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2002 DIGILAW 1716 (RAJ)

Major Sumer Singh Through Lrs. v. Union of India

2002-10-18

ARUN MADAN

body2002
JUDGMENT 1. - The petitioner by way of this writ petition seeks to quash the disciplinary proceedings as well as General Court Martial proceedings, confirmation besides, consequential orders of respondent Army Authority/ Central Government initiated against him. 2. Factual matrix-Sumer Singh (petitioner) jointed Indian Army as Commissioned Officer in December, 1982, in 1948 Armoured Regiment, and being senior most was granted Acting Rank of Major. On 24.2.1984, 40 Seesam trees are alleged to have been cut down by B-SQN of the regiment under the supervision of Squadron, JCO. At that time, petitioner was Squadron Commander of 'A'-SQN. Therefore, he raised objections against felling of the trees because the area of the said regiment was protected from Area/surveillance, which resulted in entering with insubordination talking on the part of JCO who was doing illegal work of removal of the trees, for Commanding Officer Lt. Col. D.S. Dhadwal. This incident had resulted in branding for having made false complaint and with a view to mallacious action Lt.Col.D.S. Dhadwal warned the petitioner for initiation of adverse report (Ann. 1). 3. Albeit various circumstances narrating incidents pre & post to the impugned charge sheet have been averred in the memo of writ petition with a view to establish malice on the part of the respondents Officers, but it has resulted in complexion of the issues. However, I jump over the circumstances relevant for the purposes of deciding the controversy at issue herein. The petitioner was arraigned for trial by General Court Martial on three charges, (i) U/s. 40(c) of the Army Act for using insubordinate language to his superior officer; (ii) U/s. 41(1) of the Army Act for disobeying in such manner as to show wilful defiance of authority, a lawful common given by his superior officer in the execution of his office, and (iii) U/s. 39(a) of the Army Act for absenting himself without leave. The charge sheet (Ann. 5) was signed by Lt.Col.KR Nathan, Officer Commanding 40 Company Army Service Corps (Supply) and was marked to be tried by General Court Martial Station Bareilly signed by A.S. Butalia Col.A for G.O.C. UP Area on 21.11.86. The convening order (Ann 4) constituting the GCM was signed by R.N. Singh Lt.Col.DAAG (Legal) For General Officer Commanding. 4. 5) was signed by Lt.Col.KR Nathan, Officer Commanding 40 Company Army Service Corps (Supply) and was marked to be tried by General Court Martial Station Bareilly signed by A.S. Butalia Col.A for G.O.C. UP Area on 21.11.86. The convening order (Ann 4) constituting the GCM was signed by R.N. Singh Lt.Col.DAAG (Legal) For General Officer Commanding. 4. During GCM proceedings, in view of the refusal to plea to any of the three charges by the petitioner (accused), the Court in terms of Army Rule 52(1) decided to record a plea of not guilty and proceeded with trial. After recording the prosecution and defence evidence, the Court sentenced the petitioner to be cashiered and to suffer rigorous imprisonment for one year by Brajesh Pratap Singh Major Judge Advocate & N.S.S. Krishna Col. Presiding Officer, and this sentence announced on 23rd February, 1987 at Meerut, was confirmed by K. Sundarji General Chief of the Army Staff on 14th June, 1987 as under: "I confirm the finding and sentence of the court but remit the punishment of one year rigorous imprisonment and commute the punishment of cashiering to one of dismissal from the service. Signed at New Delhi this Fourth day of June, 1987." After the aforesaid sentence and confirmation, the petitioner preferred an appeal U/s. 164(2) of the Army Act but it was dismissed by order dated 17.6.89 (Ann. 7). Hence this writ petition. 5. Reply to the writ petition has been filed by the respondents raising a preliminary objection that once the General Court Martial itself concluded on 23.2.1987 duly confirmed on 4.6.1987, but this petition had been filed as late as in the year 1990 and, therefore, it suffers from vice of delay and latches. In reply it has been asserted that the petitioner's complaint had been rejected by the Govt, of India by letter dated 1.9.87 (Ann. R5); that the General Court Martial was convened according to the procedure prescribed by law; that Lt.Col.KR Nathan the Commanding Officer of the petitioner had gone through summary of evidence and was convinced of prima facie offences alleged against the petitioner; that Lt. Gen. Bakshi Gurubux Lal who was the then General Officer Commanding Uttar Pradesh area was the convening authority of the General Court Martial who had applied his mind and examined the record including summary of evidence and was satisfied with the case against the petitioner. 