorded in the convening order. ( 10 ) THEREAFTER referring to various other provisions of the Army Rules the Court examined the role of Judge Advocate by pointing out:- "it is true that Judge-Advocate theoretically performs no function as a judge but it is equally true that he is an effective officer of the court conducting the case against the accused under the Act. It is his duty to inform the court of any defect or irregularity in the charge and, in the constitution of the Court or in the proceedings. The quality of the advise tendered by the Judge-Advocate is very crucial in a trial conducted under the Act. With the role assigned to him a Judge-Advocate is in a position to sway the minds of the members 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 persons. It is to be remembered that the court-martials are not part of the judicial 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 Vs. Union of India (JT 1990 (3) SC 630 = 1990 (4) SCC 594 ) wherein it was held: "from the provisions referred to above it is evident that the Judge-Advocate plays an important 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 findings, 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 finding by word of mouth on each charge separately and the finding on each charge is to be recorded simply as a finding of "guilty" or of "not guilty" It is also required that the sentence should be announced forth 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. 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 requirement in other provisions relating to recording of findings and sentence-Rule 66 (1) proceedings 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 specific provision for recording of reasons for the recommendation to mercy. The said provisions thus negative a requirement to give reasons for its finding and sentence by the Court-martial makes a recommendation to mercy. In our opinion, therefore, at the stage of recording of findings and sentence the court-martial is not required to record its reasons and at that stage reasons are only required for the recommendation to mercy if the court- martial makes such a recommendation. AS regards confirmation of the findings and sentence of the court-martial it may be mentioned that Section 1 54 of the Act lays down that no finding or sentence of a general, district or summary general, court-martial shall be valid except so far as it may be confirmed as provided by the Act. Section 158 lays down that the confirming authority may while confirming the sentence of a court-martial mitigate or remit the punishment thereby awarded, or commute that punishment to any punishment lower in the scale laid down in Section 71. Section 160 empowers the confirming authority to revise the finding or sentence of the court-martial and in Sub-section (1) of Section 160 it is provided that on such revision, the court, if so directed by the confirming authority, may take additional evidence. The confirmation of the finding and sentence is not required in respect of summary court-martial and in Section 162 it is provided that the proceedings of every summary court-martial shall without delay be forwarded to the officer commanding the division brigade within which the trial was held or to the prescribed officer; and such officer or the Chief of the Army Staff or any officer empowered in this behalf may, for reasons based on the merits of the case, but not merely on technical grounds, set aside the proceedings 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 submittedby the judge-advocate at the trial for review to the deputy or assistant judge-advocate general of the command who shall then forward it to the confirming officers and in case of district court-martial it is provided that the proceedings should be sent by the presiding officer, who must, in all cases, where the sentence is dismissal or above, seek advice of the deputy or assistant judge-advocate general of the command before confirmation. Rule 70 lays down that upon receiving the proceedings of a general or district court-martial, the confirming authority may confirm or refuse confirmation or reserve confirmation for superior authority, and the confirmation, non-confirmation or reservation shall be entered in and form part of the proceedings. Rule 71 lays down that the charge, finding and sentence, and any recommendation to mercy shall, together-with the confirmation, non-confirmation of the proceedings, be promulgated in such manner as the confirming authority may direct, and, if no direction is given, according to custom of the service and until promulgation has been effected, confirmation is not complete and the finding and sentence shall not be held to have been confirmed until they have been promulgated. " ( 11 ) KEEPING in view the aforesaid important functions being performed by Judge-Advocate the Supreme Court, on interpretation of the aforesaid Rules, came to the conclusion that he should be a person not below the rank of the official against whom Court Martial proceedings have been initiated, and the provisions regarding composition of GCM would apply in the case of Judge-Advocate as well. He would, therefore, not be a "fit person to be appointed as Judge-Advocate in case he is lower in rank than the charged official and such an invalidity in appointing an unfit person as Judge-Advocate was not curable under Rule 103 of the Army Rules. " ( 12 ) MR. Kaushik, learned counsel for the petitioner submitted that provisions of Rules 49 and 110 of the Rules are in para materia with the Army Rules and therefore the ratio of Chiranjit S. Gill (supra) applied to the present on all fours. ( 13 ) IN fact this position in law was not disputed by Ms. Jyoti Singh, learned counsel for the respondent. ( 13 ) IN fact this position in law was not disputed by Ms. Jyoti Singh, learned counsel for the respondent. However, the only argument of the respondent was that the Supreme Court in chiranjit S. Gili (supra) case had categorically remarked that the application of the principle pronounced in the aforesaid case would be prospective and therefore the proceedings which had already been conducted and completed could not be challenged on this ground. To buttress this submission of hers, she placed reliance on para 25 of the judgement reading as under:- "in view of this position of law the judgments rendered by the court-martial which have attained finality 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 adjudication 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 incorporate the plea regarding the ineligibility and disqualification of Judge-Advocate on the ground of appointment being contrary to the mandate of Rule 40 (2 ). This would also not debar the Central government or the appropriate authority in passing fresh orders regarding appointment of the fit persons as Judge-Advocate in pending court-martials, if so required. " ( 14 ) THE position in para 25 however would not help the respondents. It is very categorically stated in the aforesaid para that only those proceedings which had attained finality would not be permitted to be reopened on the basis of law laid down in the aforesaid judgement. At the same time the Supreme Court was categorical in clarifying that the proceedings of any Court Martial, if already challenged on this ground and are pending adjudication in any Court in the country would, however be not governed by the principle of defacto doctrine . Thus the manifest intention of the Supreme Court was that only those proceedings which had attained finality would not be allowed to be reopened and even in the pending proceedings if such a contention had not been raised, amendment would not be allowed to incorporate the plea regarding ineligibility and disqualification of Judge-Advocate on this ground. Thus the manifest intention of the Supreme Court was that only those proceedings which had attained finality would not be allowed to be reopened and even in the pending proceedings if such a contention had not been raised, amendment would not be allowed to incorporate the plea regarding ineligibility and disqualification of Judge-Advocate on this ground. ( 15 ) HOWEVER, when we examine the facts of the present case, we find that it is not a case where the proceedings had attained finality. Admittedly, the petition is pending. It is also not a case where the contention regarding disqualification of Judge-Advocate is not raised. The petitioner in this Writ Petition has specifically raised this issue and also taken support of the aforesaid judgment of the Supreme Court in the case of Chiranjit S. Gill (supra) by specifically referring to it in the Petition. In fact the Court-Martial proceedings in the present case were pending when the Supreme Court, pronounced the judgment in Chiranjit S. Gill (supra) on 24th April, 2000 and the impugned Order is passed on 13th May, 2001. Therefore, it is not a case where the proceedings which had attained finality are sought to be reopened. Rather the aforesaid judgment is sought to be applied prospectively only. ( 16 ) THE result of the aforesaid discussion is that the impugned Order cannot be sustained as the entire GCM proceedings were bad in law on account of appointment of Judge-Advocate by the respondent no. 3 who was not qualified since he held a rank lower than that of the petitioner facing trial. This Writ Petition is accordingly allowed. Rule is made absolute and impugned Order is set aside. However, this judgment will not preclude the respondent from convening court-martial proceedings in accordance with law under the relevant provisions of the Act and the Rules. There shall be no order as to costs.