Landmark Indian Military Cases: Apex Court Judgements & Some Relevant Common Law Cases

Ed: Chandra Nath

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Copyright 2011 by Chandra Nath

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Contents
1 Major E. G. Barsay v. The State Of Bombay 1961 2 Ram Sarup v. The Union Of India 1963 3 Union of India v. Maj S K Sharma 1987 4 S.K. Rao v. Union Of India 1967 5 Delhi Police Est v. Lt Col S K Loraiya 1972 6 Capt Harish Uppal v. Union Of India 1972 7 O K Achudan Nair v. Union of India 1975 8 Maj Gen D.S. Nakara v. Union Of India 1982 9 Viswan v. Union Of India 1983 1 35 47 61 69 75 85 89 129

10 Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985159 11 Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy Choudhury 1986 173 12 Union of India v. Maj S K Sharma 1987 13 Vidya Prakash v. Union Of India 1988 14 Lt Col K D Gupta v. Unon of India 1988 15 Lt Col K.D. Gupta v. Union of India 1989 185 199 207 215

vi 16 S N Mukherjee v. Union Of India 1990 17 Ex-Hav Ratan Singh v. Union of India 1991 18 P Chandramouli v. Union Of India 1994 19 Union Of India v. R.K.L.D. Azad 1995

CONTENTS 223 251 255 261

20 Union Of India v. Major General Madan Lal Yadav 1996 265 21 Major Kadha Krishan v. Union Of India 1996 22 Major R.S. Budhwar v. Union Of India 1996 23 Anuj Kumar Dey & Anr vs Union Of India 1996 24 Union Of India And Others v. Major A. Hussain 1997) 281 287 297 305

25 The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997 319 26 Union of India v. Capt. A.P. Bajpai 1998 27 Union Of India v. Subedar Ram Narain 1998 28 Union of India v. Hav Clerk SC Bagari 1999 29 Union Of India v. Himmat Singh Chahar 1999 30 Union of India v. Sadha Singh 1999 31 Union Of India v. Charanjit S. Gill 2000 32 Sukhdev Singh Gill v. State Of Punjab 2000) 33 Union Of India v. R P Yadav 2000 34 Union Of India v. Harjeet Singh Sandhu 2001 35 Union Of India v. R.K. Sharma 2001 36 Union Of India v. P.D. Yadav 2001 331 339 345 351 355 359 381 387 395 419 427

CONTENTS 37 Union of India v. L.D. Balam Singh 2002 38 Union Of India v. Shivendra Bikaram Singh 2003 39 Jasbir Kaur v. Union Of India 2003 40 Union Of India v. Ashok Kumar 2005 41 Union Of India v. Ranbir Singh Rathaur 2006 42 Union of India v. Capt. Satendra Kumar 2006 43 Romesh Kumar Sharma v. Union of India 2006 44 Pradeep Singh v. Union Of India 2007 45 Union Of India v. S.P.S. Rajkumar 2007 46 Sheel Kr. Roy v. Secretary M/O Defence 2007 47 Ram Sunder Ram v. Union of India 2007 48 Union of India and another v. SPS Vains 2008 49 P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008 50 Bachan Singh v. Union of India 2008 51 Union of India v. V. N. Singh 2010 52 Arun Raj v. Union Of India 2010

vii 447 457 475 481 491 501 505 511 517 521 529 535 543 551 581 593

53 Charanjit Lamba v. Commndng.Ocer,Southern Command 2010 603 54 J.S. Sekhon v. Union Of India 2010 55 Place Holder 56 Place Holder 57 Place Holder 609 615 617 619

viii 58 Place Holder 59 Place Holder 60 OCallahan v. Parker, 395 U.S. 258, 265 (1969)

CONTENTS 621 623 625

Preface

CONTENTS

Chapter 1

Major E. G. Barsay v. The State Of Bombay 1961

Major E. G. Barsay v. The State Of Bombay on 24 April, 1961 Equivalent citations: 1961 AIR 1762, 1962 SCR (2) 195 Bench: Subbarao, K. PETITIONER: MAJOR E. G. BARSAY v. RESPONDENT: THE STATE OF BOMBAY RF 1971 SC1120 (20) R 1977 SC2433 (9) D 1979 SC1255 (8) RF 1982 SC1413 (39) R 1986 SC1655 (7) RF 1992 SC 604 (125) ACT:

Criminal Trial - Criminal Misconduct - Army Ocer tried by DATE OF JUDGMENT: Special Judge-jurisdiction-Sanction for Prosecution given by Deputy 24/04/1961 Secretary-Validity-Investigation by BENCH: Inspector of Police, Special PoSUBBARAO, K. lice Establishment, Delhi-LegalityBENCH: Conspiracy-Public Servants charged with others-Legality of chargeSUBBARAO, K. Approver-Corroboration-Prevention DAYAL, RAGHUBAR of Corruption Act, 1947 (11 of 1947). CITATION: ss. 5A, 5(2), 6(r)(a)-Army Act, 1950 1961 AIR 1762 1962 SCR (2) 195 (46 of 1950), ss. 52, 70, 125, 127Criminal Law (Amendment) Act, CITATOR INFO : 1952 (46 of 1952), ss. 6, 7, 8, 9R 1963 SC1850 (59) Constitution of India, Art. 77. R 1966 SC1273 (20) HEADNOTE: R 1968 SC1323 (7) The appellant and ve other perRF 1971 SC 500 (17)

Major E. G. Barsay v. The State Of Bombay 1961 Held, that the Special judge had jurisdiction to try the appellant for the oences charged. The Army Act does not bar the jurisdiction of criminal courts in respect of acts or omissions which are punishable under the Army Act as well as under any other law in force. The oences charged were triable both by the Special judge and by a Court Martial. In such cases s. 125 of the Army Act provides that if the designated ocer decides that the proceedings should be before a Court Martial he may direct the accused to be detained in military custody. But in the present case the designated ocer bad not exercised his discretion and the Army Act was not in the way of the Special judge exercising his jurisdiction. Rule 3 made under s. 549, Code of Criminal Procedure for persons subject to military law was applicable only to magistrates and not to a Special judge who is not a magistrate within the meaning of r. 3. Besides, s. 7 of the Criminal Law (Amendment) Act, 952, provides that notwithstanding anything contained in the Code of Criminal Procedure or in any other law the oences specied in s. 6(1) shall be triable by Special judges only. The words any other law included the Army Act also. The oences for which the appellant was convicted were oences specied in s. 6(1) and were exclusively triable by a Special judge. Held, further, that the sanction for the prosecution of the appellant was a good and valid sanction. Article 77 of the Constitution which pro-

sons, three of them not being public servants, were charged with criminal conspiracy to dishonestly or fraudulently misappropriate or convert to their own use military stores and with dishonestly and fraudulently misappropriating the same. Sanction for prosecution of the accused was given by a Deputy Secretary on behalf of the Central Government. The accused were tried by a Special judge. The main evidence led was that of one L, a security ofcer., who had been asked to join the conspiracy and who had joined it with a view to have the oenders apprehended. The Special judge convicted all the accused persons. On appeal the High Court conrmed the conviction of the appellant and one other accused now dead and acquitted the other four accused persons holding that the evidence of L was corroborated in material particulars in respect of the appellant and one other accused only. The appellant contended:- (i) that the appellant who was subject to the Army Act could only be tried by a Court Martial and the Special judge had no jurisdiction to try him, (ii) that the sanction to prosecute was void as it was not expressed to be made in the name of the President, (iii) that the investigation by the Inspector of Police, was illegal, (iv) that there could be no legal charge of conspiracy between accused who were public servants and accused who were not, and (v) that L was a wholly unreliable witness whose testimony ought to have been rejected totally and no question of its corroboration arose.

3 vides that all orders of the Central Government shall be expressed to be in the name of the President is only directory and not mandatory. Where an order was not issued in strict compliance with the provisions of Art. 77 it could be established by extraneous evidence that the order was made by the appropriate authority. In the present case there was uncontroverted evidence which established that the order of sanction was made by the Deputy Secretary on behalf of the Central Government in exercise of the power conferred on him under the rules delegating such power to him. consent in respect of all the members of the establishment. It was not necessary that the consent be given to every individual member of the Establishment. H.N. Rishbud & Inder Singh v. State of Delhi, [1955] 1 S.C. R. 1150, followed,

Held, further, that there was no defect in the charges. It was not illegal to charge public servants and persons who were not public servants with the criminal conspiracy to do certain acts for which all of them could not be convicted separately. Though all the accused were not liable for the individual oences, they were all guilty of the oence of conThe State of Bombay v. Pu- spiracy to do illegal acts. rushottam jog Naik, [1952] S.C.R. Held, further, that the evidence 674, Dattareya Moreshwar Pan- of L was reliable and that it was garkar v. The State of Bombay, corroborated in material particulars [1952] S.C.R. 612, J. K. Gas Plant so far as the appellant was conManufacturing Co., Ltd. v. The cerned. Though L was not an accomKing Emperor, [1947] F.C.R. 141, plice, he was an interested witness P. Joseph John v. The State of and required corroboration. The evTravancore-Cochin, [1955] 1 S.C.R. idence of an approver and the cor1011 and Ghaio Mall & Sons v. The roborating pieces of evidence could State of Delhi, [1959] S.C.R. 1424, not be treated in two dierent comapplied. partments; but had to be considered Held, further, that though the conditions of investigation by the Inspector of Police as laid down in S. 5A, Prevention of Corruption Act were not complied with the trial. was not vitiated by the illegality as it did not result in any miscarriage of justice. The powers and jurisdiction of members of the Delhi Special Police Establishment for investigation of offences in the State of Bombay had been duly extended by a notication of the Government of Bombay dated August 13, 1949, giving a general together. Though some parts of the evidence of L were not accepted, his version was broadly accepted in regard to the conspiracy and the manner in which articles were smuggled out. Sarwan Singh v. The State of Punjab, [1957] S.C.R. 953, explained. JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2 of 1958. Appeal from the judgment and

Major E. G. Barsay v. The State Of Bombay 1961

order dated July 27, 1957, of the mand, were his superior ocers. AcBombay High Court in Criminal Ap- cused No. 1, Major Barsay, was secpeal No. 254 of 1957. WITH ond in command in the Depot and Criminal Appeal No. 81 of 1960. was in charge of stores section; he was subordi- nate to Col. Rao. MaAppeal by special leave, from the jor Nag, another subordinate to Col. judgment and order dated July 27, Rao, was in charge of the administra1957, of the Bombay High Court, in tion of the Depot. One Capt. Pratap Criminal Appeals Nos. 255 and 257 Singh was the Security Ocer in the of 1957. Depot; but, during the period in M.H. Chhatrapati, Ravindra question, one Lawrence was acting as Narain, O. C. Mathur and J. B. the Security Ocer in place of Capt. Dadachanji, for the appellant (in Pratap Singh. Kochhar, accused No. Criminal Appeal No. 2 of 1958). 2, who was on leave from October 25, B.K. Khanna and D. Gupta, for 1954, was recalled to duty by accused the respondent in Criminal Appeal 2 No. 1 and was put in charge of kit of 1958) and appellant (in Criminal stores in the Depot. Avatar singh, Appeal No. 81 of 1960). Ram Lal accused No. 3, who was working in Anand and S. N. Anand, for respon- the Unit Sub Park, was transferred dent No. 1 (in Criminal Appeal No. to the Kit Stores by accused No. 1 during the absence on leave of Col. 81 of 1960). B.S. Gheba, for respondent No. 2 Rao. Accused No. 4, Saighal, was (in Criminal Appeal No. 81 of 1960). an Ex-Col. and was at one time the Station Commandant of the Depot; 1961. April 24. The Judgment of after retirement he had been staythe Court was delivered by SUBBA ing in a bungalow at a short distance RAO, J.-These two appeals-one led from mile No. 92/7 on the Poonaby accused No. 1 by certicate and Bombay Road. Accused No. 5, Ramthe other led by the State of Mahachand Gangwani, was a refugee from rashtra by special leave-against the Sind and he was running a hotel at judgment of the High Court of BomLonnavala. Accused No. 6, Debay conrming the conviction and vichand, and one Khemchand, who sentence of accused No. 1 and setting is absconding, are sons of accused aside the convictions and sentences of No. 5. Accused Nos. 4 and 5 were accused Nos. 2 and 3. friends and they were also partners The prosecution case may be along with one Bhagwan Parshuram briey stated. There was a depot of Bombay in The Bombay Loncalled the Dehu Vehicle Depot in avala Disposal Syndicate. There which military stores were kept. In were large consignments of Kits in the year 1944 Col. Rao, the Chief Shed No. 48 of Kit Stores which were Ordnance Ocer, was in charge of unitemized and unaccounted for in the Depot; Col. Sindhi, the Station the books of the Depot. The accused Commandant, and Brig. Wilson, the entered into a conspiracy to smuggle Brigadier, Ordnance, Southern Com- out some of the said stores and to

5 make an illegal gain by selling them of the conversation accused No. 1 at Bombay through accused No. 4. suggested to Lawrence that valuable The brain behind the conspir- stores in Shed No. 48 might be smugacy was accused No. 1. The plan gled out and the large amounts exchalked out to implement the ob- pected to be realized from their sale ject of the conspiracy may be briey might be shared between the conspirstated. Col. Rao was to proceed ators, including Lawrence. Presumon leave sometime in December 1954 ably to put him in a suitable frame of and Maj. Barsay, being the next in mind to accept the suggestion to becommand, was naturally to succeed come a conspirator, he also hinted to him as Chief Ordnance Ocer of the Lawrence that Col. Rao suspected Depot during the absence on leave that he (Lawrence) had a hand in of Col. Rao. The smuggling of the the theft. The scheme outlined by goods out of the Depot was there- accused No. 1 was conrmed by acfore arranged to take place during cused No. 2 a few days later. Accordthe period when Maj. Barsay was ing to the plan chalked out by Maj. acting as the Chief Ordnance O- Barsay, he was to appoint a board cer of the Depot. Col. Rao went of ocers for itemization of Speon leave from December 11, 1954. cialist Boxed Kits in Shed No. 17 Kochhar, the second accused, who and once the board started functionwas in charge of the Fit- Park, pro- ing there would be shuttle of trucks ceeded on two months leave of ab- moving from Shed No. 48 to Shed sence with eect from October 25, No. 17 and vice versa and during 1954, but he was recalled by accused the movements of those trucks two No. 1 and posted as ocer in charge or three trucks loaded with valuable of Kit Stores on November 25, 1954. stores were to be moved out through Accused No. 3, Avatarsingh, was the main gate of the Depot on the working in the Unit Sub Park, and pretext of being back-loaded to the he too was shifted from there to the Return Stores Sub-Depot. He was Kit Stores on or about November 22, also to take Col. Rao to Shed No. 1954. These two, postings were made 48 and explain to him that the boxes by accused No. 1 without the con- contained very few items so that he sent or knowledge of Col. Rao when too, on his return from leave, would he had gone to Delhi on some tempo- not be surprised at the nal result of rary duty for ten days from Novem- the itemization. It was also agreed ber 20, 1954 to November 30, 1954. that the scheme should be pushed On the night of December 1, 1954, through tentatively on December 16, there was a theft of various articles 17 and 18, 1954. But, for one reain the Unit Park of the Depot. Ac- son or other, it could not be pushed cused No. 1 called in Lawrence, the through during those days, as Capt. acting Security Ocer, ostensibly to Kapoor was frequently visiting the discuss with him certain matters re- scene of itemization. garding the theft. During the course On December 18, 1954, a meet-

Major E. G. Barsay v. The State Of Bombay 1961 On the evening of December 19, 1954, Lawrence went to the house of Saighal and the latter showed him the spot where the stores were to be transshipped. Thereafter, after taking his dinner, Lawrence went to the Depot at 9 p.m. The Orderly Ocer at the Depot, one Shrinivasan, informed Lawrence that Jamadar Kundanlal, who was to have been on duty at the main gate on December 20, 1954, was sick and had taken 3 days leave of absence on medical grounds and that Maj. Barsay had sent a chit to him asking him to send Lawrence to the bungalow of Maj. Barsay. Lawrence went to the bungalow of Maj. Barsay, but could not meet him; and then Lawrence went to the residence of Jamadar Kundanlal and tried to persuade him to attend to his duty at the main gate on December 20, 1954. On December 20, 1954, at about 9.15 a.m. Maj. Barsay called Havaldar Pillay to his oce and asked him to allot a new vehicle to the Kit Stores and to detail driver Ramban on that vehicle. Havaldar Pillay did accordingly. At about 10 a.m., Maj. Barsay called Maj. Nag and Lawrence to his oce and, in the presence of Maj. Nag, he issued orders to Lawrence to go to Dehu Ordnance Depot (D.O.D.) personally and get the re hoses. After Maj. Nag left the place, Lawrence told Maj. Barsay that Jamadar Kundanlal had reported himself to be sick and had taken leave of absence and that one Godse was at the main gate. Maj. Barsay suggested to Lawrence that 26 Jamadar Jogendrasingh may

ing took place at Maj. Barsays bungalow and accused Nos. 1 to 4 and Lawrence attended that meeting. At that meeting the details of working out the plan to be carried out on December 20, 1954, were nalized. Kochhar reported to the conspirators that he had briefed Jamadar Kundanlal, and Lawrence told them that, as per Kochhars suggestion, he had already detailed Jamadar Kundanlal on day duty at the main gate during the next week. Maj. Barsay agreed to get a driver of his condence detailed on one of the trucks to be allotted to the Kit Stores and he offered to give orders to Kochhar on the morning of December 20, 1954, in the presence of all, to transfer the itemized kits to Shed No. 26 ostensibly for the purpose of conditioning and preservation. That would enable accused No. 3, Avatar Singh, to load the stores from Shed No. 17. The rst trip was to be of ordinary stores in which the conspirators were not interested and the second trip was to be of valuable stores which were to be smuggled out of the gate. Maj. Barsay also undertook to call Maj. Nag to his oce on December 20, 1954 and issue orders in the presence of Maj. Nag to Lawrence to go to Dehu Ordnance Depot (D.O.D.) and get the re hoses which were sent there for repairs. Kochhar agreed to prepare a bogus voucher on Monday (December 20, 1954) morning, and Lawrence undertook to provide a bogus gate-pass. Accused No. 4, Saighal, agreed to keep a lorry and some laborers present near his bungalow for transshipping the stores.

7 be put at the main gate in place of Godse, and he informed him that he had xed upon Ramban as the driver of the vehicle in which the stores were to be smuggled out. At about 11 a.m. Lawrence met Maj. Barsay and Kochhar near, Shed No. 48 and was told by Maj. Barsay that the scheme was to proceed according to schedule. Kochhar and Lawrence then went to Shed No. 17 where Avatarsingh, accused No. 3, was present. Kochhar told Avatarsingh that he had not prepared any voucher as it was not necessary. Lawrence had brought an old gate-pass with him and he handed over the same to Avatarsingh. Truck No. D. D. 5963 was, in the rst instance, loaded with ordinary stores and was sent to Shed No. 26. In the meanwhile, Lawrence went to the Depot and asked Godse to take over at the Unit Sub Park gate and he ordered Jamadar Jogendrasingh to take over from Godse at the main gate. As Jamadar Jogendrasingh refused to accept the gate-pass to be produced by the driver and pass out the vehicle without making an entry regarding the same in the Vehicles In and Out Register, Lawrence gave him a written order to that effect with instructions not to show or hand over that written order to anybody except himself on his return or to Maj. Nag. At about 1 p.m. Maj. Barsay told Lawrence that he had become apprehensive of the scheme succeeding, as he had seen the Station Commandants car near the Barrack Oce and, therefore, he told him not to take out the vehicle till that car had gone out. Lawrence agreed and went to Shed No. 17 where Avatarsingh was present, and Avatarsingh got the truck loaded and handed over the bogus gate-pass and the dutyslip of the vehicle to Ramban, and he also asked Lawrence to get into the truck there itself instead of near the main gate as per the plan. After Lawrence got into the truck, it proceeded towards the main gate at about 1.40 p.m. At the main gate, Ramban gave the duty-slip of the vehicle and also the bogus gate-pass to Jamadar Jogendrasingh and the latter told Lawrence that Maj. Barsay had left a message for him not to do it on that day. Lawrence, ignoring the said directions, took the vehicle out of the gate. At a spot near Talegaon there was a civilian lorry bearing No. BYL 3289 kept ready by accused Nos. 4, 5 and 6 for transhipping the stores, and to that place the truck was driven. The two lorries were parked back to back, and accused No. 6. and the absconding accused Khemchand and two others started transhipping the stores from the military lorry to the civilian lorry. At that stage, the police ocers appeared at the scene and prevented further fullment of the plan of the accused. It is a further case of the prosecution that Lawrence ostensibly joined the conspiracy with a view to bring to book the culprits and was informing the superior ocers and the police orally and in writing from time to time as and when the important events were taking place. As some argument was made on the basis of the charges, it would be convenient at this stage to read

Major E. G. Barsay v. The State Of Bombay 1961 you accused Nos. 1, 2, 3,4, 5, 6 and another (Khemchand Ramchand Gangawani), between about October 1954 and December 1954 in pursuance of the abovesaid conspiracy jointly and in furtherance of the common intention of all of you, you accused No. 1, Major Barsay, Ociating Chief Ord. nance Ocer, and you accused No. 2, H. S. Kochbar, Civilian Group Ocer, D. U. V., and you accused No. 3, Avatarsingh Seva Singh, Civilian Store Keeper, and you accused No. 4, W. S. Saighal, released Lt. Col., and you accused No. 5, Ramchand Pahalajrai Gangawani, and you accused No. 6, Deviprasad Ramchand Gangawani, did on 20th of December 1954, dishonestly or fraudulently his. appropriate with a common intention or convert for your own use Government property in the form of Military Stores described in detail in Schedule A appended herewith, entrusted to or under the control of the rst three accused, namely, Major E. G. Barsay, H. S. Kochhar and Avatarsingh Seva Singh, who were public servants and thereby committed an oence under Section 5(1)(c), punishable under section 5(2), of the Prevention of Corruption Act, read with Section 34 of the Indian Penal Code and within my cognizance. (3) That you accused Nos. 1, 2,3, 4, 5, 6 and the absconding accused Khemchand Ramchand Gangawani, in pursuance of the abovesaid conspiracy, jointly and in furtherance of the common intention of all of you, did by corrupt or illegal means by abusing their position as public servants, obtained for yourselves or for any other persons, the

the charges framed by the Special Judge, Poona. The charges are: (1) That you accused No. 1 Major E. G. Barsay, when ociating as Chief Ordnance Ocer, D. U. V. and you accused No. 2, H. S. Kochhar, when posted as Civilian Group Ofcer, D. U. V., and you accused No. 3, Avatarsingh Seva Singh, then working as Civilian Stores Keeper, D. U. V., and you accused No. 4, W. S. Saighal, released Lt. Col., and you, accused No. 5, Ramchand Pahlajrai Gangawani, and you accused No. 6, Deviprasad Ramchand Gangawani and the absconding accused Khemchand between about October 1954 and December 1954 were parties to a criminal conspiracy at Dehu Road area by agreeing to do certain illegal acts to wit: Firstly, dishonestly or fraudulently fraudulently misappropriate or otherwise convert to your own use the Military Stores lying in the Vehicle Depot, Dehu Road and which was entrusted or was in-charge of Major E. G. Barsay, H. S. Kochhar, and Avatarsingh Seva Singh and which was also under their control, as public servants; Secondly, to obtain by corrupt or illegal means for yourselves or for any other persons such stores which amounts to abusing their position as public servants i.e., the coconspirators; Thirdly, to commit illegal acts of committing theft or receiving of stolen property and the above said illegal acts were done in pursuance of the said agreement and that you have thereby committed an oence punishable under Section 120-B of the Indian Penal Code and within my cognizance. (2) That