6. Gen. Bakshi Gurubux Lal who was the then General Officer Commanding Uttar Pradesh area was the convening authority of the General Court Martial who had applied his mind and examined the record including summary of evidence and was satisfied with the case against the petitioner. 6. During the course of arguments, Shri Rajendra Prasad Sharma, learned counsel for the petitioner contended that the authority competent to convene General Court Martial was Ltd. Gen. Bakshi G.B. Lal, (GOC UP Area) but the GCM was neither convened by him (Lt. Gen.) nor composition of Court was decided by him whereas the convening order was passed by Lt. Col. R.N. Singh who was DAAG (Legal) as is referred to in Annexure 4 to the writ petition, and thereby the convening order having been passed by an incompetent authority was without jurisdiction being violative of Section 109 of the Army Act read with Rs. 37 of the Army Rules. 7. It is the case on behalf of the petitioner that the respondent filed an affidavit of the GOC UP Area (Ann. R7), which itself shows that the competent authority did not apply its mind to relevant record as is required under Rule 37, but only a minute sheet dated 1.12.86 was placed before him (GOC UP Area) and it stood established that the GOC did not pass any written order for trying the petitioner by General Court Martial, inasmuch as the competent authority did not decide as a composition of court martial as is evident from the affidavit which did not state as that the GOC decided the members of the Court martial, while contrarily it appears from convening order (Ann. 4) that such an order was passed on 1.12.1986 whereas the GOC simply approved note sheet much thereafter i.e. on 11th December, 1986. 8. Shri Rajendra Prasad Sharma on behalf of the petitioner relied upon the decisions in Union of India v. Harish Chandra Goswami ( AIR 1999 SC 1940 ) , and Capt. S. Hari Kishnan v. Union of India (DB Civil Writ Petition No. 934/85 decided by this Court on 3.2.89) . 9. Shri Bhanwar Bagri learned counsel for the respondents, per contra, contended that judicial review in Court martial proceedings is not permissible where substantial compliance of statutory provisions have been made and all necessary evidence had been taken on record besides following the principles of natural justice. 9. Shri Bhanwar Bagri learned counsel for the respondents, per contra, contended that judicial review in Court martial proceedings is not permissible where substantial compliance of statutory provisions have been made and all necessary evidence had been taken on record besides following the principles of natural justice. He cited a decision in Union of India v. Himmat Singh Chahar ( AIR 1999 SC 1980 ) . 10. Next contention urged on behalf of the respondent is that mere non-compliance of provisions of the Army Act or Rules thereunder will not give any benefit to the delinquent unless his right has been substantially prejudiced, inasmuch as R. 37(i) of the Army Rules, was complied with because case of the petitioner was duly sent to Army Judicial Service Department (Dy. JAG HQ Central Command) who examined all evidence on record and evaluated it in his three respective reports with a suggested charge sheet. Moreover, according to Shri Bagri, the GOC, UP Area is a superior authority in Army establishment, which deals with matters of service, station, operational & discipline besides other matters and they are assisted by various subordinate officers being experts in such different matters, such as Deputy Assistant Adjudant General (DAAG) and that being so, Lt.Col. R.N. Singh, DAAG Legal UP Area put up the minute sheet before the convening authority seeking his approval, and the convening authority Major Gen. G.B. Lal Bakshi in this regard has submitted his affidavit, therefore there is no unfair play much-less non-compliance of Army Rules. 