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2002 DIGILAW 73 (GAU)

Raj Kumar Sharma v. Union of India

2002-02-08

AMITAVA ROY, R.S.MONGIA

body2002
R.S. MONGIA, J. — The appellant writ petitioner has been serving in the Army since 1983. In November, 1998 he was transferred from Bangalore to Dimapur on promotion as Lt. Colonel. Facts which emerges now, are that one Capt. D.S. Sisodia is alleged to have sent a complaint against the writ petitioner appellant to the authorities on 02.09.2000 which reads as under - "Bangalore (Karnataka) 02 Sept. 2000 0004/DS/01 CDA(O) Golibar Maidan, Pune-411001. False Claim for transportation of car on transfer Lt. Col. R.K. Sharma in Nov. 98 1. It has recently come to my knowledge that IC-45154 Lt. Col. Raj Kumar Sharma preferred a false claim of Rs. 18,000/- for transportation of his car from Bangalore to Dimapur (Nagaland) and of the claim. Actually he did not take any car to Dimapur on posting, because he had sold his old Ford Car to me before going on posting I have also been cheated by him in this car. I paid him Rs. 1.6 lakh for the car, which was not even worth Rs.80,000/-. I believe he has been taking W.T.S. and claims of ticket for his mother, who never joined him. 2. Matter is submitted for your information and investigation. Sd/- (Capt D.S. Sisodia) Copy to GOC HQ 101 Area, C/O 99 APO." 2. On the basis of this complaint a preliminary investigation was carried out by one Col. R.K. Singh, who submitted his report holding that there was a prima facie case against the appellant writ petitioner in so far as the allegations regarding the claim of Rs. 18,000/- as transportation charge of his car and also regarding misuse of the warrants. However, regarding selling the car at a higher price, it was felt that same was a personal matter which needed no consideration. On the basis of the preliminary investigation a Convening Order of Court of Enquiry was issued by the Army authorities which lead the appellant as writ petitioner to challenge the same by way of W.P.(C) No. 193(K)/2000. The same has been dismissed by the learned Single Judge on 14.09.2001. Hence, the present appeal. 3. Learned counsel for the appellant has referred to the Army Order 4/2000 pertaining to investigation and disposal of general complaints. He particularly referred to Paragraphs 2 and 3 of the said Order, which are in the following terms "2. The same has been dismissed by the learned Single Judge on 14.09.2001. Hence, the present appeal. 3. Learned counsel for the appellant has referred to the Army Order 4/2000 pertaining to investigation and disposal of general complaints. He particularly referred to Paragraphs 2 and 3 of the said Order, which are in the following terms "2. Complaints other than statutory/non-statutory complaints made under the provisions of Para 364 of the Regulations for the Army (Revised Edition 1987) are termed as general complaints. General complaints are of the following three types:- (a) Anonymous complaints - where identity of the complainant is not given; (b) Pseudonymous complaints - where identity of the complainant is fictitious; (c) Signed complaints - where identity of the complainant is known. 3. No action will be taken on anonymous/ pseudonymous complaints. These will be filed after perusal by the commanders concerned." 4. On the basis of the aforesaid paragraphs of the Army order the learned counsel for the appellant argued that the complaint in question was pseudonymous and therefore under Paragraph 3 of the Army Order (supra) no action is called for and the said complaint had to be filed after perusal of the Commanders. Without going into the point whether the complaint is pseudonymous or not, we assume this complaint to be so. Our reading of paragraph 3 of the Army Order is that if there are no verifiable facts on the records of the authorities an anonymous or pseudonymous complaint may be filed, but if it is otherwise i.e. the facts mentioned in the complaint even without any name of the complainant, are verifiable from the records and other facts in possession of the authorities, there cannot be any bar to further/ investigate into the matter and if on further investigation it is prima facie found that the facts mentioned in the complaint seem to be correct naturally further action in accordance with law would follow. Otherwise, also reading of paragraph 3 where it is mentioned "This will be filed after perusal by the commanders concerned" would make it clear that concerned Commanders are to pursue such a complaint and if it is found that no action whatsoever is called for, mutually it will be filed. Otherwise there is no purpose or idea in providing that pseudonymous or anonymous complaints would be perused by the Commanders before they are filed. Otherwise there is no purpose or idea in providing that pseudonymous or anonymous complaints would be perused by the Commanders before they are filed. After all, perusal of the complaints by the Commanders is for what purpose? The purpose is, whether the facts or allegations mentioned in the complaints are verifiable from the records or other materials in possession of the authorities. If on such verification it is found that prima facie there is something in what is being alleged, then naturally further probe would be ordered. The purpose is to come to a prima facie conclusion whether there is some material with the department to order further probe. 5. Learned counsel for the appellant argued that the learned Single Judge's judgment is based on the affidavit which was filed on behalf of the official respondents in the writ petition that the writ petitioner, now appellant, had deposited back the amount of transportation charges as well as the amount involved in the warrants, has no force. The learned Judge has just noticed this as a fact. The case of the official respondents is that the fact that die writ petitioner had deposited back the money of the transportation charges and of the warrants is a pointer towards the guilt of the writ petitioner, now appellant. It is made clear that we are not opining in one way or the other on this aspect. We leave it to the authorities to deal with the same. Faced with the situation, learned counsel for the appellant argued that mere reading of the complaint does not disclose any misconduct or any guilt on the part of the appellant writ petitioner. It is by now well settled that the charges in departmental proceedings or in criminal proceedings or an FIR can only be quashed, if on reading of the charges of the FIR without reference to any plausible defence the misconduct or offence is not made out, otherwise the charge of FIR would not be quashed. In the present case reading of the complaint would go to show that if it is proved, the misconduct would be made out. 6. For the foregoing reasons, we do not find any merit in this appeal. We uphold the judgment of the learned Single Judge and dismiss the appeal. There will be no order as to costs.