9 valuable things in the form of Military Stores detailed out in Schedule A appended herewith, and this act 205 constitutes an oence under Section 5(1)(d) of the Prevention of Corruption Act, punishable under Section 5(2) of the said Act read with Section 34 of the Indian Penal Code and within my cognizance. (4) That you accused Nos. 1, 2, 3, 4,5, 6, along with the absconding accused, Khemchand Ramchand Gangawani, did on 20th of December 1954, in pursuance of the abovesaid conspiracy jointly and in furtherance of the common intention of all of you, dishonestly or fraudulently remove the Military stores described in detail in Schedule A appended herewith from the Dehu Road Depot and this act constitutes an oence punishable either under Section 381 or 411 of the Indian Penal Code, read with Section 34 of the Indian Penal Code and within my cognizance. The main defence of the accused was that, in view of the thefts going on in the Depot, the reputation of Lawrence, the Security Ocer, was at the lowest ebb, that in order to resurrect his reputation and to ingratiate himself into the good books of his superiors, he concocted the scheme of huge fraud and implicated therein the accused, including the Acting Chief Ordnance Ocer of the Depot. Shortly stated, the defence was that all the accused were innocent and that it was Lawrence that abducted the truck with the stores, made false statements to the superior ocers from time to time giving concocted versions to t in with the theory of conspiracy. The Special Judge, on a consideration of the evidence, held that all the charges were made out against the accused. He rejected the technical objections raised in regard to the framing of the charges, the validity of the investigation made by the investigating ocer and the sanction given by the Central Government for the prosecution of the accused, and came to the conclusion that prima facie there was no good ground to discard the evidence of Lawrence, but he placed the said evidence in the category of interested evidence and required independent corroboration before acceptance. In the words of the learned Special Judge, Shri Lawrences evidence can, therefore, be accepted and relied upon, only if it is corroborated by other independent evidence and circumstances in the case. He found ample evidence and circumstances corroborating the evidence of Lawrence. After considering the entire evidence, he came to the following conclusion: The above discussion of the evidence on record and the circumstances in the case makes it abundantly clear that the prosecution has been able to prove beyond a reasonable doubt that every one of these six accused did commit overt acts in furtherance of the criminal conspiracy alleged against them. He held that accused Nos. 1 to 6 were guilty of the principal oence charged against them and convicted all of them under s. 120-B of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act, 1947,

10

Major E. G. Barsay v. The State Of Bombay 1961 also appear to be improper so far as accused Nos. 1 to 3 were concerned; but it held that so far as accused Nos. 4, 5 and 6 were concerned, the charge under s. 411, read with s. 34, Indian Penal Code, would be quite proper. Before the High Court, learned counsel appearing on behalf of the accused and the special counsel, Mr. Amin, appearing on behalf of the State, asked the Court to proceed to examine the evidence of Lawrence on the basis that he was a decoy and a trap witness. The High Court agreed with the learned Special Judge that the evidence of Lawrence would, have to be treated on par with that of a trap witness and that it would be inadvisable to rely upon the said evidence without independent corroboration. It also pointed out that the corroboration required was not a corroboration of every particular in respect of which the accomplice or the approver gave his evidence, but the corroboration must be such as to make the court believe that the evidence of the accomplice was a truthful one and that it would be safe to act upon that evidence. Finally the High Court premised its discussion of the evidence in the following words: In our opinion, all these decisions would clearly establish that it would not be safe to rely on the evidence of Lawrence who is admittedly a decoy or trap witness, without his testimony being corroborated from independent sources. Then the learned Judges of the High Court considered the evidence of Lawrence minutely, discarded some parts of the evidence which

read with B. 34 of the Indian Penal Code. He gave varying sentences of imprisonment and ne to the accused. The accused preferred ve appeals to the High Court against their convictions and sentences. A division bench of the Bombay High Court which heard the appeals set aside the conviction of accused Nos. 2, 3, 5 and 6, but conrmed those of accused Nos. 1 and 4. The High Court also rejected all the technical objections raised at the instance of the appellant-accused in regard to some parts of 2nd, 3rd and 4th charges. In regard to the 2nd and 3rd head sub-charges, tile High Court accepted the plea that accused Nos. 4, 5 and 6 could not be charged with having committed an oence under s. 5(1)(c) and s. 5(1)(d) of the Prevention of Corruption Act, as they were not public servants; but they held that it would be proper to frame a charge against them under s. 109 of the Indian Penal Code for having abetted the commission of the oence of criminal misconduct under s. 5(1)(c) and (d) of the Prevention of Corruption Act, committed by accused Nos. 1 to 3. As the High Court held that they were not prejudiced by the irregularity of the charge, it altered the charge to one under s. 109 of the Indian Penal Code, read with s. 5(1)(c) and (d) of the Prevention of Corruption Act. As regards the last head of the charge, it held that all the accused could not be charged with having committed an oence under s. 381 of the Indian Penal Code and that the charge under s. 411 of the Indian Penal Code would

11 were discrepant or inconsistent with other proved facts and accepted the broad story of conspiracy given by him as true to the extent it was corroborated by other unimpeachable pieces of evidence and circumstances. After elaborately considering the evidence of Lawrence, the learned Judges of the High Court came to the following con- clusion: We, therefore, accept Lawrences evidence, nd that his story is probable and true and we also nd that the evidence on the record justied the nding of the trial Court that there was a conspiracy as alleged by the prosecution to smuggle goods out of the Dehu Vehicles Depot. Then the learned Judges considered the question as to which of the accused took part in the conspiracy. As regards accused No. 1, they came to the conclusion that there was cogent evidence to implicate him in the conspiracy, and in that view, they conrmed the nding of the trial court that he was a party to the conspiracy to smuggle military goods out of the Depot. As regards accused No. 2, they held that the evidence was not sucient to establish that he was a member of the alleged conspiracy and that, as he could not be held to be a member of the conspiracy, he could not also be held to be guilty of committing criminal misconduct under s. 5(1)(c) and (d) of the Prevention of Corruption Act, 1947. As regards accused No. 3, they were of the opinion that the case against him was not established beyond reasonable doubt and that he could not be held to be guilty of criminal conspiracy as well as criminal misconduct. As regards accused No. 4, they accepted the nding of the learned Special Judge, as independent acceptable evidence corroborated the evidence of Lawrence in respect of this accused. So far as accused Nos. 5 and 6 were concerned, they found the evidence to be very weak and therefore set aside the convictions and sentences passed against them. In the result, they conrmed the convictions and sentences of accused Nos. 1 and 4, and set aside those of accused Nos. 2, 3, 5 and 6. It appears that accused No. 4 died after the appeal was disposed of by the High Court. Accused No. 1 preferred Criminal Appeal No. 2 of 1958 against his conviction and sentence passed by the High Court and the State preferred Criminal Appeal No. 81 of 1960 challenging the correctness of the order of acquittal made in respect of accused Nos. 2 and 3. We shall rst take the appeal led by accused No. 1. Learned counsel for the appellant raised before us all the technical points which he unsuccessfully raised before the Special Judge as well as before the High Court. At the outset we shall deal with the said contentions before considering the arguments advanced on the merits of the case. The rst contention of learned counsel for the appellant is that the Special Judge, Poona, had no jurisdiction to take cognizance of the offences with which the accused were charged and that they should have been tried only by a court martial

12

Major E. G. Barsay v. The State Of Bombay 1961 ned under the Army Act, unless the conditions laid down therein were strictly complied with, that is, unless requisite notice is given to the ocer referred to in s. 125 of the Act. To appreciate the said argument it is necessary to scrutinize the provisions of the Army Act in some detail. Section 2 describes the dierent categories of army personnel who are subject to the Army Act. Section 3(ii) denes civil oence to mean an oence which is triable by a criminal court; a. 3(vii) denes court martial to mean a court martial held under this Act; s. 3(viii) denes criminal court to mean a court of ordinary criminal justice in any part of India, other than the State of Jammu and Kashmir; s. 3(xvii) denes oence to mean any act or omission punishable under this Act and includes a civil oence; and s. 3(xxv) declares that all words and expressions used but not dened in this Act and dened in the Indian Penal Code shall be deemed to have the meanings assigned to them in that Code. Chapter VI is comprised of ss. 34 to 70. The heading of the Chapter is Oences. As we have already noticed, the word oence is dened to mean not only any act or omission punishable under the Army Act, but also a civil oence. Sections 34 to 68 dene the oences against the Act triable by court martial and also -give the punishments for the said oences. Section 69 says that any person subject to the Act who at any Place in or beyond India commits any civil oence shall be deemed to be guilty of an oence against the

under the Army Act. The argument of learned counsel for the appellant may be briey stated thus: The Army Act, 1950 (46 of 1950) created new oences. Section 52 of the said Act created oences with which accused in the present case were charged, and provided a new machinery, namely, a court martial, to try persons committing the said oences. Therefore by necessary implication the trial of the said oences was excluded from the jurisdiction of ordinary criminal courts. This argument was sought to be reinforced by the provisions of s. 69 of the Army Act whereunder, it was said, by a ction, oences committed by army personnel which were triable by ordinary courts were to be deemed to be oences committed against the said Act. That difference between oences against the Army Act and the oences deemed to be committed against the Army Act, the argument proceeded, was an unfailing clue for the true construction of the pro- visions of the Army Act in that the oences under the rst category were exclusively triable by court martial and the oences; of the latter category were subject to concurrent jurisdiction of two courts. The logical conclusion from this premises, it was said, was that the provisions designed to resolve conict of jurisdiction related only to the second category of oences. Assuming that the said contention was wrong, it was argued, s. 126 of the Army Act is peremptory in its language, namely, that a criminal court shall not have jurisdiction to try an oence 27 de-

13 Act and, if charged therewith under this section, shall be liable to be tried by a court martial and, on conviction, be punishable as provided for the oence under any law in force in India or such less punishment as is in the Act mentioned. Under s. 70, A person subject to this Act who commits an oence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an oence against this Act and shall not be tried by a Court martial. There are three exceptions to this section with which we are not concerned now. Shortly stated, under this Chapter there are three categories of oences, namely, (1) offences committed by a person subject to the Act triable by a court martial in respect whereof specic punishments have been assigned; (2) civil oences committed by the said person at any place in or beyond India, but deemed to be oences committed under the Act and, if charged under s. 69 of the Act, triable by a court martial; and (3) oences of murder and culpable homicide not amounting to murder or rape committed by a person subject to the Act against a person not subject to the military law. Subject to a few exceptions, they are not triable by court martial, but are triable only by ordinary criminal courts. The said categorisation of oences and tribunals necessarily bring about a conict of jurisdiction. Where an oence is for the rst time created by the Army Act, such as those created by ss. 34, 35, 36, 37 etc., it would be exclusively triable by a courtmartial; but where a civil oence is also an offence under the Act or deemed to be an oence under the Act, both an ordinary criminal court as well as a court martial would have jurisdiction to try the person committing the offence. Such a situation is visualized and provided for by as. 125 and 126 of the Act. Under s. 125, When a criminal court and a court martial have each jurisdiction in respect of an oence, it shall be in the discretion of the ocer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other ocer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that ocer decides that they should be instituted before a court martial, to direct that the accused person shall be detained in military custody. Under a. 126(1) of the Act, When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged oence, it may, by written notice, require the ocer referred to in section 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government. Clause (2) of that section says that, In every such case the said ofcer shall either deliver over the of-

14

Major E. G. Barsay v. The State Of Bombay 1961 What is more, s. 127 of the Army Act provides for successive trials by court martial and by criminal court in respect of the same oence. Under sub-s. (1) of that section, A person convicted or acquitted by a court martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same oence, or on the same facts. But sub-s. (2) thereof imposes a limitation in the matters of punishment; for, under that sub-section, the criminal court shall, in awarding punishment, have regard to the punishment the oender may already have undergone for the said oence. The scheme of the Act, therefore, is selfevident. It applies to oences committed by army personnel described in s. 2 of the Act; it creates new oences with specied punishments, imposes higher punishments to preexisting oences, and enables civil offences by a ction to be treated as oences under the Act; it provides a satisfactory machinery for resolving the conict of jurisdiction. Further it enables, subject to certain conditions, an accused to be tried successively both by court martial and by a criminal court. It does not expressly bar the jurisdiction of criminal courts in respect of acts or omissions punishable under the Act, if they are also punishable under any other law in force in India; nor is it possible to infer any prohibition by necessary implication. Sections 125, 126 and 127 exclude any such inference, for they in express terms provide not only for resolving conict of jurisdiction between a criminal court and a court martial in respect of a same oence,

fender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be nal. Section 125 presupposes that in respect of an offence both a criminal court as well as a court martial have each concurrent jurisdiction. Such a situation can arise in a case of an act or omission punishable both under the Army Act. as well as under any law in force in India. It may also arise in the case of an oence deemed to be an oence under the Act. Under the scheme of the said two provisions, in the rst instance,, it is left to the discretion of the ocer mentioned in s. 125 to decide before which court the proceedings shall be instituted, and, if the ocer decides that they should be instituted before a court martial, the accused person is to be detained in military custody; but if a criminal court is of opinion that the said offence shall be tried before itself, he may issue the requisite notice under s. 126 either to deliver over the offender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Government. On receipt of the said requisition, the ocer may either deliver over the oender to the said court or refer the question of proper court for the determination of the Central Government whose order shall be nal. These two sections provide a satisfactory machinery to resolve the conict of jurisdiction, having regard to the exigencies of the situation.

15 but also provide for successive trials and under the Prevention of Corrupof an accused in respect of the same tion Act. They are also oences unoence. der s. 52 of the Army Act. Though Now let us apply this legal posi- the oence of conspiracy does not fall tion to the facts of the case. Under under s. 52 of the Act, it, being a s. 52 of the Act, any person sub- civil oence, shall be deemed to be an ject to the Act who commits theft oence against the Act by the. force of any property belonging to Govern- of s. 69 of the Act. With the rement or to any military, naval or air sult that the oences are triable both force mess, band or institution, or to by an ordinary criminal court having any person subject to military, naval jurisdiction to try the said oences or air force law, or dishonestly mis- and a court martial. To such a situappropriates or converts to his own ation ss. 125 and 126 are clearly inuse any such property, or commits tended to apply. But the designated criminal breach of trust in respect of ocer in s. 125 has not chosen to exany such property, or does any other ercise his discretion to decide before thing with intent to defraud, or to which court the proceedings shall be cause wrongful gain to one person or instituted. As he has not exercised wrongful loss to another person shall, the discretion, there is no occasion on conviction by court martial, be li- for the criminal court to invoke the able to suer im- prisonment for a provisions of s. 126 of the Act, for term which may extend to ten years the second part of s. 126(1), which or such less punishment as is in the enables the criminal court to issue a act mentioned. Section 2 (xxv) says notice to the ocer designated in s. that all words and expressions used 125 of the Act to deliver over the ofbut not dened in the Army Act fender to the nearest magistrate or and dened in the Indian Penal Code to postpone the proceedings pending shall be deemed to have the mean- a reference to the Central Governings assigned to them in that Code. ment, indicates that the said subsecThe section does not create new of- tion presuppose, that the designated fences, but prescribes higher punish- ocer has decided that the proceedments if the said oences are tried ings shall be instituted before a court by a court martial. The appellant martial and directed that the accused and the other accused were charged person shall be detained in military in the present case, among others, custody. If no such decision was arfor having been parties to a criminal rived at, the Army Act could not obconspiracy to dishonestly or fraud- viously be in the way of a criminal ulently misappropriate or otherwise court exercising its ordinary jurisdicconvert to their own use the mili- tion in the manner provided by law. tary stores and also for dishonestly The correct approach to the probor fraudulently misappropriating the lem may be stated thus: The apsame. The said acts constitute of- pellant and the other accused have fences under the Indian Penal Code committed oences under the Indian Penal Code and the Prevention of

16

Major E. G. Barsay v. The State Of Bombay 1961 an oence for which he is liable to be tried-by a Court Martial, such Magistrate shall not proceed to try such person or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any oence triable by such Court, unless, (a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military, naval or air-force authority; or (b) he is moved thereto by such authority. This rule obviously cannot apply unless the Special Judge constituted under the Criminal Law (Amendment) Act, 1952, is a magistrate within the meaning of that rule. A special judge is appointed under s. 6(1) of the Criminal Law (Amendment) Act to try the offences specied therein. Section 6(2), of that Act lays down that A person shall not be qualied for appointment as a special judge under this Act unless he is, or has been, a sessions Judge or an additional sessions Judge or an assistant sessions Judge under the Code of Criminal Procedure, 1898 (V of 1898). Section 8(1) of the said Act says, A Special Judge may take cognizance of oences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial of warrant cases by magistrates. Under sub-s. (3) thereof, Save as provided in sub-section

Corruption Act. By reason of s. 7 of the Criminal Law (Amendment) Act, 1952, the said oences are triable by a special judge appointed under that Act. The special judge so appointed would have jurisdiction to try the said oences unless the Army Act expressly, or by necessary implication, excluded the oences alleged to have been committed by the appellant and others from the jurisdiction of that court. The aforesaid discussion of the provisions of the Army Act indicates that there is not only no such exclusion but also that there is clear and unambiguous indication to the contrary. An argument advanced by learned counsel for the appellant in this context may conveniently be noticed at this stage. The second branch of the argument of learned counsel for the appellant under this head is based upon s. 549 of the Code of Criminal Procedure. Under that section, The Central Government may make rules, consistent with this Code and the Army Act............... as to the cases in which persons subject to military, naval or air-force law shall be tried by a court to which this Code applies, or by Court Martial................ . The Central Government made rules in exercise of the power conferred on it under this section. No rule was made prescribing that the oences with which we are now concerned shall be tried only by a court martial. But reliance is made on r. 3 which reads: Where a person subject to military, naval or air-force law is brought before a Magistrate and charged with

17 (1) or sub- section (2), the provisions of the Code of Criminal Procedure, 1898, shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for the purpose of the said provisions, the Court of the Special Judge shall be deemed to be a Court of session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special judge shall be deemed to be a public prosecutor. Under s. 9 of the said Act, The High Court may exercise, so far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Crimi- nal Procedure, 1898 (Act V of 1898), on a High Court as if the Court of a Special Judge were a Court of session trying cases without a jury within the local limits of the jurisdiction of the High Court. These provisions equate a special judge with a sessions judge, and the provisions of the Code of Criminal Procedure applicable to a sessions judge, in so far as they are not inconsistent with the Act, are made applicable to a special judge. But it is said that s. 8(1) of the Act puts him on par with a magistrate and therefore r. (3) of the rules framed under s. 549 which applies to a magistrate equally applies to a special judge. This argument overlooks the limited purpose for which s. 8(1) is enacted. Section 8 of the Criminal Law (Amendment) Act makes a distinction between the power of a special judge to take cognizance of an oence and the procedure to be followed by him in trying the case. In trying accused persons, he is enjoined to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by magistrates. The warrant procedure is incorporated in the Act by reference to the Code of Criminal Procedure. Chapter XXI of the Code of Criminal Procedure provides the procedure for the trial of warrant cases; and s. 549 is not one of the sections in that Chapter. Nor does it empower the Central Government to make rules modifying the warrant procedure. That apart, can it be said that, by reason of the procedure to be followed by the special judge, he would be a magistrate empowered to try such a person within the meaning of r. (3)? Section 8(1) of the Criminal Law (Amendment) Act maintains a clear distinction between jurisdiction and the procedure. It is, therefore, not possible to hold that a special judge is a magistrate within the meaning of r. (3). If so, it follows that r. (3) has no application to the trial of an army personnel by a special judge. There is a more formidable obstacle in the way of learned counsels argument. Section 7 of the Criminal Law (Amendment) Act, 1952, reads: Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) or in any other law the oences specied in subsection (1) of section 6 shall be triable by special Judges only. Doubtless the Army Act is comprehended by the words any other law. The oences with which we

18

Major E. G. Barsay v. The State Of Bombay 1961 1952. Under s. 7 of the said Act, the said oences are exclusively triable by a special judge. In the present case the accused were charged with having committed oences expressly falling under B. 6 of the said Act and, therefore, the special judge had clearly jurisdiction to try the accused in respect of the said oences. The mere fact that the said acts or omissions might also constitute an oence under s. 52 of the Army Act would not be of any relevance, as jurisdiction was exclusively conferred on the special judge notwithstanding anything contained in any other law. If that be so, the special judge had exclusive jurisdiction to try oences covered by s. 6 of the Criminal Law (Amendment) Act, 1952. At this stage, another argument of learned counsel may be adverted to. He says that some of the oences with which the accused are charged in the present case are not those enumerated in s. 6 of the Criminal Law (Amendment) Act, 1952. This objection is clearly answered by s. 7(b) of the said Act which says,

are now concerned are certainly offences specied in sub-s. (1) of s. 6 of the Criminal Law (Amendment) Act. The non obstante clause in s. 7 clearly confers jurisdiction to try persons committing the said oences on a special judge. But it is contended that the Army Act is a special Act and therefore s. 7 found in the general Act cannot take away the jurisdiction conferred on a court martial in respect of the said oences. That proposition of law may have some bearing when there is conict of jurisdiction arising out of a general Act and a special Act, without any specic exclusion of the jurisdiction in the general Act of that conferred under the special Act. But that principle may not have any relevance to a case where the general Act in express terms confers jurisdiction on a particular tribunal in respect of specied oences to the exclusion of anything contained in any other law. In such a situation, the intention of the Legislature is clear and unambiguous, and no question of applying any rule of interpretation would arise, for the rules of interpretation are evolved only to ascertain the intention of the Legislature.