11. Shri Bagri further contended that the GOC Up Area holding the rank of Major General being equivalent to GOC Division was vested with statutory powers to issue warrant to convene and confirm the GCM. My attention was drawn to Manual of Military Law Vol. II and instructions Sections T thereof which contemplates that the convening order is signed by him or by a staff officer authorised by custom and usage of the service to sign his orders or by the staff officer 'as such', and hence according to Shri Bagri, provisions of Section 109 of the Army Act were complied with. II and instructions Sections T thereof which contemplates that the convening order is signed by him or by a staff officer authorised by custom and usage of the service to sign his orders or by the staff officer 'as such', and hence according to Shri Bagri, provisions of Section 109 of the Army Act were complied with. That apart, according to provision of R. 51 of the Army Rules, the petitioner ought to have objected as to the jurisdiction before the trial which the petitioner failed to do so during trial, as R. 51 provides a remedy to the delinquent before the Court and give protection on any such non compliance at right stage. 12. Lastly Shri Bagri contended that unless an appeal is filed properly as provided under the statutory rules, this writ petition is not maintainable, inasmuch as this writ petition having been filed after a lapse of more than three of the impugned orders, is totally time barred and on this ground alone, this petition deserves to be dismissed. 13. At the threshold I must hasten to say that un-disputably, the defence personnel serving either in Army, or Navy or Air force when commit any offence are dealt with by special provisions contained in the Army Act or the Navy Act or the Air force Act as the case may be and not by the normal procedure code. The Army Act is a complete code by itself and prescribes the procedure to be followed in case it is decided that an officer should be tried by Court martial and that apart, the Act also provides sufficient safeguard by way of further appeal to the Chief of the Staff and then ultimately to the Union Government. Thus once the entire procedure is provided in the Act, itself, besides further consideration by the Chief of Army Staff and then by the Union Government then ordinarily a finality is attached to the findings arrived at by the competent authority in the Court Martial proceeding. 14. Thus once the entire procedure is provided in the Act, itself, besides further consideration by the Chief of Army Staff and then by the Union Government then ordinarily a finality is attached to the findings arrived at by the competent authority in the Court Martial proceeding. 14. Be that as it may, the High Court is entitled to exercise its power of judicial review by invoking jurisdiction U/Art. 226 but such a power is fettered to a limited extent to find out whether there has been infraction of any mandatory provisions of the Army Act prescribing the procedure resulting into causing gross miscarriage of justice or to find out whether there has been violation of principles of natural justice vitiating the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Army Act. I lent support from the dictum of law laid down by the Apex Court in its decision in Union of India v. Himmat Singh Chahar (supra) wherein it held that such powers of judicial review are not that of an appellate authority permitting the High Court to re-appreciate the evidence with a view to arrive at a conclusion that the evidence is insufficient for such conclusion of the competent authority in Court Martial proceedings. With these fetters to the exercise of power of judicial review against the conclusions of the competent authority in a Court Martial proceedings, and applying them, I am loath to over-step this Court jurisdiction in trying to re-appreciate the evidence on record so as to conclude that the material on record is insufficient or that the evidence on record is not credible enough to give a finding of guilt of the petitioner of the impugned charges. If two views are possible the Court shall not interfere by substituting its own satisfaction or opinion for satisfaction or opinion of the authority exercising the power. 15. Hence in my opinion, it is not essential to consider in detail the arguments of both the sides relating to the judicial review of the entire material on record, except the contentions as to the infraction of relevant provisions of the Act & Rules there under, and the principles of natural justice, referred to during the course of hearing. 16. Hence in my opinion, it is not essential to consider in detail the arguments of both the sides relating to the judicial review of the entire material on record, except the contentions as to the infraction of relevant provisions of the Act & Rules there under, and the principles of natural justice, referred to during the course of hearing. 16. Of course there is no dispute that U/r. 37 of the Army Rules, the Commanding Officer has to apply his mind to satisfy that the charge to be tried by the Court are for offences within in meaning of the Act and that evidence justifies the trial of those charges, and further that the Commanding Officer has also to satisfy himself that the case is a proper one to be tried by the kind of Court martial which he proposes to convene. 