When trying any case, a special judge may also try any oence other than an oence specied in section It is contended that s. 7 confers 6 with which the accused may, unan exclusive jurisdiction on a special der the Code of Criminal Procedure, judge only in regard to oences spec- 1898, be charged at the same trial. ied in sub-s. (1) of s. 6 and that It is then argued that the prosethe said subsection does not comprise cution has failed to establish that the oences under s. 52 of the Army Central Government accorded sancAct. There is a fallacy underlying tion to prosecute the appellant under this argument. Certain acts commits. 6(1) of the Prevention of Corrupted or omissions made by a person tion Act. Under s. 6(1)(a) of the constitute oences under s. 6(1) of Prevention of Corruption Act, the Criminal Law (Amendment) Act,

19 No Court shall take cognizance of an oence punishable under section 161 or section 164 or section 165 of the Indian Penal Code, or under subsection (2) of section 5 of this Act, alleged to have been commuted by a public servant, except with the previous sanction-(a) in the case of a person who is employed in connection with the aairs of the Union and is not removable from his oce save by or with the sanction of the Central Government, of the Central Government............ It is common case that the appellant was a public servant within the meaning of the said sub-section and, therefore, he cannot be prosecuted without the sanction of the Central. Government. The sanction given in this case for the prosecution of the appellant reads thus: . . . . . . . . . . . . . . . . . . . . NOW, THEREFORE, THE CENTRAL GOVERNMENT doth hereby accord sanction under section 197 of the Criminal Procedure Code (Act V of 1898) and section 6(1)(a) of the Prevention of Corruption Act, 1947 (II of 1947) to the initiation of proceedings to prosecute in a Court of competent jurisdiction the said Major E. G. Barsay and Shri H. S. Kochhar in respect of the aforesaid oences and other cognate oences punishable under other provisions of law. Sd. M. Gopala Menon, Deputy Secretary to the Govt. of India. Ex facie the said order giving the requisite sanction purports to have been issued in the name of the Central Government and is signed by the Deputy Secretary to the Government of India in the Ministry of Home Affairs. P.W. 36, Dharambir, an Assistant in the Minstry of Home Aairs, New Delhi, has given evidence in respect of this document. He says that the papers relating to the present case were submitted to the Home Ministry by the Inspector General of Police, Special Police Establishment, New Delhi, for obtaining the necessary sanction, that the papers were put up before the Deputy Secretary in that Ministry, that the Deputy Secretary was competent to accord sanction on behalf of the President, and that he gave the said sanction under his signature. In the crossexamination, this witness says that he cannot say whether the Deputy Secretarys signature was in his own right or by way of authentication of the Presidents order. This uncontradicted evidence clearly established that the Deputy Secretary was competent to accord sanction on behalf of the President and that he gave the sanction in exercise of the power conferred on him, presumably, under the rules framed by the President in this behalf. The statement made by this witness in the cross-examination is not inconsistent with that made by him in the examination-in-chief. The Deputy Secretary may have power to make some orders in his own right and also may have power to authenticate other orders issued in the name of the President. But in this case, this witness has clearly deposed that the Deputy Secretary had power to accord sanction in his own right and when the order giving the sanction ex

20

Major E. G. Barsay v. The State Of Bombay 1961 der was defective as it was not expressed to be in the name of the Governor within the meaning of Art. 166(1) of the Constitution and accordingly was not protected by cl. (2) of the said Article. Adverting to this contention, Bose, J., speaking for the Court, said at p. 678: In our opinion, the Constitution does not require a magic incantation which can only be expressed in a set formula of words. What we have to see is whether the substance of the requirements is there. This judgment lays down that we must look at the substance of the order. On a construction of the order that was in question in that case, having regard to the denition of State Government in the General Clauses Act and the concluding words By order of the Governor of Bombay, the Court came to the conclusion that the order was expressed to have been taken in the name of the Governor. In Dattatreya Moreshwar Pangarkar v. The State of Bombay (2), an (1) [1952] S.C.R. 674.(2) [1952] S.C.R. 612. order made under the Preventive Detention Act, 1950, was questioned on the ground that it did not comply with the provisions of Art. 166(1) of the Constitution. There the order was made in the name of the Government and was signed by one Kharkar for the Secretary to the Government of Bombay, Home Department. Das, J., as he then was, after referring to the decision of the Federal Court in J. K. Gas Plant Manufacturing Co., (Rampur) Ltd. v. The KingEmperor (1) observed at p. 625 thus:

facie shows that he did not authenticate it by order of the President, we must hold that he gave the sanction in his own right. In this context, an argument based upon Art. 77 of the Constitution may be noticed. Under cl. (1) of Art. 77, all executive actions of the Government of India shall be expressed to be taken in the name of the President; and under cl. (2) thereof, orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specied in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. Under the General Clauses Act, the expression President means the Central Government. It is, therefore, argued that as the order issuing the sanction was not expressed to be made in the name of the President, the sanction was void. This Article and the corresponding Article viz., Art. 166, were subject to judicial scrutiny by this Court. The validity of an order of detention made by the Bombay Government under s. 3 of the Preventive Detention Act, 1950, was considered in The State of Bombay v. Puru- shottam Jog Naik (1). There, in the body of the order the satisfaction was shown to be that of the Government of Bombay; at the bottom of the order the Secretary to the Government of Bombay, Home Department, signed it under the words By order of the Governor of Bombay. It was contended that the or-

21 Strict compliance with the requirements of article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself. The learned Judge came to the above conclusion on the ground that the provisions of the said article are only directory and not mandatory. This decision was followed by this Court in P. Joseph John v. The State of Travancore-Cochin (2). There the show cause notice issued under Art. 311 of the Constitution was impugned on the ground that it was contrary to the provisions of Art. 166 thereof. The notice was issued on behalf of the Government and was signed by the Chief Secretary to the Government, who had under the rules of business framed by the Rajpramukh the charge of the portfolio of service and appointments at the Secretariat level in the State. This Court held that the said notice was issued in substantial compliance with the directory provisions of Art. 166 of the Constitution. The latest decision on the point is that in Ghaio Mall & Sons v. The State of Delhi(1). There the question was whether the com- munication issued by the Under Secretary, Finance, Government of Delhi State, had complied with the provisions of Art. 166 of the Constitution. This Court held that it did not comply with the provisions of (1) (1947) F.C.R. 141. (2) [1935] 1 S.C.R. 1011. 223 Art 166 of the Constitution and also found that the said order was not, as a matter of fact, made by the Chief Commissioner. When the decision in Dattatreya Moreshwar Pangarkars case (1) was cited this Court observed at p. 1439 thus: In that case there was ample evidence on the record to prove that a decision had in fact been taken by the appropriate authority and the inrmity in the form of the authentication did not vitiate the order but only meant that the presumption could not be availed of by the State. The foregoing decisions authoritatively settled the true interpretation of the provisions of Art. 166 of the Constitution. Shortly stated, the legal position is this: Art. 166(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of Art. 166(1), it can be established by evidence aliunde that the order was made by the appropriate authority. If an order is issued in the name of the Governor and is duly authenticated in the manner prescribed in r. (2) of the said Article, there is an irrebuttable presumption that the order or instrument is made or executed by the Governor. Any noncompliance with the provisions of the said rule does not invalidate the order, but it precludes the drawing of any such irrebuttable presumption. This does not prevent any party from proving by other evidence that as a matter of fact the order has been made by the appropriate authority.

22

Major E. G. Barsay v. The State Of Bombay 1961 in the present case. Section 5A of the Prevention of Corruption Act, 1950, on which reliance is placed reads:

Article 77 which relates to conduct of business of the Government of India is couched in terms similar to those in Art. 166 and the same principles must govern the interpretation of that provision.

Notwithstanding anything contained in the Code of Criminal Procedure., 1898, no police ocer below If that be the legal position, in the rankthe instant case the impugned or(a) in the presidency towns of der does not comply with the pro- Madras and Calcutta, of an assistant visions of Art. 77(2) of the Consti- commissioner of police, tution and, therefore, it is open to (b)in the presidency town of the appellant to question the validBombay, of a superintendent of poity of the order on the ground that it lice, and was not an order made by the Pres(c) elsewhere, of a deputy superident and to prove that it was not intendent of police, shall investigate made by the Central Government. But this legal position does not help any oence punishable under section the appellant, for as we have pointed 161, section 165 or section 165A of out, the uncontroverted evidence of the Indian Penal Code or under subP. W. 36, an Assistant in the Home section (2) of section 5 of this Act, Ministry, which was accepted by the without the order of a presidency High Court and the Special Judge, magistrate or a magistrate of the rst establishes that the order was made class, as the case may be, or make by the Deputy Secretary on behalf of any arrest thereof without a warrant: the Central Government in exercise Provided that a police ocer of of the power conferred on him un- the Delhi Special Police Establishder the rules delegating such power ment, not below the rank of an Into him. spector of police, who is specially auThe next contention challenges thorized by the Inspector-General of the legal competence of Jog, an In- Police of that Establishment may, if spector of Police in the Delhi Spe- he has reasons to believe that, on accial Police Establishment, to make count of the delay involved in obtainthe investigation. In his evidence Jog ing the order of a magistrate of the stated that the Inspector General of rst class, any valuable evidence rePolice, Special Police Establishment, lating to such oence is likely to be New Delhi, empowered him under s. destroyed or concealed, investigate 5A of the Prevention of Corruption the oence without such order; but Act to investigate the oences men- in every case where he makes such intioned therein without the sanction vestigation, the police ocer shall, as of any magistrate. The question is soon as may be, send a report of the whether he can make an investigation same to a magistrate of the rst class, in regard to the oences alleged to together with the circumstances in have been committed by the accused which the investigation was made.

23 The proviso governs the present case. Jog, who was specially authorized by the Inspector-General of Police under s. 5A of the Prevention of Corruption Act to investigate the oences mentioned therein being an Inspector of Police, was certainly empowered to make an investigation within the meaning of that proviso. But what is contended is that the power to investigate under that proviso is hedged in by two conditions, namely, that the said ocer should have reasons to believe that on account of delay involved in obtaining the order of a magistrate of the rst class, any valuable evidence relating to such oence is likely to be destroyed or concealed, and subsequently he should have sent a report of the same to a magistrate of the rst class together with the circumstances in which the investigation was made. The High Court on a consideration of the evidence found that the said two conditions have not been complied with by Jog. On that nding, the question arises whether the trial of the accused by the Special Judge was vitiated by the non- compliance with the aforesaid two conditions. This Court in H. N. Rishbud & Inder Singh v. The State of Delhi (1) held that s. 5(4) and proviso to s. 3 of the Prevention of Corruption Act, 1947, and the corresponding s. 5A of the Prevention of Corruption (Second Amendment) Act, 1952 (LIX of 1952) are mandatory and not directory and that an investigation conducted in violation thereof is illegal. In the same decision this Court also pointed out that the illegality committed in the course of investigation did not aect the competence and jurisdiction of the court for trial and where cognizance of the case had in fact been taken and the case had proceeded to termination the validity of the preceding investigation did not vitiate the result unless miscarriage of justice of been caused thereby. The question is whether in the present case the investigation made by the Inspector duly authorized by the InspectorGeneral of Police to investigate under s. 5A of the Prevention of Corruption Act, without complying with the two conditions laid down in the proviso to that section, had caused any prejudice to the accused. The High Court, after considering the entire evidence, found that the alleged irregularity would not justify the conclusion that the non- observance of the conditions prescribed in the proviso to s. 5A of the Prevention of Corruption Act had occasioned any failure of justice. Learned counsel has taken us through dierent steps in the investigation made by the said ocer, and we have no reason to differ from the conclusion arrived at by the High Court. The validity of the investigation made by Jog was questioned yet on another ground. It was said that he had not obtained the requisite permission of the State Government under s. 6 of the Delhi Special Police Establishment Act, 1946, before he started the investigation. Section 5 of that Act authorizes the Central Government to extend to any area the powers and jurisdiction of members of the Delhi Special Police

24

Major E. G. Barsay v. The State Of Bombay 1961 jurisdiction in that area, though the State Government can do so. When a State Government can authorize a single ocer to exercise the said jurisdiction, we do not see any legal objection why it could not authorize the entire force operating in that area belonging to that Establishment to make such investigation. The authorization led in this case suciently complies with the provisions of s. 6 of the Delhi Special Police Establishment Act, 1946, and there are no merits in this contention. The next contention centres round the framing of charges. The charges framed in this case have been fully extracted in the earlier part of the judgment. The rst objection is that the Special Judge had no jurisdiction to try the accused on charges involving oences other than those mentioned in s. 6(1) of the Criminal Law (Amendment) Act, 1952. This argument ignores s. 7(2)(b) of the Act which says, When trying any case, a special judge may also try any oence other than an oence specied in section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial. The objection, therefore, has no force. The next criticism is that there can be no legal charge of a conspiracy between accused Nos. 1 to 3, who are public servants, and accused Nos. 4 to 6, who are not public servants, in respect of oences under the Prevention of Corruption Act for the reason that they can only be committed by public servants. But this contention ignores the scope of the oence of

Establishment for the investigation of any oences or classes of oences specied in a notication under s. 3 thereof. But s. 6 of that Act says that nothing contained in s. 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railways area, without the consent of the Government of that State. The Government of Bombay, Home Department, addressed a letter to the Government of India, dated August 13,1949 and it was stated therein, .....I am directed to state that this Government re-arms, with reference to section 6 of the Delhi Special Police Establishment Act, 1946, the consent given for an indenite period under its letter No. 5042/4-D, dated the 6th November 1946, to the members of the Delhi Special Police Establishment exercising powers and jurisdiction in the area of the not province of Bombay. It was contended before the High Court and it was repeated before us that the consent should have been given to every individual member of the Special Police Establishment and that a general consent would not be a good consent. We do not see any force in this argument. Under a. 6 of the Delhi Special Police Establishment Act, no member of the said Establishment can exercise powers and jurisdiction in any area in a State without the consent of the Government of that State. That section does not lay down that every member of the said Establishment should be specically authorized to exercise

25 criminal conspiracy. Section 120A of the Indian Penal Code denes criminal conspiracy and under that definition, When two or more persons agree to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. The gist of the oence is an agreement to break the law. The parties to such an agreement will be guilty of criminal con- spiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the oence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under s. 43 of the Indian Penal Code, an act would be illegal if it is an oence or if it is prohibited by law. Under the rst charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the oences has no relevancy in considering the question whether the oence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual oences all of them may not be liable. The second objection is in regard to the second charge. It is said that accused Nos. 4, 5 and 6 could not be charged with having committed an oence under s. 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, as they are not public servants. The learned Judges of the High Court accepted the said legal position as correct, but held that they could be convicted under s. 109 of the Indian Penal Code, read with cls. (c) and (d) of s. 5(1) of the Prevention of Corruption Act. But on the merits they convicted accused No. 1 under s. 5(2) of the Prevention of Corruption Act, instead of under the said section read with s. 34 of the Indian Penal Code, and they convicted accused No. 4 under s. 109 of the Indian Penal Code, read with s. 5(1)(c) and (d) of the Prevention of Corruption Act, instead of under s. 5(2) of the said Act, read with s. 34 of the Indian Penal Code. As accused No. 4 was dead before the appeal was led in this Court, nothing need be said about the legality of his conviction. The only outstanding question, therefore, is whether the High Court was justied in convicting accused No. 1 under s. 5(2) of the Prevention of Corruption Act instead of under the said section read with s. 34 of the Indian Penal Code. To such a situation, s. 537 of the Criminal Procedure Code applies and under that section, no sentence passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the charge, including any misjoinder of charges, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. This Court in W. Slaney v. State of M. P. (1) held that in adjudging a question of prejudice the concern of the court should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the im- pugned facts sought to be established against him were

26

Major E. G. Barsay v. The State Of Bombay 1961 exceptional circumstances. Learned counsel for the appellant made a serious and sustained attempt to have the said nding reopened by advancing arguments under the following three heads: (1) The High Court has failed to draw correct inferences from the facts found by it and has also drawn wrong conclusion ignoring probabilities arising in a given situation; (2) the High Court has ignored the distinction between an untruthful witness and a truthful witness, whose evidence under the rule of prudence could be accepted only in so far as it is corroborated in material particulars, and the High Court, having disbelieved Lawrences evidence in regard to important incidents in his narration, should have rejected his evidence in toto; and if it had done so, the question of corroboration would not arise for consideration; and (3) the independent pieces of evidence accepted by the High Court did not corroborate the evidence of Lawrence in material particulars implicating him in the crime.

explained to him clearly and fairly and whether he was given a full and fair chance to defend himself. Judged by the said test it is manifest that accused No. I cannot be said to have been prejudiced by his conviction under s. 5(2) of the Prevention of Corruption Act, for accused No. I had clear knowledge from the inception that the prosecution case against him was that he committed an oence under s. 5(2) of the Prevention of Corruption Act and that he had every opportunity, and indeed he made a sustained eort throughout the trial to defend himself against the said accusation. It is not possible to hold in this case that there was any failure of justice by reason of the High Court convicting him for a substantive offence under s. 5(2) of the said Act.

So far as the third head of the charge is concerned, the High Court held that it was bad in regard to accused No. 1. Accused No. 1, therefore, cannot obviously have any grievance with that nding. For the foregoing reasons, we hold that there are no merits in the contentions The rst argument is a direct atraised by learned counsel on the basis tack on the correctness of the nding of the charges framed in this case. of fact arrived at by the High Court. Now we come to the merits of the As we have said, the practice of this case. So far as the appellant is con- Court in an appeal under Art. 136 cerned, both the Special Judge and, of the Constitution is not to allow on appeal the High Court accepted such an attack except in exceptional the evidence of Lawrence, as it was circumstances. Learned counsel adcorroborated in material particulars dressed at some length on this aspect by other acceptable evidence. They of the case, and after hearing him, we concurrently found that the appel- were satised that there were no such lant was a party to the conspiracy. exceptional circumstances present in The nding is one of fact, and the this case. Our reluctance to depart practice of this Court is not to inter- from the usual practice is hightened fere with such nding except under by the fact that in the present case,

27 so far as the appellant is concerned, unreliable witness. there are concurrent ndings of fact Relying upon these observations, by both the courts. learned counsel contends that in the The second argument is a subtle present case the High Court did not attempt to reopen the ndings of fact accept the evidence of the approver from a dierent perspective. This ar- in regard to important events and gument is based upon a decision of therefore the High Court should have this Court in Sarwan Singh v. The rejected his evidence without further State of Punjab (1). In that case, attempting to see whether there was Gajendragadkar, J., speaking for the any corroboration in material parCourt, observed at p. 959 thus: ticulars in other evidence. Before But it must never be forgotten we consider this argument in the that before the Court reaches the context of the facts of the present stage of considering the question of case, we would like at the outset corroboration and its adequacy or to make some general observations. otherwise, the rst initial and essen- This Court could not have intended tial question to consider is whether to lay down that the evidence of even as an accomplice the approver an approver and the corroborating is a reliable witness. If the answer to pieces of evidence should be treated this question is against the approver in two dierent compartments, that then there is an end of the matter, is to say, the Court shall have rst to and no question as to whether his consider the evidence of the approver evidence is corroborated or not falls dehors the corroborated pieces of evto be considered. In other words, idence and reject it if it comes to the the appreciation of an approvers ev- conclusion that his evidence is unidence has to satisfy a double test. reliable; but if it comes to the conclusion that it is reliable then it will Then the learned Judge prohave to consider whether that eviceeded to state, We have carefully dence is corroborated by any other read the judgment delivered by the evidence. This Court did not lay High Court but we nd no indication down any such proposition. In that in the whole of the judgment that the case it happened that the evidence learned Judges considered the charof the approver was so thoroughly acter of the approvers evidence and discrepant that the Court thought reached the conclusion that it was that he was a wholly unreliable witthe evidence given by a reliable witness. But in most of the cases the ness. said two aspects would be so interLater on the learned Judge fur- connected that it would not be possither stated, ........ the evidence of ble to give a separate treatment, for the approver is so thoroughly dis- as often as not the reliability of an crepant that it would be dicult to approvers evidence, though not exresist the conclusion that the ap- clusively, would mostly depend upon prover in the present case is a wholly the corroborative support it derives

28

Major E. G. Barsay v. The State Of Bombay 1961 cause it is just possible that in some cases an accomplice may give evidence because he may have a feeling in his own mind that it is a condition of his pardon to give that evidence, but no such consideration obtains in the case of the evidence of a person who is not a guilty associate in crime but who invites the police to lay a trap. All the same, as the person who lodges information with the police for the purpose of laying a trap for another is a partisan witness interested in seeing that the trap succeeds, it would be necessary and advisable to look for corroboration to his evidence before accepting it. But the degree of corroboration in the case of a tainted evidence of an accomplice would be higher than that in the case of a partisan witness. In our opinion, all these decisions would clearly establish that it would not be safe to rely on the evidence of Lawrence who is admittedly a decoy or trap witness, without his testimony being corroborated from independent sources. Even Mr. Amin, learned special counsel on behalf of the State asked the courts to proced to examine the evidence of Lawrence on the basis that he was a decoy or trap witness. We are denitely of opinion that both the courts had approached the evidence of Lawrence from a correct standpoint. Though Lawrence was not an approver, he was certainly an interested witness in the sense that he was interested to see that the trap laid by him succeeded. He could at least be equated with a partisan witness and it would not be admissible to rely upon such evidence without

from other unimpeachable pieces of evidence. We must also make it clear that we are not equating the evidence of Lawrence with that of an approver; nor did the Special Judge or the High Court put him exactly on that footing. The learned Special Judge in his judgment observed thus: He (Lawrence) is obviously decoy or spy and agent provocateur and his evidence will have, therefore, to be approached with great caution and much weight cannot be attached to it unless it is corroborated by other independent evidence and circumstances in the case.... Not being tainted evidence, it would not suffer from a disability of being unworthy of acceptance without independent corroboration. But being interested evidence, caution requires that there should be corroboration from an independent source before its acceptance. To convict an accused on the tainted evidence of an accomplice is not illegal but it is imprudent; to convict an accused upon the partisan evidence of a person at whose instance a trap is laid by the police is neither illegal nor imprudent but inadvisable therefore, be accepted and relied upon, only if it is corroborated by other independent evidence and circumstances in the case. The learned Judges of the High Court practically adopted the same attitude in the manner of their approach to the evidence of Lawrence. The learned Judges observed: To convict an accused upon the partisan evidence of a person at whose instance a trap is laid by the police is neither illegal nor imprudent, be-

29 corroboration. It would be equally clear that his evidence was not a tainted one, but it would only make a dierence in the degree of corroboration required rather than the necessity for it. Approaching the case from this perspective-in our view that is a correct one-the learned Special Judge came to the following conclusion: There was no compelling necessity for Shri Lawrence to concoct a false story against Major Barsay and the other accused. It is, therefore, clear that prima facie there is no good ground to discard the evidence of Shri Lawrence. Then the learned Special Judge considered the corroborative pieces of evidence and nally held that Lawrences evidence had been corroborated in material particulars in respect of the appellant. Likewise, the learned Judges of the High Court considered the evidence of Lawrence along with that of other acceptable witnesses. Though the learned Judges of the High Court rejected the evidence of Lawrence in regard to some events either because that part of the evidence was not consistent with the other parts of his evidence or with the evidence of some disinterested witnesses, they did not see any reason to reject the story given by Lawrence as a myth or a concoction. After considering the evidence, the learned Judges concluded, record justies the nding of the trial Court that there was a conspiracy as alleged by the prosecution to smuggle goods out of the Dehu Vehicles Depot. Having accepted broadly the version given by Lawrence, the High Court took the case of each of the accused and held that in the case of accused Nos. 1 to 4 Lawrences evidence had been amply corroborated by other evidence in all material particulars. In these circumstances, we cannot accept the contention of learned counsel for the appellant that the High Court had rejected the evidence of Lawrence. As we have said, the High Court did not accept some parts of the evidence of Lawrence, but it had broadly accepted the version given by Lawrence in regard to the conspiracy and the manner in which the articles were smuggled out of the Depot. If some of the accused were acquitted it was because there were some discrepancies in the evidence of Lawrence in respect of them and particularly because that part of his evidence was not corroborated in material particulars by other evidence. But in the case of the appellant the High Court accepted the evidence given by Lawrence and convicted the appellant because that version was corroborated in all material particulars by the evidence of other disinterested witnesses. We, therefore, reject this contention.

We, therefore, accept This leads us to the considerLawrences evidence, nd that his ation of the only remaining quesstory is probable and true and we tion, namely, whether Lawrences evalso nd that the evidence on the idence is corroborated in material

30

Major E. G. Barsay v. The State Of Bombay 1961 ingh from Unit Sub Park to the Kit Stores. The prosecution has established by clear evidence that Major Barsay was instrumental in posting Kochhar, accused No. 2, to the Kit Stores after asking him to cut short his leave which was for, a period of two months. It was also established by evidence that Major Barsay brought Avatarsingh to the Kit Stores. Though these facts might not have implicated Kochhar and Avatarsingh, they certainly corroborate the evidence of Lawrence that Major Barsay told him that these transfers were made to facilitate the implementation of the scheme. Lawrence stated in his evidence that Major Barsay told him on December 3, 1954, that he had chalked out a detailed scheme in consultation with Kochhar to transfer all the valuable parts lying in Shed No. 48 to Shed No. 17 for the purpose of itemization, and that as soon as the Board of Ocers was appointed there would be a shuttle of trucks moving from Shed No. 48 to Shed No. 17 and vice versa and nobodys suspicion would be roused if one or two trucks were taken away out of the main gate during the course of these movements of the trucks between these two sheds. There is evidence to show that a Board of Ocers was appointed to do the work of itemization and that one Captain Mehendiratta was appointed the President of that Board. Lawrence said that Major Barsay told him that he would show certain boxes from Shed No. 48 to Col. Rao and tell him that they did not contain many

particulars implicating the appellant by other acceptable evidence. The corroboration must be by independent testimony conrming in some material particulars not only that the crime was committed but also that the appellant committed it. It is not necessary to have corroboration of all the circumstances of the case or every detail of the crime. It would be sufcient if there was corroboration as to the material circumstances of the crime and of the identity of the accused in relation to the crime. These principles have been settled in R. v. Baskerville, (1) which has rightly been considered as the locus classicus of the law of approvers evidence and has been followed by courts in India. Looking from that aspect, both the courts have found corroboration from disinterested witnesses in material particulars implicating the appellant in the crime. Lawrence gave a detailed account of the unfurling of the scheme of fraud from the date he met Major Barsay on December 2, 1954, upto December 20, 1954, when the oending truck was obstructed by the police from proceeding further on its onward journey. Lawrence stated in his evidence that on December 3, 1954, Major Barsay told him, inter alia, that he had chalked out a detailed scheme in consultation with Kochhar to transfer all the valuable parts lying in Shed No. 48 to Shed No. 17 for the purpose of itemization, that he had already recalled Kochhar from leave of absence prior to its expiry and posted him in the Kit Stores, and that he had also posted Avatars-

31 of the articles which they were said to contain, so that Col. Rao also would not be surprised at the nal result of the itemization. It has been established by other evidence that on December 8, 1954, Major Barsay went to Col. Rao and took him to Shed No. 48 and showed him the military stores that were lying there awaiting itemization. At about midday on December 18, 1954, Lawrence stated, Major Barsay met him at the Depot and told him that he and other conspirators would meet at his residence to discuss about the scheme. It is in evidence that on the 18th the meeting was held as deposed to by Lawrence. Evidence of Col. Sindhi and Capt. Sharma, which was accepted by both the courts, establishes this fact. The same evidence also establishes that at that meeting Major Barsay, Saighal, Lawrence and two Sikhs were present, and though the two Sikhs were not identied to be accused Nos. 2 and 3, the presence of accused Nos. 1 and 4 and two Sikhs corroborates the evidence of Lawrence. Lawrence stated that at that meeting Major Barsay undertook to do certain things. According to Lawrence Major Barsay told the conspirators that he would detail a driver of his condence in a vehicle for executing the plan, that he would send Kochhar to Shed No. 17, order Kochhar to transfer the itemized goods from Shed No. 17 to Shed No. 26 ostensibly for the purpose of preservation, that he would call Major Nag on Monday (December 20) and in his presence he would order Lawrence to go to the D.O.D. to bring the re hoses. The evidence of Havaldar Pillay, Godse, Suryawanshi and G. K. Pillay establishes the fact that Barsay secured one truck and a driver for shifting of the stores from Shed No. 17 to Shed No. 26. The evidence of Jamadar Lachmansing proves that Major Barsay went to Shed No. 17 and ordered the shifting of stores from there to Shed No. 26 for conditioning and preservation. The evidence of Major Nag establishes that in his presence Major Barsay sent for Lawrence and asked the latter to go to the D.O.D. and expedite the return of the re hoses. These established facts certainly corroborate the evidence of Lawrence as to what took place on the 18th and also his evidence that Major Barsay gave the said instructions to him in the presence of Major Nag. The evidence of Lawrence that Major Barsay told him and the other conspirators that there should be two loadings of the trucks at Shed No. 17, the rst loading to carry innocuous articles and the second the articles intended to be smuggled out of the Depot, was also corroborated by disinterested evidence. Both the courts accepted that evidence. Then there is evidence of the movements of Major Barsay during the crucial time when the smuggling out of the goods was scheduled to take place. The evidence of Jogendrasingh, Rambhan and Wagh shows that at about 1-10 p.m. on December 20, 1954, Major Barsay was rather worried and was moving to and

32

Major E. G. Barsay v. The State Of Bombay 1961 were being transported into the civilian truck when they came on the scene. All this evidence supports the version of Lawrence when he said that Major Barsay gave the necessary instructions as to the manner of transport of the military goods to the civilian truck. The said facts found by both the courts below implicate accused No. 1 in the matter of the preparation, laying down of the details of implementation and the actual carrying out of the scheme of smuggling the goods out of the Depot through all the stages and thereby establish that the appellant was the main conspirator and the brain behind the conspiracy. We cannot, therefore, say that the version given by Lawrence implicating accused No. 1 is not corroborated by other independent evidence. It follows that the conviction of the appellant by the High Court is correct. This leads us to the appeal led by the State against the judgment of the High Court acquitting accused Nos. 2 and 3 on the ground that the evidence of Lawrence implicating them in the oence was not corroborated in material particulars by independent evidence. In this appeal also we have not allowed learned counsel for the State to canvass the correctness of the nding arrived at by the High Court on the appreciation of the evidence in the case. Taking the ndings arrived at by the High Court, we nd it dicult to take a dierent view from that taken by the High Court. In regard to accused No. 2 the High Court arrived at the following ndings: (1)

fro near the main gate because he was suspecting that somebody was watching their movements. Jamadar Jogendrasingh deposed that Major Barsay asked him to tell Lawrence, not to do it as there was something suspicious about it. Major Nag also supported this version. These nervous movements of Major Barsay certainly corroborate the evidence of Lawrence that he was the moving spirit in the conspiracy. The evidence of Lawrence that the duty of going along with the truck was allotted to his part in the conspiracy is corroborated by the circumstances establisbed by the evidence that Lawrence got into the truck near Shed No. 17 and went in the truck to its destination. The evidence of Lawrence regarding how Major Barsay directed the smuggling of the goods out of the Depot was corroborated by other independent evidence. There is evidence of Jog and Diwate to show that on December 19, in the morning, Saighal showed the spot where the transshipment was to take place to Lawrence. There is the evidence of Darekar to show that a truck was arranged and that he was asked by Yakubsaheb to take his truck to Talegaon for the transport of iron goods. There is also the evidence of Darekar and Hatnolkar to establish that accused No. 4 was waiting near the cemetry on the Talegaon-Dabhade Road and that Darekar was also instructed by Saighal to park the lorry in a particular way. Then there is the evidence of the police ocers that the goods brought in the military lorry

33 There is no evidence or allegation on the record to show that there was any understanding between him and Major Barsay before he left on two months leave. (2) There is no evidence that Kochhar, accused No. 2, met Lawrence on December 6, 1954. (3) Accused No. 2 moved Major Barsay by his letter (Ex. 151) to convene the itemization board. (4) Prior to the appointment of the board and its constitution, accused No. 2 ordered the shifting of the specialist boxed kits from Shed No. 48 to Shed No. 17, but this was done under Major Barsays instructions. (5) Accused No. 2 was present when Fernandez was ordered by Major Barsay to complete the identication of the rst set before December 13, even by working on Sunday the 12th December, and in that connection a written order was issued by him on December 11. (6) On December 12 Lawrence persuaded accused No. 2 to go in for two insurance policies. (7) Though according to Lawrence, Kochhar undertook to prepare a bogus voucher and to be at the Depot at the opening hours on Monday the 20th to prepare that voucher in the oce of Lawrence, it is admitted that Kochhar refused to issue the voucher. (8) Accused No. 2 was present at Shed No. 17 when Major Barsay issued orders to shift the stores to Shed No. 26. And (9) Accused No. 2 accompanied Major Barsay to Shed No. 19 in the morning and lie was present when the truck was being loaded for the second trip at Shed No. 17. The High Court found that the said circumstances, though some of them might raise a suspicion, did not implicate accused No. 2 in the oence and they are consistent also with his innocence. Though some of the facts give rise to a suspicion, we cannot say that the High Court was wrong in holding that the said facts did not corroborate the evidence of Lawrence in implicating the said accused in the oence. Now coming to accused No. 3, the High Court found the following facts based on the evidence other than that of Lawrence: (1) Avatarsing, accused No. 3, was transferred from Unit Sub Park to Kit Stores. (2) Accused No. 3 was a party to the shifting of stores from Shed No. 48 to Shed No. 17 even before the appointment of the board of itemization. (3) Though Lawrence stated that Avatarsing expressed his inability to push the scheme on account of Capt. Kapoors constant vigilance and visits to Shed No. 17, Lawrence had admitted that his rst contact with Avatarsing was in the noon of 18th December. (4) There is no evidence that Avatarsing attended the meeting at Major Barsays on the 18th. (5) Avatarsing loaded the truck for the rst trip and also for the second trip, and in loading the second trip he used the usual laborers and two outside workers. (6) After the truck was loaded, he asked Rambhan to take the truck to D. 0. D. under instructions from the superior ocers. (7) The words D. O. D. in Ex. 42, the duty slip, were not entered by Avatarsing. The High Court held that the said facts found on independent evidence did not implicate the said accused in the oence

34

Major E. G. Barsay v. The State Of Bombay 1961 Lawrence in implicating the accused in the oence. We, therefore, accept the nding of the High Court in regard to accused Nos. 2 and 3. In the result both the appeals fail and are dismissed. Appeals dismissed.

and they were all consistent with his innocence. Though some of the ndings give rise to suspicion we cannot say that the High Court was wrong in holding that the said facts found did not corroborate the evidence of

Chapter 2

Ram Sarup v. The Union Of India 1963

Ram Sarup v. The Union Of India And Another on 12 December, 1963 Equivalent citations: 1965 AIR 247, 1964 SCR (5) 931 Bench: Dayal, Raghubar PETITIONER: RAM SARUP v. RESPONDENT: 1965 AIR 247 1964 SCR (5) 931 CITATOR INFO : R 1971 SC 500 (19) R 1971 SC1120 (17) R 1979 SC1588 (14) R 1982 SC1413 (15,17) RF 1983 SC 658 (7) ACT:

Army Act (XLVI of 1950), ss. THE UNION OF INDIA AND 125, 126 and 164-Scope of- ConstituANOTHER tion of India, 1950, Art. 33-Eect on DATE OF JUDGMENT: fundamental rights-s. 125 of Army 12/12/1963 Act if violative of Art. 14 of the ConBENCH: stitution. DAYAL, RAGHUBAR BENCH: HEADNOTE: The General Court Martial sentenced the petitioner, a sepoy, to DAYAL, RAGHUBAR death under s. 69 of the Army Act SINHA, BHUVNESHWAR read with s. 302 of the Indian PeP.(CJ) nal Code for shooting dead two seWANCHOO, K.N. poys and a Havildar. The Central AYYANGAR, N. RAJAGOPALA Government conrmed the sentence. The petitioner led writs of habeas MUDHOLKAR, J.R. corpus and certiorari for setting aside CITATION: the orders of the Court Martial and

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Ram Sarup v. The Union Of India 1963

the Central Government and for his tution, that provision does not, on release. that account, become void, as it must be taken that Parliament has in exHeld: ercise of its power under Art. 33 of (i) The petitioner made no rethe Constitution made the requisite quest for being represented at the modication to aect the respective court martial by a counsel of his fundamental right. (v) The provichoice; consequently no such request sions of s. 125 of the Act are not diswas refused, and that there has been criminatory and do not infringe the no violation of the fundamental right provisions of Art. 14 of the Constiof the petitioner to be defended by a tution. counsel of his choice. (vi) The discretion to be exer(ii) There has been no noncised by the Military Ocer specicompliances of the provisions of S. ed in s. 125 of the Act as to the 132(2) of the Act. In view of the trial of accused by Court Martial or provisions of rr. 45, 46, 61(2) and by an ordinary court, cannot be said 62 of the Army Rules, 1954, the peto be unguided by any other policy titioners statement, that the death laid down in the Act or uncontrolled sentence was voted by an inadequate by any authority. There could be a majority of the members of the Court variety of circumstances which may which can be considered to be a mere inuence the decision as to whether allegation, cannot be based on any the oender be tried by a Court Mardenite knowledge as to how the vottial or by ordinary criminal court and ing went at the consideration of the therefore becomes inevitable that the nding in pursuance of r. 61. (iii) discretion to make the choice as to Section 164 does not lay down that which court should try the accused the correctness of the order or senbe left to responsible Military otence of the Court Martial is always cers under whom the accused is servto be decided by two higher authoring. Those ocers are to be guided ities; it only provides for two remeby considerations of the exigencies of dies. The further petition can only the service, maintenance of discipline be made to the authority superior in the army, speedier trial, the nature to the authority which conrms the of the oence and the person against order of the Court Martial, and if whom the oence is committed. This there be no authority superior to the discretion is subject to the control of conrming authority, the question of the Central Government. remedy against its order does not (vii) According to s. 549 of arise. the Code of Criminal Procedure and (iv) Each and every provision of the rules thereunder, the nal choice the Army Act is a law made by Parabout the forum of the trial of a perliament and that if any such provison accused of a civil oence rests sion tends to aect the fundamental with the Central Government, whenrights under Part III of the Constiever there be dierence of opinion be-

37 tween a Criminal Court and Military authorities about the forum. The position under ss. 125 and 126 of the Army Act is also the same. ting aside the order dated January 12, 1963 of the General Court Martial and the order of the Central Government conrming the said ndings and sentence and for his release from JUDGMENT: the Central Jail, Tehar, New Delhi, ORIGINAL JURISDICTION: where he is detained pending execuPetition No. 166 of 1963. Under Artion of the sentence awarded to him. ticle 32 of the Constitution of India The contentions raised for the pefor the enforcement of fundamental titioner are: (1) That the provisions rights. of s. 125 of the Act are discriminaO.P. Rana, for the petitioner. tory and contravene the provisions of C.K. Daphtary, B.R.L. lyengar Art. 14 of the Constitution inasmuch and R.H. Dhebar for the respon- as it is left to the unguided discretion dents. of the ocer mentioned in that secDecember 12, 1963. The Judg- tion to decide whether the accused ment of the Court was delivered by person would be tried by a Court Martial or by a Criminal Court. (2) RAGHUBAR DAYAL J.Ram Sarup, petitioner, was a se- Section 127 of the Act which provides poy in 131 Platoon DSC, attached for successive trials by a Criminal to the Ordnance Depot, Shakurbasti. Court and a Court Martial, violates As a sepoy, he is subject to the Army the provisions of Art. 20 of the ConAct, 1950 (XLVI of 1950), hereinafter stitution as it provides for the prosecution and punishment of a person called the Act. for the same oence more than once. On June 13, 1962 he shot dead (3) The petitioner was not allowed two sepoys, Sheotaj Singh and Ad to be defended at the General Court Ram and one Havildar Pala Ram. He Martial by a legal practitioner of his was charged on three counts under choice and therefore there had been S. 69 of the Act read with s. 302 a violation of the provisions of Art. I.P.C. and was tried by the General 22(1) of the Constitution. (4) The Court Martial. On January 12, 1963 procedure laid down for the trial of the General Court Martial found him oences by the General Court Marguilty of the three charges and sential had not been followed inasmuch tenced him to death. as the death sentence awarded to The Central Government con- the petitioner was not passed with rmed the ndings and sentence the concurrence of at least two-thirds awarded by the General Court Mar- of the members of the Court. (5) tial to the petitioner. Thereafter, Section 164 of the Act provides two the petitioner has led this writ pe- remedies, one after the other, to a tition praying for the issue of a writ person aggrieved by any order passed in the nature of a writ of habeas by a Court Martial. Sub-s. (1) allows corpus and a writ of certiorari set- him to present a petition to the o-

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Ram Sarup v. The Union Of India 1963 tion but was made in the reply after the State had led its counter adavits in which it was stated that no such request for his representation by a legal practitioner had been made and that there had been no denial of his fundamental rights. We are of opinion that the petitioner made no request for his being represented at the Court Martial by a counsel of his choice, that consequently no such request was refused and that he cannot be said to have been denied his fundamental right of being defended by a counsel of his choice. In paragraph 9 of his petition he did not state that he had made a request for his being represented by a counsel of his choice. He simply stated that certain of his relatives who sought interview with him subsequent to his arrest were refused permission to see him and that this procedure which resulted in denial of opportunity to him to defend himself properly by engaging a competent civilian lawyer through the resources and help of his relatives had infringed his fundamental right under Art. 22 of the Constitution. If the petitioner had made any express request for being defended by a counsel of his choice, he should have stated so straight-forwardly in para 9 of his petition. His involved language could only mean that he could not contact his relations for their arranging a civilian lawyer for his defence. This negatives any suggestion of a request to the Military Authorities for permission to allow him representation by a practising lawyer and its refusal.

cer or authority empowered to conrm any nding or sentence of the Court Martial and sub-s. (2) allows him to present a petition to the Central Government or to any other authority mentioned in that sub-section and empowers the Central Government or the other authority to pass such order on the petition as it thinks t. The petitioner could avail of only one remedy as the nding and sentence of the Court Martial was conrmed by the Central Government. He, therefore, could not go to any other authority against the order of the Central Government by which he was aggrieved. It will be convenient to deal with the rst point at the end and take up the other points here. The petitioner has not been subjected to a second trial for the oence of which he has been convicted by the General Court Martial. We therefore do not consider it necessary to decide the question of the validity of s. 127 of the Act in this case. With regard to the third point, it is alleged that the petitioner had expressed his desire, on many, occasions, for permission to engage a practising civil lawyer to represent him at the trial but the authorities turned down those requests and told him that it was not permissible under the Military rules to allow the services of a civilian lawyer and that, he would have to defend his case with the counsel he would be provided by the Military Authorities. In reply,, it is stated that this allegation about the petitioners requests and their being turned down was not correct, that it was not made in the peti-

39 We therefore hold that there had been no violation of the fundamental right of the petitioner to be defended by a counsel of his choice, conferred under Art. 22(1) of the Constitution. Further, we do not consider it necessary to deal with the questions, raised at the hearing, about the validity of r. 96 of the Army Rules, 1954, hereinafter called the rules, and about the power of Parliament to delegate its powers under Art. 33 of the Constitution to any other authority. The next point urged for the petitioner is the sentence of death passed by the Court Martial was against the provisions of s. 132(2) of the Act inasmuch as the death sentence was voted by an inadequate majority. The certicate, signed by the presiding ocer of the Court Martial and by the Judge Advocate, and produced as annexure A to the respondents counter to the petition, reads: Certied that the sentence of death is passed with the concurrence of at least Two-third of the members of the Court as provided by AA Section 132(2). It is alleged by the petitioner that this certicate is not genuine but was prepared after his ling the writ petition. We see no reason to accept the petitioners allegations. He could not have known about the voting of the members of the General Court Martial. Rule 45 gives the Form of Oath or of Armation which, is administered to every member of a Court Martial. It enjoins upon him that he will not on any account at any time whatsoever disclose or discover the vote or opinion of any particular member of the Court Martial unless required to give evidence thereof by a Court of Justice or Court Martial in due course of law. Similar is the provision in the Form of Oath or of Armation which is administered to the Judge Advocate, in pursuance of r. 46. Rule 61 provides that the Court shall deliberate on its nding in closed Court in the presence of the Judge Advocate. It is therefore clear that only the members of the Court and the Judge Advocate can know how the members of the Court Martial gave their votes. The votes are not tendered in writing. No record is made of them. Sub-rule (2) of r. 61 provides that the opinion of each member of the Court as to the nding shall be given by word of mouth on each charge separately. Rule 62 provides that the nding on every charge upon which the accused is arraigned shall be recorded and, except as provided in the rules, shall be recorded simply as a nding o guilty or of not guilty. In view of these provisions, the petitioners statement, which can be considered to be a mere allegation, cannot be based on any denite knowledge as to how the voting went at the consideration of the nding in pursuance of r. 61. Further, there is no reason to doubt what is stated in the certicate which, according to the counteradavit, is not recorded in pursuance of any provision governing the proceedings of the Court Martial, and does not form Dart of any such proceedings. It is recorded for the satisfaction of the conrm-