17. Chapter X of the Army Act deals with Courts Martial. Section 108 provides kinds of courts-martial and under which there are four kinds of courts-martial namely (a) general courts-martial; (b) district courts-martial; (c) summary general courts-martial; and (d) summary courts-martial. Power to convene a general court martial is envisaged in Section 109, under which a general court-martial may be convened by the Central Government or the Chief of the Army Staff or by any officer empowered in this behalf by warrant of the Chief of the Army staff. Composition of general court-martial is contemplated in Section 113, as per which, a general court martial should consist of not less than five officers-each of whom has held a commission for not less than three whole years and of whom not less than four are of a rank not below that of captain. U/s. 118 of the Army Act, a general or summary general court martial shall have power to try any person subject to this Act for any offence punishable therein and to pass any sentence authorised thereby. 18. R. 31 of the Army Rules provides the authority to put signature of charge sheet and as per which the charge sheet shall be signed by the commanding officer of the accused. 19. In para 11 of the reply to writ petition, the respondents specifically averred that Lt. 18. R. 31 of the Army Rules provides the authority to put signature of charge sheet and as per which the charge sheet shall be signed by the commanding officer of the accused. 19. In para 11 of the reply to writ petition, the respondents specifically averred that Lt. General Bakshi Gurbux Lal who was the then General Officer Commanding Uttar Pradesh Area was the convening authority of the General Court Martial and who has applied his mind by examining the record including summary of the evidence and was satisfied with the case against the petitioner that he was fit to be tried by the General Court Martial and with a view to substantiate the same, affidavits (Ann. R 6 & R7) of Lt. Col. KR Nathan & Lt. Gen. Bakshi Gurubuxlal have been produced.In reply the respondents have averred that Lt.Col. KR Nathan fully applied his mind to the summary of evidence and then signed the charge sheet for trial of the petitioner by General Court Martial. Lt. Col K.R. Nathani in his affidavit stated that he had personally carried out promulgation of GCM proceedings in respect of the petitioner in the presence of two other officers on 16 June, 87 at 1330 hrs in accordance with AR 71 read with para 472 of Regulations for the Army (Revised Edn. 1987), the orders of COAS, the confirming authority that one year R1 and cashiering was mitigated to 'dismissal' was conveyed to Capt. Sumer Singh. 20. In affidavit (Ann. R7) Lt. Gen. Bakshi GL stated that he had personally perused the minute sheet No. 2 dated 01 Dec 86 put up to him by Col. Butalia, the then Col. "A"of UP Area and after having applied his mind and having satisfied that it is a fit case to be tried by General Court Martial, he had verbally issued instructions on the case that the accused (petitioner) is to be tried by the General Court Martial. In rejoinder the petitioner has stated that contents of para 11 are emphatically denied and Annexures R5, R6, & R7 are also denied. 21. The record of the GCM in respect of the petitioner was called and produced for perusal of this Court. A perusal of Note sheet No. 1 shows that RN Singh Lt. In rejoinder the petitioner has stated that contents of para 11 are emphatically denied and Annexures R5, R6, & R7 are also denied. 21. The record of the GCM in respect of the petitioner was called and produced for perusal of this Court. A perusal of Note sheet No. 1 shows that RN Singh Lt. Col (DAAG(L) submitted the Note sheet along-with file for information of the GOC on 13 November, 86 and on 14.11 86, Col. "A" put endorsement, "GOC has read the brief on return from A/L. This case is also part of that brief". Note sheet No. 2 of Case No. 180105/688/A1 shows that R.N. Singh Lt. Col DAAG (L) endorsed note on 01 Dec, 86, "member for the composition of Court have been provided by HQ 22 Inf Div and HQ Meerut Sub Area which is placed opposite for approval of GOC in order to issue Convening Order", whereupon GOC approved it. 22. Annexure 4 is form of order for the assembly of a General Court Martial under the Army Act (its office copy is also found on the file produced by the respondent p. 214) shows that it was though signed by the R.N. Singh but for