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Ram Sarup v. The Union Of India 1963 thority against the order of conrmation. The further petition can only be to the authority superior to the authority which conrms the order of the Court Martial and if there be no authority superior to the conrming authority, the question of a remedy against its order does not arise. Section 164, does not lay down that the correctness of the order or sentence of the Court Martial is always to be decided by two higher authorities. It only provides for two remedies. Section 153 of the Act provides inter alia that no nding or sentence of a General Court Martial shall be valid except so far as it may be conrmed as provided by the Act and s. 154 provides that the ndings and sentence of a General Court Martial may be conrmed by the Central Government or by any ocer empowered in that behalf by warrant of the Central Government. It appears that the Central Government itself exercised the power of conrmation of the sentence awarded to the petitioner in the instant case by the , General Court Martial. The Central Government is the highest authority mentioned in sub-s. (2) of s. 164. There could therefore be no occasion for a further appeal to any other body and therefore no justiable grievance can be made of the fact that the petitioner had no occasion to go to any other authority with a second petition as he could possibly have done in case the order of conrmation was by any authority subordinate to the Central Government. The Act itself provides that the Central Government is to conrm the ndings and sentences of General Courts Martial and therefore

ing authority. The certicate is dated January 12, 1963, the date on which the petitioner was convicted. The adavit led by Col. N.S. Bains, Deputy Judge Advocate General, Army Headquarters, New Delhi, contains a denial of the petitioners allegation that the certicate is a false and concocted document and has been made by the authorities after the ling of the writ Petition. We see no reason to give preference to the allegations of the petitioner over the statement made by Col. Bains in his adavit, which nds support from the contents of Exhibit A signed by the presiding ocer of the Court.Martial and the Judg-Advocate who could possibly have no reason for issuing a false certicates We therefore hold that there had been no noncompliance of the provisions of s. 132(2) of the Act. Next we come to the fth point. It is true that s. 164 of the Act gives two remedies to the person aggrieved by an order, nding or sentence of a Court Martial, they being a petition to the authority which is empowered to conrm such order, nding or sentence and the petition to the Central Government or some other ocer mentioned in sub-s. (2), after the order or sentence is conrmed by the former authority. The nal authority to which the person aggrieved by the order of the Court Martial can go is the authority mentioned in subs. (2) of s. 164 and if this authority happens to be the conrming authority, it is obvious that there could not be any further petition from the aggrieved party to any other higher au-

41 could not have contemplated, by the provisions of s. 164, that the Central Government could not exercise this power but should always have this power exercised by any other ocer which it may empower in that behalf by warrant. We therefore do not consider this contention to have any force. Lastly, Mr. Rana, learned counsel for the petitioner, urged in support of the rst that in the exercise of the power conferred on Parliament under Art. 33 of the Constitution to modify the fundamental rights guaranteed by Part 111, in their application to the armed forces, it enacted s. 21 of the Act which empowers the Central Government, by notication, to make rules restricting to such extent and in such manner as may be necessary, the right of any person with respect to certain matters, that these matters do not cover the fundamental rights under Arts. 14, 20 and 22 of the Constitution, and that this indicated the intention of Parliament not to modify any other fundamental right. The learned Attorney-General has urged that the entire Act has been enacted by Parliament and if any of the provisions of the Act is not consistent with the provisions of any of the articles in Part III of the Constitution, it must be taken that to the extent of the inconsistency Parliament had modied the fundamental rights under those articles in their application to the person subject to that Act. Any such provision in the Act is as much law as the entire Act. We agree that each and every provision of the Act is a law made by Parliament and that if any such provision tends to aect the fundamental rights under Part III of the Constitution, that provision does not, on that account, become void, as it must be taken that Parliament has thereby, in the exercise of its power under Art. 33 of the Constitution, made the requisite modication to aect the respective fundamental right. We are however of opinion that the provisions of s. 125 of the Act are not discriminatory and do not infringe the provisions of Art. 14 of the Constitution. It is not disputed that the persons to whom the provisions of s. 125 apply do form a distinct class. They apply to all those persons who are subject to the Act and such persons are specied in s. 2 of the Act. The contention for the petitioner is that such persons are subject to be tried for civil oences i.e., oences which are triable by a Criminal Court according to s. 3 (ii) of the Act, both by the Courts Martial and the ordinary Criminal Courts, that s. 125 of the Act gives a discretion to certain ocers specied in the section to decide whether any particular accused be tried by a Court Martial or by a Criminal Court, that there is nothing in the Act to guide such ocers in the exercise of their discretion and that therefore discrimination between dierent persons guilty of the same oence is likely to take place inasmuch as a particular ocer may decide to have one accused tried by a Court Martial and another person, accused of the same oence, tried by a Criminal Court, the procedures in such trials being dierent.

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Ram Sarup v. The Union Of India 1963 nally. Section 69 provides for the punishment which can be imposed on a person tried for committing any civil oence at any place in or beyond India, if charged under s. 69 and convicted by a Court Martial. Section 70 provides for certain persons who cannot be tried by Court Martial, except in certain circumstances. Such persons are those who commit an oence of murder, culpable homicide not amounting to murder or of rape, against a person not subject to Military, Naval or AirForce law. They can be tried by Court Martial of any of those three oences if the oence is committed while on active service or at any place outside India or at a frontier post specied by the Central Government by notication in that behalf. This much therefore is clear that persons committing other oences over which both the Courts Martial and ordinary Criminal Courts have Jurisdiction can and must be tried by Courts Martial if the oences are committed while the accused be on active service or at any place outside India or at a frontier post. This indication of the circumstances in which it would be better exercise of discretion to have a trial by Court Martial, is an index as to what considerations should guide the decision of the ocer concerned about the trial being by a Court Martial or by an ordinary Court. Such considerations can be based on grounds of maintenance of discipline in the army, the persons against whom the oences are committed and the nature of the

We have been taken through the various provisions of the Act and the rules with respect to the trial of offences by a Court Martial. The procedure to be followed by a Court Martial is quite elaborate and generally follows the pattern of the procedure under the Code of Criminal Procedure. There are, however, material dierences too. All the members of the Court Martial are Military Ocers who are not expected to be trained Judges, as the presiding ocers of Criminal Courts are. No judgment is recorded. No appeal is provided against the order of the Court Martial. The authorities to whom the convicted person can represent against his conviction by a Court Martial are also non- 941 judicial authorities. In the circumstances, a trial by an ordinary Criminal Court would be more benecial to the accused than one by a Court Martial. The question then is whether the discretion of the ocers concerned in deciding as to which Court should try a particular accused can be said to be an unguided discretion, as contended for the appellant. Section 125 itself does not contain anything which can be said to be a guide for the exercise of the discretion, but there is sucient material in the Act which indicate the policy which is to be a guide for exercising the discretion and it is expected that the discretion is exercised in accordance with it. Magistrates can question it and the Government, in case of dierence of opinion between the views of the Magistrate and the army authorities,. decide the matter

43 oences. It may be considered better for the purpose of discipline that oences which are not of a serious type be ordinarily tried by a Court Martial, which is empowered under s. 69 to award a punishment provided by the ordinary law and also such less punishment as he mentioned in the Act. Chapter VII mentions the various punishments which can be awarded by Courts Martial and s. 72 provides that subject to the provisions of the Act a Court Martial may, on convicting a person of any of the oences specied in ss. 34 to 68 inclusive, award either the particular punishment with which the oence is stated in the said sections to be punishable or in lieu thereof any one of the punishments lower in the scale set out in s. 7 1, regard being had to the nature and degree of the oence. The exigencies of service can also be a factor. Oences may be committed when the accused be in camp or his unit be on the march. It would lead to great inconvenience if the accused and witnesses of the incident, if all or some of them happen to belong to the army, should be left behind for the purpose of trial by the ordinary Criminal Court. The trials in an ordinary court are bound to take longer, on account of the procedure for such trials and consequent appeals and revision, then trials by Courts Martial. The necessities of the service in the army require speedier trial. Sections 102 and 103 of the Act point to the desirability of the trial by Court Martial to be conducted with as much speed as possible. Section 120 provides that subject to the provisions of sub-s. (2), a summary Court Martial may try any of the oences punishable under the Act and sub-s (2) states that an ocer holding a summary Court Martial shall not try certain oences without a reference to the ocer empowered to convene a district court martial or on active service a summary general court martial for the trial of the alleged offender when there is no grave reason for immediate action and such a reference can be made without detriment to discipline. This further indicates that reasons for immediate action and detriment to discipline are factors in deciding the type of trial. Such considerations, as mentioned above, appear to have led to the provisions of s. 124 which are that any person, subject to the Act, who commits any oence against it, may be tried and punished for such oence in any place whatever. It is not necessary that he be tried at a place which be within the jurisdiction of a criminal court having jurisdiction over the place where the oence be committed. In short, it is clear that there could be a variety of circumstances which may inuence the decision as to whether the oender be tried by a Court Martial or by an ordinary Criminal Court, and therefore it becomes inevitable that the discretion to make the choice as to which court should try the accused be left to responsible military ocers under whom the accused be serving. Those ocers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the

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Ram Sarup v. The Union Of India 1963

army, speedier trial, the nature- of cused, to the Commanding Ocer of the oence and the person against the regiment, corps, ship or detachwhom the oence is committed. ment to which he belongs, or to the Lastly, it may be mentioned that Commanding Ocer of the nearest the decision of the relevant military military, naval or air-force station, as ocer does not decide the matter - the case may be, for the purpose of nally. Section 126 empowers a crimi- being tried by Court Martial. This nal court having jurisdiction to try gives a discretion to the Magistrate, an oender to require the relevant having regard to the rules framed, military ocer to deliver the oender to deliver the accused to the milito the Magistrate to be proceeded tary authorities for trial by Court against according to law or to post- Martial. The Central Government pone proceedings pending reference framed rules by S.R.O. 709 dated to the Central Government, if that April 17, 1952 called the Criminal criminal court be of opinion that pro- Courts and Court Martial (Adjustceedings be instituted before itself in ment of Jurisdiction) Rules, 1952, respect of that oence. When such under s. 549 Cr. P.C. It is not necesa request is made, the military o- sary to quote the rules in full. Suce cer has either to comply with it or to it to say that when a person charged make a reference to the Central Gov- is brought before a Magistrate on an ernment whose orders would be nal accusation of oences which are liwith respect to the venue of the trial. able to be tried by Court Martial, the Magistrate is not to proceed with the The discretion exercised by the case unless he is moved to do so by military ocer is therefore subject to the relevant military authority. He the control of the Central Governcan, however, proceed with the case ment. Reference may also be made when he be of opinion, for reasons to to s. 549 of the Code of Criminal be recorded, that he should so proProcedure which empowers the Cenceed without being moved in that betral Government to make rules conhalf by competent authority. Even in sistent with the Code and other Acts, such a case he has to give notice of including the Army Act, as to the his opinion to the Commanding Ocases in which persons subject to milcer of the accused and is not to pass itary, naval or air-force law be tried any order of conviction or acquittal by a court to which the Code applies under ss. 243, 245, 247 or 248 of the or by Court Martial. It also proCode of Criminal Procedure, or hear vides that when a person accused of him in defence under s. 244 of the such an oence which can be tried said Code; is not to frame any charge by an ordinary criminal court or by against the accused under s. 254 and a Court Martial is brought before a is not to make an order of committal Magistrate, he shall have regard to to the Court of Session or the High such rules, and shall, in proper cases, Court under s. 213 of the Code, till deliver him, together with a statea period of 7 days expires from the ment of the oence of which he is acservice of notice on the military au-

45 thorities. If the military authorities intimate to the Magistrate before his taking any of the aforesaid steps that in its opinion the accused be tried by Court Martial, the Magistrate is to stay proceedings and deliver the accused to the relevant authority with the relevant statement as prescribed in s. 549 of the Code. He is to do so also when he proceeds with the case on being moved by the military authority and subsequently it changes its mind and intimates him that in its view the accused should be tried by Court Martial. The Magistrate, however, has still a sort of control over what the military authorities do with the accused. If no eectual proceedings are taken against the accused by the military authorities within a reasonable time, the Magistrate can report the circumstances to the State Government which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law. All this is contained in rr. 3 to 7. Rule 8 practically corresponds to s. 126 of the Act and r. 9 provides for the military authorities to deliver the accused to the ordinary courts when, in its opinion or under the orders of the Government, the proceedings against the accused are to be before a Magistrate. According to s. 549 of the Code and the rules framed thereunder, the nal choice about the forum of the trial of a person accused of a civil offence rests with the Central Government, whenever there be dierence of opinion between a Criminal Court and the military authorities about the forum where an accused be tried for the particular oence committee by him. His position under ss. 125 and 126 of the Act is also the same 1/SCI/64-60 It is clear therefore that the discretion to be exercised by the military ocer specied in of the Act as to the trial of accused by Court Martial or by an ordinary court, cannot be said to be unguided by any policy laid down by the Act or uncontrolled by any other authority. Section 125 of the Act therefore cannot, even on merits, be said to infringe the provisions of Art. 14 of the Constitution. The writ petition therefore fails and is dismissed. Petition dismissed.

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Ram Sarup v. The Union Of India 1963

Chapter 3

Union of India v. Maj S K Sharma 1987

PETITIONER: UNION OF INDIA THROUGH MAJOR GENERAL H.C. PATHAK v. RESPONDENT: MAJOR S.K. SHARMA DATE 29/06/1987 OF JUDGMENT: as is contemplated by r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. HEADNOTE: An ocer in the Army led a complaint before a Magis- trate alleging that another ocer has assaulted him, that the Commanding Ocer to whom he had complained earlier had failed to take satisfactory action and thus both of them had committed oences under the Indian Penal Code. The Magistrate examined the complainant under s. 200 Cr. P.C., took cognizance of the oences under s. 190(A) and, on being satised of the existence of a prima facie case, issued summons under s. 204(A) for the appearance of the accused. Upon applications being made by the appellants urging that the case be handed over to the Military Authorities for disposal, the Magistrate made an order directing that the case be transferred to the Army Authorities for disposal in accordance with the provisions of

BENCH: PATHAK, R.S. (CJ) BENCH:PATHAK, R.S. (CJ), KHALID, V. (J) CITATION: 1987 AIR 1878 1987 SCR (3) 456 1987 SCC (3) 490 JT 1987 (3) 12 1987 SCALE (2)12 ACT: Criminal Procedure Code, 1973S. 475Read with ss. 200 to 204 of the Code, and the provisions of the Army Act, 1950 and the Army RulesWhen a Magistrate has taken cognizance of an oence committed by a member of the Armed Forces and thereafter transferred the case for trial under the Army Act and the Rules, it is not open to the Competent Authority to hold an inquiry for determining whether there is any case for trying the accusedIt must proceed to hold the Court Martial or take such other eectual proceedings

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Union of India v. Maj S K Sharma 1987 by Special Leave, HELD: The Army Authority is not entitled to ignore the proceeding taken by the Magistrate and to invoke the provi- sions of r. 22 and related rules of the Army Rules. The Magistrate having held that there is a case for trying the two accused ocers and having directed their appearance, the Army Authority must proceed to hold a Court Martial for their trial or take other eectual proceedings against them as contemplated by the law. [468G-H] (i) It is open to a Magistrate under ss. 200-203, Cr. P.C. to inquire into a complaint of an oence alleged to have been committed by a military person, where it falls within his jurisdiction and to take proceedings for trial of the accused. Likewise, a duly constituted Army Authority has power under the provisions of r. 22 onwards of the Army Rules to investigate into a charge against a military person accused of an oence triable under the Army Act, and after such hearing to decide whether his trial by a Court Martial should be ordered. The provisions of the Army Rules run parallel to the provisions in the Cr. P.C. Inasmuch as there is always a possibility of the same offence being triable either by a Criminal Court or by a Court Martial, s. 475, Cr. P.C. empowers the Central Government to make rules as to cases in which persons shall be tried by a Court to which the Code applies or by a Court Martial, and the section provides that whenever a person is brought before a Magis- trate and charged with an oence for which he is liable to be tried either by a Court to which the Code applies or by a

the Army Act, 1950 after trial by a Court Martial at any place within the jurisdic- tion of his Court and that the progress of the case be reported to him at intervals of two months. Upon the appel- lants making further applications praying for review of the said order on the ground that under the Army Act and the Army Rules, it was not mandatory that all disciplinary cases against military personnel should culminate in a trial by Court Martial and submitting that the disciplinary action against the ocers concerned would be initiated after an investigation of the alleged oences, the Magistrate, pointing out that the judicial process for ascertaining the prima facie existence of a case had already been completed, held that the trial of the accused by Court Martial was mandatory under s. 475 Cr. P.C. and,therefore, it was not permissible for the Army Authorities to hold a preliminary investigation. However, having regard to s. 127 of the Army Act, the Magistrate directed that the progress of the case be intimated at intervals of four months. in the Revision led by the appellants, the High Court interfered with the order of the Magistrate insofar only that it deleted the direction requiring the Army Au- thorities to inform the Magistrate of the progress of the case at intervals of four months and directed instead that the result of the Court Martial proceeding be communicated to the Magistrate, as soon as may be, in accordance with r. 7 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. Dismissing the appeal

49 Court Martial, such Magistrate must have regard to such rules and must, in proper cases, deliver the person together with a statement of the oence of which he is accused, to the Commanding Ocer of the unit to which he belongs for the purpose of being tried by a Court Martial. The language used in s. 475 is signicant. It refers to a person who is brought before a Magistrate and charged with an oence. In other words, he must be a person respecting whom the Magistrate has taken the proceedings envisaged by ss. 200 to 204 of the Cede. He will be a person in respect of whom the Magistrate has found that there is a case for trial. It is for that reason that s. 475 goes on to say that when such person is delivered to the Commanding Ocer of the unit to which he belongs, it will be for the purpose of being tried by a Court Martial. When he is so delivered, a statement of the oence of which he is accused will also be delivered to the Commanding Ocer. The relevance of deliv- ering such statement can be easily understood, for it is to enable the Army Authority to appreciate the circumstances in which a Court Martial is required by the law. [464C-D; 465E-H] (ii) It is clear from r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 framed under s. 475 of the Cr. P.C. that when the accused is made over by the Magistrate under s. 5 or 6 thereof to the competent military or other authority, it is for the purpose of trial by a Court Martial or other eectual proceedings to be taken or ordered to be taken against him inasmuch as the competent authority must, as soon as may be, inform the Magistrate, whether the accused has been tried by a Court Martial or other eectual proceedings have been taken or ordered to be taken against him and the communication of such information is mandatory. When the Magistrate is in- formed that the accused has not been tried or other eectual proceedings have not been taken or ordered to be taken against him, he is obliged to report the circumstances to the State Government and the State Government, in consultation with the Central Government, may take appropriate steps to ensure that the accused person is dealt with in accord- ance with law. The policy of the law is clear. Once the Criminal Court determines that there is a case for trial, and pursuant to the aforesaid rule, delivers the accused to the competent military or other authority, the law intends that the accused must either be tried by a Court Martial or some other eectual proceedings must be taken against him. [467B-E] (iii) The policy of our Constitutional Polity is that no person should be regarded as being above the law. Military, navel or air force personnel are as much subject to the law as members of the civil population. It is signicant that r. 8 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 empowers the Magistrate, on coming to know that a person subject to the military, naval or air force law or any other law relating to the Armed Forces has committed an oence and proceedings in respect of which ought to be instituted

50

Union of India v. Maj S K Sharma 1987 tance in deciding whether it is open to the Army Authority to take proceedings for determining prima facie whether there is substance in the allegations made against the accused and decline to try him by a Court Martial or take other eectual proceedings against him even where a Magistrate has taken cognizance of the oence and nds that there is a case for trying the accused. [468EF] (vi) There is nothing in the provisions of the Army Rules relating to Courts of Inquiry which can support the contention that notwithstanding the proceeding taken by the Magistrate it is open to the Army Authority to hold a Court of Inquiry and determine whether there is any case for trying the accused by a Court Martial. If, it is not open to the Army Authority to have recourse to r. 22 of the Army Rules and investigate the charge directed against the ac- cused ocer in this case, for the same reason, it is not open to it to hold a Court of Inquiry and supersede the proceeding already taken by the Magistrate. [469B-D] JUDGMENT: CRIMINAL APPELLATE ORIGINAL JURISDICTION: Criminal Appeal No. 271 of 1987. From the Judgment and Order dated 3.7. 1986 of the Gauhati High Court in Crl. Revn. No. 229 of 1986. A.K. Ganguli, R.P. Srivastava, P. Purameswarn and Ashok K. Srivastava for the Appellant in Crl. A. No. 271 of 1987 and Respondent in W.P. (Crl.) No. 664 of 1986. R.K. Jain, Gaurav Jain, Abha Jain and R.P. Singh for the Respondent in Crl. A. No. 271 of 1987 and Petitioner in

before him and that the presence of such person cannot be procured except through military, navel or air force authorities, to require the Commanding Ocer of such person either to deliver such person to a Magistrate for being proceeded against according to law or to stay the proceedings against such person before the Court Martial if since instituted, and to make a reference to the Central Govern- ment for determination as to the Court before which the proceedings should be instituted. [467GH; 468A-B] (iv) Section 127 of the Army Act provides that a person convicted or acquitted by a Court Martial, may, with the previous sanction of the Central Government, be tried against by a Criminal Court for the same oence or on the same facts which is an exception to the rule contained in Art. 20 of the Constitution that no person shall be prose- cuted and punished for the same oence more than once. It is to enable the operation and application of s. 127 of the Act that r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 requires the compe- tent military or other authority to inform the Magistrate whether the accused has been tried by a Court Martial or other effectual proceedings have been taken against him. [468B-D] (v) Section 125 of the Army Act, which provides that when a Criminal Court and a Court Martial have each juris- diction in respect of an oence, it will he in the discre- tion of the Commanding Ocer of the accused to decide before which Court the proceedings shall he instituted, is of no assis-

51 W.P. (Crl.) No. 664 of 1986. The Judgment of the Court was delivered by PATHAK, CJ. Special Leave is granted. The respondent Major S.K. Sharma addressed a letter dated 21 December 1985 to Brigadier S.S. Randhawa, Command- er, HQ 41 Sub Area alleging that on 15 December, 1985 he was manhandled by Col. Mir Usman Ali in the HQ 41 Sub Area Ocers Mess at Jorhat. It was stated that the incident took place in the presence of Major M.M. Subbaiah. Major Sharma was attached to B Camp. Signal Regiment while Col. Ali belonged to HQ 41 Sub Area. Brigadier Randhawa wrote to the Ofcer Commanding, B. Comp. Signal Regiment on 14 January 1986 seeking clarication from Major Sharma on some of the allegations. It appears that correspondence was exchanged in the matter but apparently Major Sharma, having met with no satisfactory response, led a complaint 21 January 1986 in the Court of the Additional Chief Judicial Magistrate, Jorhat alleging that Col. Ali had criminally assaulted him and further that Brigadier Randhawa did not report the matter to the higher authorities and was attempt- ing to protect Col. Ali. It was alleged in the complaint that Col. Ali had committed the oences under sections 323, 352 and 355 of the Indian Penal Code and Brigadier Randhawa had committed the oence under section 2 17 of the Indian Penal Code. The Additional Chief Judicial Magistrate exam- ined the complaint, and taking cognizance of the oences alleged to have been committed by Col. Ali and Brigadier Randhawa it directed that summons be issued to them for their appearance before him on 7 March, 1986. On two applications moved by Major Sharma before him the Chief Judicial Magistrate made an order dated 25 January. 1986 directing that the venue of a Court of Inquiry insti- tuted in respect of certain complaints made against Major Sharma by his Commanding Ocer be shifted from Mohanbari, where it was convened, to a place within the jurisdiction of his Court and it was directed further that Major Sharma should not be moved out of the jurisdiction of the Court during the pendency of the case. Major Sharma had complained that the Court of Inquiry had been ordered by Brigadier Randhawa at Mohanbari as a measure of retaliation because of the institution of the criminal case by Major Sharma before the Additional Chief Judicial Magistrate. On 7 February 1986 the Union of India moved an applica- tion before the Chief Judicial Magistrate along with an application dated 3 February 1986 addressed to the Court by Major General T.S. Chaudhri informing the Chief Judicial Magistrate that the General Ocer Commanding was of opinion that Col. Ali should be dealt with in accordance with the procedure laid down under the Army Act and the Army Rules and the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978, and that therefore, the case may be handed over to the Military Authorities. It was pointed out by Major Chaudhri in his letter that the com- plaint before the Additional Chief Judicial Magistrate

52

Union of India v. Maj S K Sharma 1987 transferred to the Army authorities pursu- ant to the requisitions, and for disposal in accordance with the provisions of the Army Act, 1950 after trial by a court martial at any place within the jurisdiction of his Court, He directed further that the progress of the case should be reported to his Court at intervals of two months and ultimately intimating the result thereof, for the purpose of determining whether a successive trial was necessary as provided for in the Army Act. While making the order the Chief Judicial Magistrate noted that the Army authorities had not shifted the venue of the Court of Inquiry mentioned earlier to any place within the jurisdiction of his court as required by his order dated 25 January, 1986, and this prima facie amounted to contempt for which it was open to Major Sharma to apply to the High Court for necessary action. He also directed that Major Sharma should be permitted to proceed on leave to enable him to apply to the Gauhati High Court for ling a writ petition or taking other legal proceedings. On 21, March 1986 the Union of India through the General Ocer Commanding led an application before the Chief Judicial Magistrate for modication of the order dated 17 February 1986. In that application it was contended that under the Army Act and the Army Rules it was not mandatory that all disciplinary cases against military personnel should culminate in a trial by the Court Martial and that the directions made by the Chief Judicial Magistrate with regard to the trial

against Col. Ali should, in his opinion, be disposed of under the procedure laid down in Army Rule 22 of Army Rules, 1954 and that under s. 125 of the Army Act 1950 read with Army Rule 197A of the Army Rules and the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1978, Major General Chaudhri was the competent Military authority to claim the case. He requested that the case should be handed over to the Military authorities for further necessary action. On 12 February 1986 the Union of India moved another application before the Chief Judicial Magistrate along with an application dated 3 February 1986 addressed to the Chief Judicial Magistrate by Major General T.S. Chaudhri as Gener- al Ocer Commanding requesting that the case against Brigadier Randhawa should similarly be handed over to the Military authorities for necessary action. On 17 February 1986 the Chief Judicial Magistrate, Jothat made an order disposing of the two requisitions made by Major General Chaudhri. He noted that the cognizance of the oences had been taken by the Additional Chief Judicial Magistrate and necessary process had been issued against both accused to compel their presence, and that in the light of Rule 3 of the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1978 the prayer for trial by a Court martial by the competent authority was. allowed. In this connection he made reference to Delhi Special Police Establishment v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548. He directed that the case be

53 of Brigadier Randhawa and Col. Ali by Court Martial were in contravention of the Army Act and the Army Rules and the Criminal Court and Court Martial (Adjust- ment of Jurisdiction) Rules 1978. It was asserted that the proposed disciplinary action would be initiated by the General Commanding Ocer after an investigation of the alleged oences in accordance with Army Rule 22. It was prayed that the order dated 17 February 1986 be reviewed by deleting the direction for a trial by Court Martial at a place within the jurisdiction of the Court of the Chief Judicial Magistrate and of the direction further that the progress of the case should be intimated to the Chief Judi- cial Magistrate at intervals of two months. On 7 April 1986 the Union of India led another application making more detailed submissions for modication or the other dated 17 February 1986. A third application was moved by the Union of India on 30 April 1986 to the Chief Judicial Magistrate requesting that the records of the case be handed over to the Army authorities. These applications were disposed of the Chief Judicial Magistrate by his order dated 8 May 1986. In that order he noted that the Additional Chief Judicial Magistrate had, on receipt of the complaint examined the complainant Major S.K. Sharma under s. 200 of the Cr. P.C. and had taken cognizance of the oence under s. 190(A) of the Code and on being satised of the existence of a prima facie case process had been issued by him under s. 204(A) of the Code. He noted that the judicial process for ascertaining the prima facie existence of a case had thereby been completed. He held that in the circumstances the trial of the accused ocers by a court martial appeared to be mandatory under the provisions of s. 475 of the Code. He observed that the preliminary investiga- tions by a departmental court of inquiry did not seem per- missible in the case. However, having regard to s. 124 of the Army Act which conferred absolute power on the Army authorities to choose the venue of trial and keeping in view the administrative convenience of the Army authorities he decided to accept the request of the General Ocer Com- manding for deleting the direction in respect of the venue of the trial. The Chief Judicial Magistrate also directed that instead of intervals of two months the Army authorities should, having regard to the provision of s. 127 of the Army Act, inform his Court as to the progress of the case at intervals of four months. On 14 June 1986 the Union of India through the General Ocer Commanding led a revision petition before the High Court at Gauhati, which was disposed of by the High Court by its order dated 3 July 1986. The High Court interfered with the order of the Chief Judicial Magistrate in so far only that it deleted the direction requiring the Army authorities inform the Chief Judicial Magistrate of the progress of the case at intervals of four months, and it directed instead that the result of the Court Martial proceedings should be communicated to the Chief Judicial Magistrate as soon as may be in accordance with Rule 7 of the

54

Union of India v. Maj S K Sharma 1987 oence alleged to have been committed by a military person, where it fails within its juris- diction, and to take proceedings either for his trial or for committing the case to the Court of Sessions for trial. Likewise, there is power under the Army Act in a duly con- stituted Army authorities to investigate into a charge against a military person accused of an oence triable under the Army Act, and after such hearing to decide whether his trial by a Court Martial should be ordered. In the former case, ss. 200 to 203 of the Code of Criminal Proce- dure provide the procedure to be followed by Magistrates taking cognizance of an oence on a complaint. The Magis- trate is required to examine on oath the complaint and the witnesses present and reduce the substance of such examina- tion to writing to be subsequently signed by the complainant and the witnesses and by the Magistrate. That is the proce- dure except when the complaint is made in writing by a public servant or the Magistrate makes over the case for trial or inquiry to another Magistrate. The Magistrate may either inquire into the case himself or direct an investiga- tion to be made by a police ocer or by such other person as he thinks t for the purpose of deciding whether or not there is sucient ground for proceeding. Where, however, it appears to the Magistrate that the oence complained of its triable exclusively by the Court of Session no such direction for investigation can be made by him. For the purpose of inquiry be may take evidence of witnesses on oath. If the Magistrate is of opin-

Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. It may be mentioned that according to the order of the High Court the only submission raised on behalf of the appellant in the revision petition was that the Magistrate had no jurisdiction to direct the Court Martial to submit reports relating to the progress of the case, including the result thereof, at intervals of four months. Thereafter a special Leave Petition was led by the Union of India, out of which the present appal arises. Although it appears that the only point raised before the High Court on the revision petition related to the direction that the Army authorities should report periodi- cally to the Chief Judicial Magistrate in regard to the progress of the case, learned counsel for the appellants has raised a more fundamental question before us. That question is whether it is open to the Army authori- ties to constitute a Court of Inquiry, enter upon an inves- tigation of the charges under Rule 22 of the Army Rules and determine whether there is a case for trial by a Court Martial. Learned Counsel contends that the proceedings already taken by the Additional Chief Judicial Magistrate must be ignored for the purpose and the Army authorities are not bound to try the accused by a Court Martial. Although the point was not taken before the High Court we have per- mitted it to be raised before us and it has been argued by learned counsel at length. It is apparent from the provisions of the Code of Crimi- nal Procedure that it is open to a Magistrate to inquire into a complaint of an

55 ion that the oence complained of is triable exclusively by the Court of Session he must call upon the complainant to produce all his wit- nesses and examine them on oath. If after considering the statement on oath of the complainant and of the witnesses and the result of the inquiry or investigation directed by him the Magistrate is of opinion that there is no sucient ground for proceeding he must dismiss the complaint. Where 465 the Magistrate is of opinion that there is sucient ground for proceeding he must adopt the procedure setforth in sections 204 onwards. He must issue process for the attend- ance of the accused. In certain cases he may dispense with the personal attendence of the accused and permit him to appear by his pleader. Where, however, the proceeding is taken by an Army authority under the Army Act reference must be made to the provisions of Rule 22 onwards of the Army Rules. The Rules provide for the hearing of a charge, in which the accused has liberty to cross examine any witness against him and to call any witnesses and make any statement in his defence. If the Commanding Ocer investigating the charge nds no offence has been committed he must dismiss the charge. He may also do so if, in his discretion, he is satised that the charge has not to be proceeded with. If the charge is to be proceeded with he may pass any of the orders detailed in Rule 22(3). They include proceedings for trial by a Court Martial. It is clear that these provisions of the Army Rules run parallel to the provisions of the Code of Criminal Procedure adverted to earlier. Now inasmuch as there is always a possibility of the same oence being triable either by a Criminal Court or by a Court Martial the law has attempted to resolve the competings claims of the civil authority and the military authori- ty in such cases. Section 475 of the Code of Criminal Proce- dure empowers the Central Government to make rules as to cases in which persons shall be tried by a Court to which the Code applies or by a Court Martial, and the section provides that whenever a person is brought before a Magistrate and charged with an oence for which he is liable to be tried either by a Court to which the Code applies or by a Court Martial such Magistrate must have regard to such rules and must, in proper cases, deliver the person together with a statement of the oence of which he is accused to the Commanding Ocer of the unit to which he belongs for the purpose of being tried by a Court Martial. The language used in s. 475 is signicant. It refers to a person who is brought before a Magistrate and charged with an oence. In other words, he must be a person respecting whom the Magis- trate has taken the proceedings envisaged by ss. 200 to 204 of the Code. He will be a person in respect of when the Magistrate has found that there is a case for trial. It is for that reason that s. 475 goes on to say that when such person is delivered to the Commanding Ocer of the unit to which he belongs it will be for the purpose of being tried by a Court Martial. When he is so delivered, a statement of the

56

Union of India v. Maj S K Sharma 1987 a period of 15 days from doing any of the acts or making any of the orders in relation to the trial of the accused speci- ed in Rule 4. In the event of the Magistrate entering upon the trial of the accused or committing the case to the Court of Session at the instance of the military, naval or air force authority it is open to such authority or the Command- ing Ocer of the accused to give notice subsequently under Rule 5 to such Magistrate that, in the opinion of such ofcer or authority the accused should be tried by a Court Martial. Upon such notice, the Magistrate, if he has not taken any action or made any order referred to specically in Rule 4 before receiving such notice, must stay the pro- ceedings and deliver the accused together with the statement referred to in s. 475(1) of the Code to the Ocer speci- ed in that subsection. In the other kind of case, where the Magistrate intends to proceed to try the accused or to commit the case to a Court of Session without being moved in that behalf by the military, naval or air force authority, and he has given notice under Rule 4 to the Commanding Ocer or the military, naval or air force authority of his intention to do so, Rule 6 empowers the Commanding Ocer or the competent authority to give notice to the Magistrate within the aforesaid period of 15 days or in any event before the Magistrate takes any action or makes any order referred to in that Rule, that in the opinion of such ocer or authority the accused should be tried by a Court Martial. Upon such notice the Magistrate must stay the proceedings and deliver the ac-

oence of which he is accused will also be delivered to the Commanding Ocer. The relevance of delivering such statement can be easily understood, for it is to enable the Army authority to appreciate the circumstances in which a Court Martial is required by the law. We now turn to the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. These Rules have been framed under s. 475 of the Code of Criminal Procedure. When a person subject to military, naval or air force law or any other law relating to the Armed Forces is brought before a Magistrate and charged with an oence for which he is also liable to be tried by a Court Martial, the Magistrate will not proceed to try such person or to commit the case to the Court of Session unless (a) he is moved to that eect by a competent military, naval or air force authority or (b) he is of opinion for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority. Rule 3, in our opinion, comes into play at the point where the person has been brought before a Magistrate and charged with an oence. That is the stage adverted to earlier where the accused is directed to appear before the Magistrate and is charged with an oence after the Magis- trate has determined that there is a case for trial. Before proceeding further with the case and either proceeding to try the accused or to commit the case to the Court of Ses- sion the Magistrate must, under Rule 4, give written notice to the Commanding Ocer of the accused and refrain for

57 cused together with the statement referred to in s. 475(1) of the Code to the ocer specied in that subsection. It is clear that when the accused is made over by the Magistrate to the Commanding Ocer or the competent military, naval or air force authority it is for the purpose of trial by a court martial or other eectual proceedings to be taken or ordered to be taken against him. For Rule 7(1) provides that when an accused has been delivered by a Magistrate under Rule 5 or 6 the Commanding Ocer or the competent military, naval or air force authority must, as soon as may be, inform the Magistrate whether the accused has been tried by a Court Martial or other effectual pro- ceedings have been taken or ordered to be taken against him. The communication of such information is mandatory. When the Magistrate is informed that the accused has not been tried or other eectual proceedings have not been taken or or- dered to be taken against him, he is obliged to report the circumstance to the State Government and the State Govern- ment, in consultation with the Central Government may take appropriate steps to ensure that the accused person is dealt with in accordance with law. The policy of the law is clear. Once the Criminal Court determines that there is a case for trial. and pursuant to the aforesaid rule, delivers the accused to the Commanding Ocer or the competent military, naval or air force authority, the law intends that the accused must either be tried by a Court Martial or some other eectual proceedings must be taken against him. To ensure that proceedings are taken against the accused the Rules require the Commanding Ocer or the competent au- thority to inform the Magistrate of what has been done. Rule 7(2) appears to envisage the possibility that the Commanding Ocer or the competent military, naval or air force au- thority may not try the accused or take eectual proceed- ings against him even where the Magistrate has found a case for trial. To cover that exigency it provides that the State Government in consultation with the Central Government, on a report from the Magistrate to that eect, may take appropriate steps to ensure that the accused does not escape the attention of the law. The policy of our Constitutional polity is that no person should be regarded as being above the law. Military. naval or air force personnel are as much subject to the law as members of the civil population. It is signicant that Rule 8 empowers the Magistrate. on coming to know that a person subject to the military. naval or air force law or any other law relating to the Armed Forces has committed an oence and proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except through military. navel or air force authorities. to require the Commanding Ocer of 468 such person either to deliver such person to a Magistrate for being proceeded against according to law or to stay the proceedings against such person before the Court Martial if since instituted, and to make a reference to the Central Government for

58

Union of India v. Maj S K Sharma 1987 Army authority to take proceedings for determining prima facie whether there is substance in the allegations made against the accused and decline to try him by a Court Martial or take other eectual proceedings against him even where a Magistrate has taken cognizance of the oence and nds that there is a case for trying the accused. On the aforesaid analysis we are of opinion that the Army authority is not entitled to ignore the proceeding taken by the Additional Chief Judicial Magistrate and to invoke the provisions of Rule 22 and related rules of the Army Rules. The Additional Chief Judicial Magistrate having hold that there is a case for trying the two accused o- cers and having directed their appearance, the Army authority must proceed to held a court martial for their trial or take other effectual proceedings against them as contemplat- ed by the law. The contention advanced by learned counsel for the appellants to the contrary must be rejected. We have also been referred to the provisions of the Army Rules relating to Courts of Inquiry, and learned counsel for the appellants urges that notwithstanding the proceeding taken by the Additional Chief Judicial Magistrate it is open to the Army authority to hold a Court of Inquiry and deter- mine whether there is any case for trying the accused by a Court Martial. We have been taken through Rule 177 and the connected Rules which deal with the institution and conduct of Courts of Inquiry, but we see nothing in those provisions which can support the contention now raised

determination as to the Court before which the proceedings should be instituted. Reference may also be made to s. 127 of the Army Act. It is an important provi- sion. It provides that a person convicted or acquitted by a Court Martial, may, with the previous sanction of the Central Government, be tried again by a Criminal Court for the same offence or on the same facts. This provision is an exception to Article 20 of the Constitution which provides that no person shall be prosecuted and punished for the same oence more than once. The provision has been made possible by reason of Article 33 of the Constitution which confers power on Parliament to modify any Fundamental Right in its application to the members of the Armed Forces. It is to enable the operation and application of s. 127 of the Act that Rule 7(1) of the Criminal courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 requires the Com- manding Ocer or the competent military, naval and air force authority to inform the Magistrate whether the accused has been tried by a Court Martial or other effectual pro- ceedings have been taken against him. Our attention has been drawn by learned counsel for the appellants to s. 125 of the Army Act. Section 125 provides that when a Criminal Court and a Court Martial have each jurisdiction in respect of an oence it will be in the discretion of the Commanding Ocer of the accused to decide before which Court the proceedings shall be institut- ed. This provision is of no assistance in deciding whether it is open to the

59 before us. If, on the analysis detailed earlier, it is not open to the Army authority to have recourse to Rule 22 and investigate the charge directed against the accused ocer in this case. for the same reason it is not open to it to hold a Court of Inquiry and supersede the proceedings already taken by the Additional Chief Judicial Magistrate. We may mention that learned counsel for the parties placed a number of cases before us, but having carefully perused the judgments in those cases we do not nd any declaration of law therein which is inconsistent with the view taken by us. Accordingly, the appeal is dismissed. In the Criminal Writ Petition Major S.K. Sharma prays for a number of reliefs. The material reliefs are that a direction be issued to the Army authorities to postpone the return of the petitioner to the Unit to which he has been posted and direct the Army authorities to stay all parallel proceedings against the petitioner until the hearing and disposal of their Special Leave Petition. So far as the rst submission as concerned it refers to the mental and physical stress suffered by the petitioner, apparently necessitating his treatment at a hospital with sychiatric facilities. We do not think it necessary to issue any direction because, we think, it is a matter which can be adequately and humanely dealt with by the Army authorities. If indeed the petitioner should be given a posting where the requisite medical facilities are available we have no reason to doubt that the Army authorities will aord such posting to the petitioner. In doing so it will be open to the Army authorities to obtain the latest medical report respecting the condition of the petitioner. As regards the second relief, we have already disposed of the special leave petition today and, therefore, no order need be passed in respect of that relief. In the result the writ petition is dismissed. H.L.C. Petition dismissed.

60

Union of India v. Maj S K Sharma 1987

Chapter 4

S.K. Rao v. Union Of India 1967

S.K. Rao v. Union Of India ter of Capt. Raghbir Singh, he (Uoi) on 23 February, 1967 Bench: K (Capt S.K. Rao) assisted Kumari Prakash in going away from her perHegde, J Singh ents prtoection and planning to run JUDGMENT away with an Ob, by (aa) receiving K.S. Hegde and Jagjit Singh, JJ. her in his house in the early hours (1) On April 9, 1959, the Cen- of 4th April 1958, and taking her in tral Government directed the re- his scotoer to 511 GR. Lines, (bb) moval from service of Captain S.K.. arranging her meeting with 9402844 Rao under rule 14 of the Army Rules, Rfn Jai Prashai LembJ of 5/11 GX. 1954. A petition under article 226 of at the unit lines and, (cc) acquiescthe Constitution was led by Cap- ing in the girl being met by the Ob tain Rao for quashing the order of latter at teashop nearby to receive a his removal from services on the present of a sari and a blouse from ground that rule 14 is ultra vires the him in his presence. The Ocer thus Army Act, 1953, and therefore, ac- actively abetted in the attempt of brtion taken there under is without the toher ocers daughter to elope with authority of law. an OB. (ii) He took Kumari Prakash (2) The petitioner was a com- to a htoel Saidiya Lodge in Hydermissioned ocer in the Indian Army abad and gto a room to themselves Ordnance Corps Training Centre, Se- by impersonating and giving a false cundarabad. It was alleged that on identity as Mr. and Mrs. Prakash. April 4,1958, the petitioner commit(3) An enquiry into the matted acts of gross-misconduct. The al- ter was made by Court of Inquiry. legations against him were as follows The Chief of the Army Sta, af:ter going through the proceedings (I)Knowing her as the daugh- of the Court of Inquiry, Considered

62 that the conduct of Captain Rao was most unbecoming an ocer and as he was of opinion that trial of the ocer by a General Court Martial was inexpendient, he ordered administrative action to be taken under rule 14.B, memorandum Tbib, 6914/88 No. 13802/15/ Tb, dated September 4, 1958, the petitioner was called upon to submit his explanation and defense regarding the allegations against him. The explanation of the petitioner, on being submitted, was placed before teh Central Government, who found it unsatisfactory and an order (dated April 9, 1989) was passed removing the petitioner from service. (4) In the petition a some what dierent version was given of what had happend. According to the petitioner, he did nto in any way assist Kumari Prakash, daughter of Captain Raghbir Singh, to go away from her parents house. It was stated by him that with the help of Major A.C. Gupta he had taken book. Kumari Prakash from a htoel to her parents house. (5) For purpose of this petition, it is, however, nto necessary to consider as to which of the two versions is correct. That was a matter Fur the competent authority to determine. The only point which has to be considered is the validity of rule 14 of the Army Rules, 1954 (hereinafter referred to as the Rules). If rule 14 is intern vires the Army Act, 1950 (hereinafter referred to as the Act), the petitioner has no case. (6) Admittedly the petitioner was subject to the Act. The Rules, in-

S.K. Rao v. Union Of India 1967 cluding rule 14, purported to have been made by the Central Government under the rule-making powers given by section 191 of the Act. Rule 14 reads: 14(1) When after considering the reports on an oncers misconduct, the Central Government is satised or the C-in-C is of the opinion, that the trial of the ocer by a Court Martial is inexpedient or impracticaile but considers the further retention of the said ocer in the service as undesirable, tha C-in-C shill communicated the view of the Central Government or his views, as the case may be, to the ocer together with all reports adverse to him and he shall be called upon to submit his explanation and defense. (2) In the event of the explanation of the ocer being considered unsatisfactory by the C-in-C, or when so directed by the Central Government, the case shall be submitted to the Central Government with the ocers defense and the recommendation of the C-in-C as to whether the ocer should be (a) dismissed from the service; or (b) removed from the service; or (e) called upon to retire; or (d) called upon to resign. (3) The Central Government, after due consideration of the reports the ocers defense, if any, and the recommendation of the C-in-C, may dismiss or remove the ocer with or without pension or call upon him to retire or resign, on his refusing to do so the ocer may be retired from or gazetted out of the service ...gratuity if any admissible to him. (7) Thus under rule 14 action

63 can be taken for misconduct against an ocer, whose further retention in service is considered undesirable, without the ocer being tried by a General Court Martial. But before doing so, the ocer must be called upon to submit his explanation and defense. If the explanation is found unsatisfactory, the Central Government has the power to dismiss or remove the ocer. ery person subject to the Act shall hold oce during the pleasure of the President. Section 19 is to the effect that subject to the provisions of the Act and the rules and regulations made there under, the Central Government may dismiss or remove from service any person subject to the Act. Chapter Vi, containing sections 34 to 70, deals with oences that may be committed by persons subject to the (8) As stated above, the Rules Act. Section 45 is important for purwere made under section 191 of the poses of this case and is reproduced Act. Sub section (1) of section 191 below:45.Any ocer, junior commisgive p3wer to the Central Government to make rules for the purposes sioned ocer or warrant ocer who of carrying into eect the provisions behave in a manner unbecoming his of the Act. Sub-section (2) men- position and the character expected tions specic matters about which of him shall, on conviction by court rules may be made, but this power is martial, if he is an ocer, be liable without prejudice to the generality to be cashiered or to suer such less of the power conferred by sub-section punishment as is in this Act men(1). Clause (a) of sub-section (2) tioned; and, if he is a junior comrefers to the removal, retirement, re- missioned ocer or a warrant ocer lease or discharge from service of per- be liable to be dismissed or to suer such less punishment as is in this Act sons subject to the Act. (9) So far as the impugned rule mentioned. (11) Shri S S. Chadha, learned counsel for the petitioner, contended that as the services of the petitioner were nto terminated by the President, section 18, which provides that every person subject to the Act shall hold oce during the pleasure of the President, has no application to the facts of the present case. Elaborating his argument, he seated that a distinction has been made in Sections 18, and 19 between the power of the President and the Central Govern(10) Some provisions of the Act ment. While the President could termay appropriately be mentioned minate the services of the petitioner here. Section 18 provides that ev- at his pleasure, the Central Govern(rule 14) is concerned. its validity depends upon the fact as to whether it enables to carry in to eect any provision of the Act. In order to be valid, the rule must net be inconsistent with the provisions of the Act. In the State of U.P. v Babu Ram. it was observed by their Lordships of the Supreme Court that one of the principles fundamental to the rules of construction was that the rules should be consistent with the provisions of the Act.