General Officer Commanding, inasmuch as was issued under the order by IC 8111M Major General Bakshi Gurbaksh Lal, GOC, UP Area, as is evident from the preface of order dated 01 December, 1986 issued in lieu of IAFD-916. It is substantiated and supported by affidavit of Maj. Gen. Bakshi G.B. Lal GOC. In the form for convening the GCM annexed to the Rules, there is endorsement to the effect that the convening order must be signed by the officer personally or for him by a Staff Officer. Thus viewed, there is no noticeable defect in the proceedings for convening the GCM because the convening order is ultimately deemed to have been signed by a superior officer and not the officer who investigated the case. That apart, affidavit of Major General Bakshi G.B. Lal proves that he had personally applied his mind and having been satisfied that it is a fit case to be tried by General Court Martial, he had verbally issued instructions on the case that the accused (petitioner) is to be tried by the General Court Martial. That apart, affidavit of Major General Bakshi G.B. Lal proves that he had personally applied his mind and having been satisfied that it is a fit case to be tried by General Court Martial, he had verbally issued instructions on the case that the accused (petitioner) is to be tried by the General Court Martial. The plain language of Section 109 shows that convening order can be passed by any officer and once an officer who has been empowered by a warrant of the Chief of the Army Staff to convene GCM has issued the order, the requirement of Section 109 stands satisfied. Thus the order for convening GCM has been passed in case of the petitioner by a competent authority and Lt. Col. RN Singh was fully entitled to sign it for GOC in accordance with instructions given in Appendix III of the Army Rules which provides for signing the convening order by a staff officer also. 23. Moreover, Annexure 6 is letter dated 28.9.88 containing complete duplicate set of GCM proceedings (pages 1 to 177 along-with Exs. K to XX) with a copy of summary of evidence and additional summary of evidence. As per form of proceedings for a GCM under the Army Act (in lieu of IAFD- 906) it shows that proceedings of a General Court Martial assembled at Meerut on 5th day of December, 1986 by order of IC 8111M Maj Gen Bakshi Gurbaksh Lal General Officer Commanding the Uttar Pradesh Area dated 01 December, 1986, from which it is clear that when the order convening the Court was read over, to which no objection was raised by the petitioner. As propounded by the Apex Court in Major G.S. Sodhi v. Union of India ( 1991(2) SCC 382 ) , the procedure is meant to further the ends of justice and not to frustrate the same; it is not each and every kind of defect preceding the trial that can affect the trial as such, because 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 and only in case of any violation of mandatory rules, the necessary benefit thereof should be given to the delinquent. In view of the decision of the Apex Court in Major GS Sodhi v. Union of India (supra), the DB decision of this Court in Capt. S. Hari Krishnan v. Union of India (supra) does not help in any manner to the present petitioner. Similarly, allegations of malafides and bias having regard to averments in counter affidavit are not acceptable and in any event, this Court cannot make a roving enquiry into the allegations and counter ones in the writ petition and that apart, the allegations were against the officers who had conducted only preliminary enquiry and therefore, the court martial proceedings were not affected. 24. In the case at hand, foremost contentions were only as certain alleged lapses in constituting court of inquiry, recording of summary of evidence, issuance of the charge sheet, convening order and/or that all these orders were not signed by a duly authorised officer. Even if it is assumed that there is some substance in these submissions, they would not affect the trial as such in which the petitioners duly participated. The question is one of prejudice but in the instant case all details were mentioned in the charge sheet and the trial went on and the petitioner duly participated in the trial. Thus, in absence of illegality or irregularity that may vitiate the trial or any prejudice having been caused to the accused, this Court would not make a roving investigation into the matter. I do not find any illegalities or material irregularities in the conduct of the trial so as to hold the trial and GCM proceedings vitiated. 25. Resultantly, this writ petition is dismissed. No order as to costs.Writ Petition Dismissed. *******