64 ment under section 19, could only act subject to the provisions of the Act and the rules and regulations made there under. It was urged that as the Act contained specic provisions for punishing unbecoming conduct, a rule could nto have been validly made in derogation of section 46 to give power to the Central Government to remove an ocer without being tried and convicted by court martial. Rule 14 was, therefore, stated to be ultra vires. (12) On a plain reading of section 19, there can be no doubt that the power of the Central Government to dismiss or remove from service any person subject to the Act can be exercised only subject to the provisions of the Act and the rules and regulations made there under. As already stated, rules can be made under section 191 of the Act for the purpose of carrying into eect the provisions of the Act. Regulations can be made under section 192, but we are nto concerned with them, as rule 14 forms part of the Rules which were made under section 191 of the Act. In the return submitted on behalf of the respondent, the Union of India, the stand taken was that rule 14 had been made under section 191(2)(a) of the Act and that for removal from service under section 19, read with rule 14 a court martial was nto necessary. (13) Shri S.N. Shankar, learned counsel for the Union of India, aid nto dispute the proposition that act made a, distinction between the powers of the President and the Central Government. He, however, con-

S.K. Rao v. Union Of India 1967 tended that the power given to the Central Government by section 19 was nto fettered by the provisions of section 45 of the. Act. According to him, section 19 was independent of section 45 and consequently rule 14 could nto be regarded as inconsistent with the provisions of section 45 of the Act. In this connection, a reference was also made by him to a recent judgment of Kapur, J. in the case of Om Parkash Bhardwaj v. The Union of India. (14) Under Article 310 of the Constitution, every person, who is a member of the defense service, holds oce during the pleasure of the President. In the case of civil servants the Pleasure doctrine in subject to certain restrictions provided in Article 311, but that has no application to members of the defense service. Section 18 embodies the rule enunciated in Article 310 of the Constitution so far as persons subject to the Act are concerned. The removal of the petitioner having been made by the Central Government, under section 19 of the Act, and nto by the President, the pleasure doctrine cannto be invoked. The Act, as already stated, makes a distinction between the power of the President and the Central Government. the power of the Central Government to dismiss or remove a person subject to the Act was specically made subject to the provisions of the Act and the rules and regulations, made there under such rules and regulations, in order to be valid, should nto be inconsistent with the provisions of the Act. Under the Act, unbecoming

65 conduct of an ocer can be pun- dent of section 45 or that section 19 ished only under section 45. gives independent power to the Cen(15) It follows that except where tral Government for dismissing cr reaction is taken by the President, un- moving persons subject to the Act is, der section 18 of the Act, any ocer, in our opinion, nto tenbble. Any such junior commissioned ocer or war- interpretation will amount to ignorrant ocer subject to the Act can ing in section 19 the words subject only be punished under section 45 of to the provisions of this Act and the the Act for behaving in a manner un- rul(r).s and regulations made there becoming the position and character under. expected of him. (16) The implication of the words subject to the provisions of this Act, occurring in section 19, is that power of the Central Government to dismiss or remove from service any person subject to the Act cannto be exercised contrary to the provisions of ihe Act or in toher words in derogation of the provisions of section 45. If the intention of the legislature had been to empower the Central Government to exercise those powers being restricted by the provisions of the Act, then the use of the words subject to the provisions of this Act was unnecessary. That the legislature did nto intend to give unfettered powers to the Central Government for purpose of dismissing or removing from service persons subject to the Act nds further support from the use of the words subject to the rules and regulations made there under. Rules and regulations can be made for the purpose of carrying into eect the provisions of the Act, which means that a rule or regulation cannto be made which is outside the scope of any of the provisions of the Act. The contention of the learned counsel for the Union of India that section 19 of the Act is indepen(17) The contention of Shri Shanker that the impugned rule was made with a view to facilitate the proper exercise of the power given to the Central Government under section 19 overlooks in that section the crucial words subject to the provisions of this Act. The eect of these words is that if a person subject to the Act is liable under any of the provisions of the Act to be dismissed or removed from service as a punishment for an oence, than without complying with the requirements of these provisions action cannto be taken by the Central Government by purporting to act under section 19 of the Act. (18) Rule 14 of the Rules clearly goes beyond the scope of sections 19, 45 and 191 of the Act and is inconsistent with those provisions. The power of the Central Government to dismiss or remove from service being subject to the provisions of the Act has to be exercised in conformity with section 46 of the Act. The rule, as it exists, has the eect of abrogating the provisions of buth sections 19 and 45. It appears that at the time of making this rule the opening words of section 19 subject to the provisions of this Act were lost sight of.

66 (19) The case of Om Parkash Bhardwaj, cited by the learned counsel for the Union of India, i elated to dismissal of a Wing Commander on the ground of moral turpitude, under section 19 of the Air Force Act, 1950, section 19 of the Act, 1950, corresponds to section 19 of the Act. while dealing with section 19 of the Air Force Act, 1950 in that case, the learned Judge made the following observations :- SECTION 19 of the said Act provides the tenure of service to be during the pleasure of the President. Section 19 gives an absolute power to the Central Government to dismiss or remove from service any person-subject to this Act. It is abundantly recognised that Persons who enter the military service and take the States pay, and who are content to act under the Presidents commission, although they do nto cease to be citizens in respect of responsibility yet they do, by a compact which is intelligible, and which requires only the statement of it to the consideration of any one of common sense become subject to military rule and military discipline. In case of civil servants certain special safeguards have been provided by Article 311 of the constitution. Those safeguards admittedly do nto extend to the army personnel. Admittedly, no rules have been framed in this behalf and there is, therefore, no question of any violation thereof. If any rules bad been framed and violated, possibly dierent considerations may have arisen. As the law however stands at present it seems to recognise that employment in Army is nto a right but only a privilege by the

S.K. Rao v. Union Of India 1967 sovereign at will and ecient management demands that power to appoint should necessarily include the power to dismiss. In Army matters the legislature has conferred on the Government the same proprietary, rights as provided to employers to hire and re without restrictions............ With great respect, we are unable to agree with this view. It appears that distinction between sections 18 and 19 of the Air Force Act,1950,was nto urged before his Lordship and the eect of the words subject to the provisions of this Act occurring in section 19 of that Act, was nut taken into consideration (20) The rule of pleasure as laid down in Article 310 of tie Constitution has been embodied in section 18 of the Act. When the services of a person subject to the Act are terminated by an authority ether then the President, then it is incumbent on that authority to proceed in accordance with the provisions of the Act. No rule can be validly made under section 91 of the Act which may authorise the Central Government or any toher authority to exercise the power of dismiss I or removal in a manner inconsistent with any provision of the Act (21) In conclusion, we hold that rule 14 of the Rules is ultra vires the provisions of sections 19, 45 and 191 of the Act. The removal of the petitioner under rule 14 cannto be sustained as the order of removal suers from lack of jurisdiction. The petition is, therefore, accepted and the order, dated April 9, 1959 whereby

67 the Petitioner was removed from ser- stances of the case, there will be no vice, is qusahed. In the circum- order as to costs.

68

S.K. Rao v. Union Of India 1967

Chapter 5

Delhi Police Est v. Lt Col S K Loraiya 1972

DELHI SPECIAL POLICE ES- of more than three years between TABLISHMENT, NEW DELHI v. commission of oences and framing of chargesCourt martial whether has LT. COL. S. K. LORAIYA PETITIONER: DELHI SPE- jurisdiction to try oences-Word juCIAL POLICE ESTABLISHMENT, risdiction in s. 549(1) Cr. P.C. and s. 125 Army Act, meaning of. NEW DELHI HEADNOTE: The respondent who was an army ocer was alleged RESPONDENT: LT. COL. S. K. to have committed certain oences LORAIYA under the Indian Penal Code and the DATE OF JUDGMENT24/08/1972 Prevention of Corruption Act 1947. BENCH: DWIVEDI, S.N. The oences were alleged to have BENCH: DWIVEDI, S.N. SHELAT, been committed in the year 1962. The special judge, Gauhati charged J.M. PALEKAR, D.G. CITATION: 1972 AIR 2548 1973 him with these oences in the year SCR (1)1010 1972 SCC (2) 692 CI- 1967. The High Court quashed the TATOR INFO : R 1986 SC1655 (8) charges on the ground inter alia that the procedure in s. 549(1) Cr. P.C. RF 1987 SC1878 (4) and the rules made thereunder had ACT: Code of Criminal Procenot been followed. The appellant in dure 1898, s. 549(1) and rules appeal by special leave to this Court made thereunderArmy Act 1950, ss. contended that since more than three 122 and 125-Army ocer charged years had elapsed between the comwith oences under I.P.C. and Premission of the oences and the framvention of Corruption Act 1947 by ing of the charges the court martial Special Judge-Procedure under s. had in view of s. 122(1) of the Army 549(1) and r. 3 not followed-Charges Act ceased to have jurisdiction to whether liable to be quashed-Lapse v.

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Delhi Police Est v. Lt Col S K Loraiya 1972 and not the ordinary criminal court has got jurisdiction to decide the issue of limitation. If the court martial nds that it cannot try the oence on account of the expiry of three years from the commission of the oence the Central Government can under s.127 of the Act sanction the trial of the oender by an ordinary criminal court. [1014D-F] Section 125 of the Army Act provides that when a criminal court and a court martial have each jurisdiction in respect of an oence, it shall be in the discretion of the commanding ocer to decide before which court the proceedings shall be instituted. Section 125 supports the view that the court martial alone has jurisdiction to decide the issue as to limitation. [1014H] The word jurisdiction in s.125 really signies the initial jurisdiction to take congnizance of a case. It refers to the stage at which proceedings are instituted in a court and not to the jurisdiction of the ordinary criminal court and the court martial to decide the case on merits. Section 549(1) should be construed in the light of s.125 of the Army Act. Both the provisions have in mind the object of avoiding a collision between the ordinary criminal court and the court martial. Both of them should receive the same construction. [1015B] It was an admitted fact that in the present case the procedure specied in rule 3 was not followed by the Special Judge, Gauhati before framing charges against the respondent. Section 549(1) Cr.P.C. and rule 3 are mandatory. Accordingly the charges framed by the Special

try the said oences and therefore s. 549(1) and the rules made thereunder were not attracted to the case. HELD, Section 549(1) Cr. P.C. is designed to avoid the conict of jurisdiction in respect of oences which are triable by both the ordinary criminal court and the court- martial. The clause for which he is liable to be tried either by the court to which this code applies or by a courtmartial qualies the preceding clause when any person is charged with an offence in s. 549(1). Accordingly the phrase ,is liable to be tried either by a court to which this Code applies or a court martial imports. that the offence for which the accused is to be tried should be an oence of which cognizance can be taken by an ordinary criminal court as well as court martial. The phrase is intended to refer to the initial jurisdiction of the two courts to take cognizance of the case and not to their jurisdiction to decide on merits. It was admitted that both the ordinary criminal court and the court martial had concurrent jurisdiction with respect to the offences for which the respondent had been charged by the special judge. So s. 549 and the rules made thereunder were attracted to the case in hand. [1013H-1014C] Again, subsection (3) of s.122 of the Army Act provides that while computing the period of three years specied in subsection (1), any time spent by the accused as a prisoner of war or in enemy territory, or in evading arrest after the commission of the oence, shall be excluded. On a con- joint reading of sub-ss. (1) and (3) of s.122 it is evident that the court martial

71 Judge against the respondent could charges were framed by the Special not survive. [1013C] Judge without following the proceJUDGMENT: CRIMINAL AP- dure specied in the Rules made unPELLATE JURISDICTION : Crim- der s. 549 Cr.P.C.; and (2) the trial inal Appeal No. 79 of 1970. Ap- was held in the absence of a sancpeal by special leave from the judg- tion by the appropriate authority unment and order dated May 23, 1969 der S. 196A(2) of the Code of Crimof the Assam & Nagaland High Court inal Procedure in respect of the ofin Cr. Re- vision No. 31 of 1967. fences under s. 5 of the Prevention D. Mukherjee, G. L. Sanghi and R. of Corruption Act. The High Court N. Sachthey, for the appellant. A. took the view that such sanction was S. R. Chari and R. Nagaratnam, for essential as the oence under s. 5 the respondent. The Judgment of of the Prevention of Corruption Act the Court was delivered by. Dwivedi, is a non-cognizable oence. CounJ. The respondent, Lt. Col. S. K. sel for the appellant has submitted Loraiya, is in the army Service. In that both the reasons given by the November-December, 1962, he was High Court are erroneous. Taking posted as Commander, 625, Air Field up the rst reason rst, s. 5(1)(b) of Engineers, Tejpur. He was charged the Criminal Law Amendment Act, under s. 120B, Indian Penal Code 1966, could not give exclusive jurisread with s. 5 (1) (e) :and (d) and diction to the Special Judge, Gauhati s. 5(2) the Prevention of Corruption lo try the respondent. It is true that Act and under ss. 467 and 471 I.P.C. the trial started against him on June by the Special Judge, Gauhati, ap- 7, 1966, but the charges were framed pointed under the Prevention of Cor- on January 7, 1967, i.e., long after ruption Act, in respect of the oences June 7, 1966. Section 5(1)(b) does alleged to have been committed by not apply where charges are framed him in November-December, 1962, after June 7, 1966. So, prima facie as Commander, 625, Air Field En- both the ordinary criminal court and gineers, Tejpur. The trial started on court martial have concurrent jurisJune 7, 1966. but the charges were diction to try the respondent for the framed against him by the Special aforesaid oences. And S. 549(1) Judge on January 7, 1967. The re- Cr.P.C. applies to such a situa- tion. spondent led a revision against the The material part of S. 549(1) reads : framing of the charges in the High The Central Government may make Court of Assam and Nagaland. The rules consistent with this Code and High Court allowed the revision and the Army Act as to the cases in which quashed the charges. Hence this ap- persons subject to military law shall peal by the Delhi Special Police Es- be tried by a court which this Code tablishment, New Delhi, by special applies or by a court martial; and leave under Art. 136 of the Con- when any person is brought before stitution. The High Court quashed a Magistrate and charged with an the charges for two reasons : (1) The oence for which he is liable to be tried either by a court to which this

72

Delhi Police Est v. Lt Col S K Loraiya 1972 mitted fact in this case that the procedure specied in rule 3 was not followed by the Special Judge, Gauhati before framing charges against the respondent. Section 549 (1) Cr.P.C. and rule 3 are mandatory. Accordingly the charges, framed by the Special Judge against the respondent cannot survive. But counsel for the appellant has urged before us that in the particular circumstances of this case the respondent is not liable to be tried by a Court Martial. Section 122(1) of the Army Act, 1950, provides that no trial by court martial of any person subject to the Army Act for any oence shall be commenced after the expiry of the period of three years from the date of the oence. The oences are alleged to have been committed by the respondent in November-December, 1962,. So more than three years have expired from the alleged commission of the oence. It is claimed that having regard to s. 122(1), the respondent is not liable to be tried by courtmartial. This argument is built on the phrase is liable to be tried either by the court to which this Code applies or by a Courtmartial in s. 549(1). According to counsel for the appellant this phrase connotes that the ordinary criminal court as well as the Court Martial should not only have concurrent initial jurisdicdiction to take cognizance of the case but should also retain jurisdiction to try him upto the last stage of conviction or acquittal. We are unable to accept this construction of the phrase. As regards the trial of offences committed by, army men, the Army Act draws a threefold scheme.

Code applies or by a Courtmartial, such Magistrate shall have regard to such rules and shall in appropriate cases deliver him, together with a statement of the oence of which he is accused, to the commanding ocer of the regiment, corps . or detachment to which he belongs or to the commanding ocer of the nearest military station for the purpose of being tried by Court Martial. The Central Government has framed under s. 549(1) Cr. P.C. rules which are known as the Criminal Courts and Courts Martial (Adjustment of jurisdiction) Rules, 1952. The relevant rule for our purpose is rule 3. It requires that when a person subject to military, naval or air force law is brought before a Magistrate on accusation of an oence for which he is liable to be tried by a court martial also, the Magistrate shall not proceed with the case unless he is requested to do so by the appropriate military authority. He may, however, proceed with the case if he is of opinion that he should so proceed with the case without being requested by the said authority. Even in such a case, the Magistrate has to give notice to the Commanding Ocer and is not to make any order of conviction or acquittal or frame charges or commit the accused until the expiry of 7 days from the service of notice. The Commanding Ocer may inform the Magistrate that in his opinion the accused should be tried by the Courtmartial. Subsequent rules prescribe the procedure which is to be followed where the Commanding Ocer has given or omitted to give such information to the magistrate. It is an ad-

73 Certain oences enume- rated in the Army Act are exclusively triable by a Court- martial; certain other offences are exclusively triable by the ordinary criminal courts; and certain other oences are triable both by the ordinary criminal court and the court- martial. In respect of the last category both the courts have concurrent jurisdiction. Section 549(1) Cr. P.C. is designed to avoid the conict of jurisdiction in respect of the last category of oences. The clause for which he is liable to be tried either by the court to which this Code applies or by a court martial in our view, qualies the preceding clause when any person is charged with an oence in s. 549(1). Accordingly the phrase is liable to be tried either by a court to which this Code applies or a court martial imports that the offence for which the accused is to be tried should be an oence of which cognizance can be taken by an ordinary criminal court as well as a court martial. In our opinion, the phrase is intended to refer to the initial jurisdiction of. the two courts to take cognizance of the case and not to their jurisdiction to decide it on merits. It is admitted that both the ordinary criminal court and the Court Martial have concurrent jurisdiction with respect to the oences for which the respondent has been charged by the Special Judge. So, S. 549 and the rules made thereunder are attracted to the case at hand. Again, subsection (3) of s. 122 of the Army Act provides that while computing the period of three years spectied in sub-section any time spent by the accused as a prisoner of war or in enemy territory, or in evading arrest after the commission of the oence. shall be excluded. On a con joint reading of sub-ss. (1) and of S. 122, it is evident that the court martial and not the ordinary criminal court has got jurisdiction to decide the issue of limitation. There it nothing on record before us to indicate that the respondent had not been evading arrest after commission of the oence. As the court martial has initial jurisdiction to enter upon the enquiry in the case, it alone is competent to decide whether it retains jurisdiction to try the respondent inspite of subs. (1) of s. 122. The issue of limitation is a part of the trial before it. If the court- martial nds that the respondent cannot be tried on account of the expiry of three years from the date of the commission of the oence, he cannot be go scot free. Section 127 of the Army Act provides that when a person is convicted or acquitted by a court martial, he may, with the previous sanction of the Central Government, be tried again by an ordinary criminal court for the same oence or on the same facts. go it would be open to the Central Government to proceed against the respondent after the court martial has recorded a nding that it cannot try him on account of the expiry of three years from the date of the commission of the oence. Section 125 of the Army Act provides that when a criminal court and a court martial have each jurisdiction in respect of an oence, it shall be in the discretion of the ocer commanding the army, army corps division or independent brigade in which the accused person is serving to de-

74

Delhi Police Est v. Lt Col S K Loraiya 1972 be construed in the light of s. 126 of the Army Act. Both the provisions have in mind the object of avoiding a collision between the ordinary criminal court and the courtmartial. So both of them should receive a similar construction. In the result, we are of opinion that the High Court has rightly held that as the charges were framed without following the procedure specied in the rules framed under s. 549 (1) Cr. P.C., they cannot stand. As this nding of ours is sucient to dispose of this appeal, we are not expressing any opinion on the correctness or otherwise of the second reason assigned by the High Court for quashing the charges. The appeal is dismissed. G.C Appeal dismissed.

cide before which court the proceedings shall be instituted and if that ocer decides that they should be instituted before a court martial he will direct that the accused person shall be detained in military custody. Sections 12 (1) and 12 5 both nd place in Chapter X of the Army Act. Section 125 supports our view that the court- martial alone has jurisdiction to decide the issue of limitation under s. 122(1). The word jurisdiction in s. 125 really signies the initial jurisdiction to take cognizance of a case. To put it in other words, it refers to the stage at which proceedings are instituted in a court and not to the jurisdiction of the ordinary criminal court and the court martial to decide the case on merits. It appears to us that s. 549 ( 1) should

Chapter 6

Capt Harish Uppal v. Union Of India 1972

ACT: Captain Harish Uppal v. Union Of India And Others on 27 NovemArmy Act, 1950, Sections 158 ber, 1972 Equivalent citations: 1973 and 160-Upward revision of sentence AIR 258, 1973 SCR (2)1025 Bench: Whether violative of natural justice Alagiriswami, A. principle in the circumstances of the case. PETITIONER: Army Act, Section 160-Whether opportunity to be heard necessary v. when Conrming Ocer decides to RESPONDENT: send back the matter to the Court UNION OF INDIA AND OTH- Martial for considering upward reviERS sion of the sentence. DATE OF JUDGMENT27/11/1972 Army Act, Sections 112 and 157Whether the words authority and BENCH: Ocer denote dierent authorities. ALAGIRISWAMI, A. Army Act, Section 164-Whether opBENCH: portunity to be heard necessary beALAGIRISWAMI, A. fore conrmation of upward revision of sentence by the Army Chief of the VAIDYIALINGAM, C.A. Sta. CITATION: CAPTAIN HARISH UPPAL 1973 AIR 258 1973 SCR (2)1025 1973 SCC (3) 319 CITATOR INFO : RF 1991 SC 564 (5) RF 1991 SC1070 (6) HEADNOTE: The petitioner was found guilty by the Court Martial (acting under the Army Act) under section 392 IPC of committing robberies of a bank property and the private property

76

Capt Harish Uppal v. Union Of India 1972 justice inasmuch as that the Court Martial while re-considering the sentence did not act as a free agent, that no opportunity of being heard was given to the Ocer at the time of remand and at the time of the nal conrmation by the Army Chief of the Sta and that the revision was recommended by an ocer subordinate in rank to the ocer who convened the Court Martial. In dismissing the petition, HELD : (i) Sec. 158 of the Army Act describes the procedure regarding the re-consideration of the sentence by the Court Martial. In considering a petition led under Art. 32 of the Constitution, the only relevant Article is Art. 21, and the procedure established by law has been cornpletely followed in this case. The circumstances requiring the reconsideration pointed out by the Ocer Commanding were unexceptionable and there was no violation of the principle of natural justice. The petitioner failed to appear before the Court Martial in the fresh bearing. [1031 C-D] A. K. Kraipak & Ors. Etc. v. Union of India and Ors. [1970](1) SCR 457 and Purtabpore Co. Ltd. v. Cane Commissioner- of Bihar & Ors. [1969] (2) SCR 807, distinguished. (ii) No opportunity to be heard was necessary before the Conrming Ocer formed the opinion to send the case back to the Court Martial for re-consideration of sentence. [1032 C] (ii) The words authority and Ocer in Sec. 112 of the Army

of the Manager and peons of the Batik during the period of the liberation of Bangladesh, in Bangla Desh. The Court Martial sentenced the petitioner to be cashiered. When the matter went to the Ocer Commanding under whom the petitioner was working as an Ocer, for conrmation of the sentence u/s 153 of the Act, he returned the same to the Court Martial for re-considering whether the upward revision of sentence was necessary in the light of the observations made by the Conrming Ocer. The Conrming Ocer had pointed out in his report that the robberies were committed during the liberation of Bangladesh where the Indian Forces had gone as liberators and as guardians and custodians of the life and property of the people of Bangladesh. Considering the nature aid gravity and maintenance of high standard of discipline in the Armed Forces, the sentence awarded was not commensurate. The Conrming Ofcer further directed that the delinquent ocer should be given opportunity to address the Court, if he so de-sired, if the Court decides to enhance the sentence. In the fresh proceedings before the Court Martial, the Ocer did not present himself. The Court Martial revoked the earlier sentence and sentenced him to be cashiered and to suer rigorous imprisonment for two years. The said sentence was duly conrmed by the Chief of the Army Sta. in the petition challenging the legality of the order under Art., 32 of the Constitution, the petitioner contended that the impugned order was bad for the violation of the principle of natural

77 Act have one and the same meaning. The Ocer recommending the reconsideration of the sentence was also an Ocer commanding the Division though he was only ociating and was a Brigadier. The actual conrmation of the enhanced sentence was made by the Chief of Army Sta who was higher in rank than the convening Ocer. [1033 C] (iv) In the face of the very clear indication in the Constitution, the provisions of Code of Criminal Procedure cannot be adopted in respect of Court Martial. It is as open to the petitioner to make a petition to the Chief of the Army Sta under section 164 of the Army Act which he did not do. [1O33 H] JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 456 of 1972. Petition under Article 32 of the Constitution of India for a writ in the nature of habeas corpus. A. K. Sen and B. Datta for the petitioner. F. S. Nariman. Addl. Solicitor-General of India, B. D. Sharma and S. P. Nayar for the respondents. The Judgment of the Court was delivered by ALAGIRISWAMI, J. The petitioner was an ocer of the Indian Army who served in Bangla Desh. On 11th December, 1971 he was in a place called Hajiganj. He was tried before the Summary General Court Martial on the charge of committing robbery at Hajiganj by causing fear of instant hurt to the Custodian of the United Bank Ltd., of certain properties belonging to the Bank and also the personal property of the Manager of the Bank as well as of a Chowkidar of the Bank. The Court sentenced the petitioner to be cashiered. This sentence was subject to conrmation under the provisions of Chapter XII of the Army Act, Maj-Gen. Hira, General Ocer Commanding, 23 Mountain Division, of which the petitioner was an ocer, passed an order directing the revision of the sentence. Thereafter the petitioner was brought before the same Court Martial, as had tried him earlier, and he was asked whether he wanted to address the Court. On receiving a reply in the negative, the Court, after considering the observations of the conrming authority, revoked the earlier sentence which they had imposed on the petitioner and sentenced him to be cashiered and to suer rigorous imprisonment for two years. Brig. D. P. Bhilla, the Ociating General Ofcer Commanding 23 Mountain Division, referred the nding and sentence for conrmation to the Chief of the Army Sta, who in due course conrmed the nding and the sentence. The present petition is led under Article 32 of the Constitution for quashing the order passed by the Chief of the Army Sta, after setting aside the order passed by Maj-Gen. Hira. Shri A. K. Sen appearing on behalf of the petitioner raised four points in support of his contention that the order passed against, the petitioner should be quashed: 1. The authority to conrm the sentence passed by a Court Martial does not confer on the conrming authority the power to enhance the sentence. That authority cannot, there-

78

Capt Harish Uppal v. Union Of India 1972 in section 71. Under Section 160, any nding or sentence of a court martial which requires conrmation may be once revised by order of the conrming authority and on such revision, the court, if so directed by the conrming authority, may take additional evidence. Even after revision the sentence passed by the court martial would have to be conrmed because of provision of Section 153. The order passed by MajGen. Hira directing revision of the sentence passed by the court martial is as follows : The Summary General Court Martial, which assembled at Field, on 9 March 1972 and subsequent days for the trial of IC-16394 Substantive Lieut (Actg. Capt.) HARISH UPPAL, Arty, 198 Mountain Regiment, will reassemble in open court on 15 May 1972 at Field at 1000 hrs for the purpose of reconsidering the sentence awarded by it, whilst in no way intending the quantum of punishment to be awarded, the court should fully take into consideration the following observations of the Conrming Ocer. 2. The accused was convicted by the Court, under Army Act Section 69 for committing a civil oence, that is to say, Robbery, contrary to section 392 of the Indian Penal Code, the particulars hereby averred that he, at HAJIGANJ (BANGLA DESH) on 11 December 1971, by causing fear of instant hurt to the Custodians committed Robbery in respect of the undermentioned articles, the property belonging to the persons indicated as follows (a) The

fore, achieve that object indirectly by directing the revision of the sentence. The Court Martials verdict should be unfettered. 2. In any case, the conrming authority should have given a hearing to the aected party. 3. The conrmation can be made only by the ocer who convened the Court Martial and not by a dierent ocer as was done in this case. 4. The ocer who nally conrmed the sentence on the petitioner should also have heard the petitioner. (1) The ocer who convened the Summary General Court Martial, which tried the petitioner, was MajGen. Hira. It was he that directed the revision of the sentence passed on the petitioner. The argument is that this order was in such terms that the Court Martial which revised the sentence was compelled to and was left with no alternative but to enhance the sentence and that this was against all principles of natural justice. Under Section 153 of the Army Act no nding of a Court Martial shall be valid except so far as it may be conrmed as provided under the Act. Under Section 157 the ndings and sentences of summary general courts martial may be conrmed by the convening ocer or if he so directs, by an authority superior to him. Under Section 158, a conrming authority may, when conrming the sentence of a court martial, mitigate or remit the punishment thereby awarded, or commute that punishment for any punishment or punishments lower in the scale laid down

79 property of the United Bank Ltd. the oence under IPC Sec. 392 is COMILLA Dist. 10 years RI. Even though the proper (i) Cash in Pakistan Currency. amount of punishment to be inicted Rs. 11,222.91 (ii) 28-12 Bore guns is the least amount by which disciRegistered Two with s No. 027373 pline can be eectively maintained, it is nevertheless equally essential that and 342. cartridges. the punishment awarded should be (iii) Wall clock. One appropriate and commensurate with (iv) Telephone Set Auto TIP One the nature and gravity of the of(Sky Blue) fence and adequate for the mainte(v) Telephone CE without One nance of the high standard of discipline in the Armed Forces. It should hand set (Black) be clearly borne in mind that our (vi) Pens (eagle) Two Forces had been ordered to march (vii) Locks with four keys TWO into BANGLADESH as the libera(viii) Winter uniform of peons tors of the oppressed people who had and Two pairs guard. been subjected to untold torture and (b) Personal property of Shri miseries at the hands of Pak troops. MAKALAM, Manager, United Bank It is, therefore, clear that our Forces Ltd., HAJIGANJ Branch: Wrist had gone there as guardians and custodians of the lives and property of Watch (Romer popular) One (c) Personal property of Shri the persons of that country. The conHabibullah, Chowkidar, United duct of the accused by indulging in Bank Ltd., Hjiganj Branch: PAK- broad day light bank robbery is despicable and his stooping so low as ISTAN Currency Rs. 6/to deprive Shri HABIBULLAH (PW3. It is, therefore, apparent 2), Chowkidar of the United Bank that apart from the property of the Ltd., of paltry amount of Rs. 6 United Bank, Ltd., the accused com- in Pak currency as also his taking mitted robbery in respect of the per- away the Romer Wrist watch from sonal properties of its two custodi- Shri MAKALAM (PW-4), Manager ans at a time when the War of lib- of the said Bank, is indeed highly eration of BANGLADESH was still reprehensible. Such actions on the being waged on some fronts though part of responsible ocer of the Inthe hostility in the town had ceased dian Army are calculated to bring a in HAJIGANJ area and the situation blot on the fair name of the Indian was fast returning to normalcy. Army. It is, therefore, our imperative 4. It would be appreciated that duty to ensure that such cases dealt the charge of which the accused was with rmly when a verdict of guilty convicted is of a very serious na- has been returned by the court. ture. The punishment of Cashiering, 5. There are certain norms and therefore, awarded for the oence ap- standards of behaviour laid down in pears to be palpably lenient. The the Armed Forces for strict adhermaximum punishment provided for

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Capt Harish Uppal v. Union Of India 1972 General Ocer Commanding the Division the ocers constituting the court martial would have felt compelled to enhance the sentence and the revised sentence passed on the petitioner was not the free act of the court martial but one forced on them by the Ocer Commanding and that this militates against the principle of natural justice. But it should be remembered that under the provisions of the Army Act set out earlier the conrming authority could himself mitigate or remit the punishment awarded by the court martial or commute that punishment for any lower punishment and, therefore, when a sentence is directed to be revised by the conrming authority it necessarily means that the conrming authority considers that the punishment awarded by the court martial is not commensurate with the oence and it should, therefore, be revised upwards. To object to this is to object to the provisions of section 158 itself. A direction by the conrming authority merely showing that the punishment awarded by the court martial is not commensurate with the oence, would be certainly unexceptionable and would be in accordance with- the provisions of law. Instead of baldly stating so the conrming authority in this case has given reasons as to why he considers that the punishment awarded to the petitioner was wholly inadequate.

ence by persons who have the honour to belong to the Corps of Ocers of the Indian Army. A person of the rank, of an ocer, who indulges in such an oence, should, therefore, be awarded suitable punishment. In the course of six years commissioned service he had once been convicted under Army Act Sect-ion 41(2) for disobeying a lawful command given by his superior ocer in the execution of his duties for which he was severely reprimanded on 13 June 1970. 6. The accused/or his defending ocer/counsel should be given an opportunity to address the court, if so desired. The court should then carefully consider all the above and should they decide to enhance the sentence, then the fresh sentence should be announced in open court as being subject to conrmation. 7. The, attention of the court is drawn to Army Act Section 160, Army Rule 68 and the form of proceedings on revision given on page 370 of N1ML (1961 Reprint), which should be amended to conform to the provisions of Army Rule 67(1). 8. After revision, the proceedings shall be returned to this Headquarters. Sd/(R. D. HIRA) Maj-Gen. General Ocer Commanding 23 Mtn Div. Field

We consider that the reasons, given by him cannot be taken exception to. It was urged that the con03 May 1972. It was contended that in the face rming authority proceeded on the of such strong observations by the basis that in respect of the charges

81 against the petitioner the evidence available was as he had set out in his order directing revision and that this was not correct. We must point out that this Court cannot go into the evidence in support of the charge against the petitioner. Indeed the court martial itself could not have set out the evidence against the petitioner; it should have only given the nding and the sentence. Under the provisions of Article 136(2) of the Constitution this Court cannot grant special leave in respect of any judgment, determination or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces. In considering a petition led under Article 32 of the Constitution this Court can only consider whether any fundamental right of the petitioner has been violated and the only Article relevant is Article 21 of the Constitution. There is no doubt that the procedure estab- lished by law as required under that Article has been completely followed in this case. It is, however, urged that the decisions of this Court have laid down that the rules of natural- justice operate in areas not covered by any law validly made and that they do not supplant the law of the land but supplement it and, therefore, though the procedure established by law may have been followed as required under Article 21, the principles of natural justice should also be followed. The cases relied on are A. K. Kraipak & Ors. etc. v. Union of India & Ors. (1) and Purtabpore Co. Ltd. v. Cane Commissioner of Bihar & Ors. (2). This Court in the rst decision had pointed out that what particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held and the constitution of the tribunal or body of persons appointed for that purpose. It was also pointed out that the Court has to decide whether the observance of that rule was necessary for a just decision and that the rule that enquiries must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice. There is no analogy between the facts of that case and the present and applying the ratio of that to the facts of this case we are not satised that any rule of natural justice has been violated. The latter was a case where the authority competent to pass the order had simply passed an order adopting what the Minister had directed and had not applied his mind. The facts of this case are quite dierent. The conrming authority while pointing out the facts had left the discretion regarding the punishment to be imposed to the court (1) [1970] 1 S.C.R. 457.(2) [1969] 2 S.C.R. 807 martial. If the court martial in spite of the direction given by the conrming authority had rearmed its original order, the conrming authority could do nothing because it can exercise its power of directing revision only once, and that power was already exhausted. Furthermore, when the court martial reassembled to revise its earlier order under the directions

82

Capt Harish Uppal v. Union Of India 1972 also made it clear,. that the court martial was not bound by his opinion by stating that should the court martial decide to enhance the sentence the fresh sentence should be announced in open court as being subject to conrmation. Right in the beginning of his order he had also stated Whilst in no way intending the quantum of punishment to be awarded, the court should fully take into consideration the following observations. To hold in the circumstances that the conrming authority should have, heard the appellant before he directed the revision of the sentence passed on him would not be a requirement of principle of natural justice. In the circumstances and facts of a case like the present one where the petitioner had an opportunity of putting forward whatever contentions he wanted to rely upon before the court martial, we do not consider that there is any- substance in this contention. 3) The contention here was that while the court martial was convened by a Maj-General the ocer who directed revision was a Brigadier, and that only the convening ocer can conrm or direct revision. This is perhaps the one contention with the least substance put forward on behalf of the petitioner. The contention is based on the words found in Section 157 of the Army Act that the ndings and sentences of summary general courts martial may be conrmed by the convening ocer or if he so directs, by an authority superior to him. The words convening ocer and an authority superior to him are

of the conrming authority, the petitioner was given the reasons of the conrming ocer for requiring revision and asked whether he wanted to address, the court, he replied in the negative. It was open to him to have pointed out to the court martial how the observations of the conrming authority were wrong, how they were not borne out by the evidence on record. Having failed to avail himself of the opportunity accorded to him, the petitioner cannot be now heard to complain that he was not given an opportunity by the conrming authority before he directed revision. The court martial had originally found the petitioner guilty of the charge of robbery, under Section 392 of the Indian Penal Code. There was, therefore, no question of the court martial, when it proceeded to reconsider the matter, of reconsidering the nding of guilty. Therefore, any attempt to question the order of the conrming authority on the basis that he relied upon facts which were not proved for directing revision, is wholly beside the point. And as far as the question of sentence is concerned, one cannot quarrel with the sentiments expressed by the conrming authority. We nd ourselves unable, therefore, to agree to petitioners contention that the order of the conrming authority directing revision is in any way vitiated. (2) We have already held above that the conrming authority, when he directed a revision of the sentence passed on the petitioner, was only exercising the powers conferred on him by Section 160 of the Army Act. He

83 sought to be contrasted and it is argued that while a conrmation can only be by a convening ocer and by no other, the authority superior to hi-in may also conrm showing that in the latter case neither the rank of authority nor the person holding the post is relevant. Section 112 of the Act which deals with the power to convene a summary general court martial shows that this attempted distinction between authority and ocer is without substance. The ocer is the authority and the authority is the ocer. Both the words refer only to one person. To accept this argument would mean that if the ocer who convened the court martial is transferred to a distant place or retires or is dead, the whole procedure would have to be gone through again. A useful comparison will be of decisions under Article 311 of the Constitution where it has been held that the power to dial with an ofcer under that Article can be exercised even by an authority lower in rank to the authority which originally appointed the ocer, if at the, relevant period of time that authority was competent to appoint the ofcer sought to be dealt with. It may be noted that in this case the ocer who convened the court martial was a Maj-General Ocer Commanding the 23rd Mountain Division, and the ocer who directed that the ndings and sentence should be conrmed by the Chief of Sta was also the ocer Commanding the same Division, though he was only ociating and was a Brigadier. The conrmation itself was by the Chief of Army Sta, higher in rank than the convening ofcer. (4) The contention that Bring Bhilla should either have given a hearing to the petitioner or the Chief of Army Sta should have given a hearing to the petitioner before conrming the subsequent sentence by the court martial is not a requirement under the Act. While it can be at least said that there is some semblance of reasonableness in the contention that before he ordered what in eect was an upward revision of the sentence passed on the petitioner, he should have been given a hearing, to insist that the conrming authority should give a hearing to the petitioner before it conrmed the sentence passed by the court martial, is a contention which cannot be accepted. To accept this contention would mean that all the procedure laid down by the Code of Criminal Procedure should be adopted in respect of the court martial, a contention which cannot be accepted in the face of the very clear indications in the Constitution that the provisions which are 1034 applicable to all the civil cases are not applicable to cases; of Armed Personnel. It is not a requirement of the principles of natural justice. Indeed when he was informed that the subsequent sentence passed on him had been sent to the Chief of the Army Sta for conrmation it was open to the petitioner to have availed himself of the remedy provided tinder Section 164 of presenting a petition to the conrming ocer, i.e. the Chief of the Army Sta in this case. He does not appear to have done so.

84

Capt Harish Uppal v. Union Of India 1972

We are, therefore, of the opinion that and dismiss it. there are no merits in this petition S.B.W. Petition dismissed.

Chapter 7

O K Achudan Nair v. Union of India 1975

Ous Kutilingal Achudan Nair & tution provides an exception to the Ors v. Union of India & Ors [1975] Preceding Articles in Part III including Act. 19(1)(c). By Art. 33, ParINSC 284 (20 November 1975) SARKARIA, RANJIT SINGH liament is empowered to enact law SARKARIA, RANJIT SINGH RAY, determining to what extent any of A.N. (CJ) BEG, M. HAMEEDUL- the rights conferred by Part III shall. in their application to the members LAH SHINGAL, P.N. of the armed forces or forces charged CITATION: 1976 AIR 1179 1976 with the maintenance of public order, SCR (2) 769 1976 SCC (2) 780 be restricted or abrogated so as to CITATOR INFO: ensure the proper discharge of their F 1983 SC 658 (10) E&R 1987 SC duties and the maintenance of discipline among them. [770GH, 771A] 379 (10) F 1987 SC 413 (2) By virtue of s. 2(l) of the Army Act, ACT: the Central Government was comConstitution of India, 1950-Art. petent to make rules restricting or 33-Scope of. curtailing the Fundamental Rights of Army Act, 1950, S.. 2(1)-Civilian civilian employees of Defence Estabemployees of defence establishments- lishments to form trade unions under If could form trade unions. Art. HEADNOTE: 19(1)(c) of the Constitution. AlOn the question whether civilian though they are non- combatants and employees of Defence Establishments are in some matters governed by have the right to form trade unions the civil service regulations, yet they under Art, 19(1) (c) of the Constitu- are? integral to the armed forces. They answer the description of the tion, HELD: Article 33 of the Consti- members of the armed forces within

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O K Achudan Nair v. Union of India 1975

the contemplation of Art. 33. [771- mandant also issued a notice to the B-D] appellants to show cause why disciCIVIL APPELLATE JURIS- plinary action be not taken against DICTION: Civil Appeal No. 18 1 them for forming this unlawful association. of 1974. Appeal by special leave from the judgment and order dated the 18th June 1974 of the Andhra Pradesh High Court at Hyderabad in Writ Appeal No. 460 of 1974. K. R. Nambiar for the appellant. The main ground taken in the petition was that the impugned action was violative of their fundamental right to form associations or Unions conferred by Art. 19(1)(c) of the Constitution.

In their reply-adavit, the reL. N. Sinha, Sol. General of India spondents averred that the Civilian and Girish Chandra for respondents. Non-Combatants in the Defence EsThe Judgment of the Court was tablishments were governed by the delivered by SARKARIA, J. This is Army Act and were duly prohibited an appeal by special leave against by Rules framed thereunder from a judgment of the High Court of joining or forming a Trade Union; Andhra Pradesh. The appellants are that the associations in question were oce-bearers of the Civil Employees formed in breach of that prohibition, Unions in the various Centers of the and were therefore, validly declared Defence Establishments of Secunder- illegal. abad and Hyderabad. They led a The learned Judge of the High writ petition in the High Court to imCourt, who tried the petition, held pugn the authority of the Commanthat the right of the appellants to dants (Respondents 2 and 3 herein) form associations given by Art. 19(1) in declaring the Unions, represented (c) of the Constitution, had been by the appellants as unlawful associlawfully taken away. He accordingly ations. dismissed the petition. The Registrar of Trade-Unions The appellants carried an appeal had issued Certicates of Registrato the appellate Bench of the High tion to the four Unions represented Court. The Bench dismissed the apby the appellants between 1954 and peal holding that the impugnea ac1970. The General Secretary of Class tion was not without jurisdiction. IV, Civil Employees Union, Bolaram, The main contention of Mr. K. Secunderabad was informed, per letR. Nambiyar, appearing for the apter dated 770 12-5-1971, by the Under Secretary of the Government of pellants is that the members of the India, Ministry of Defence that their Unions represented by the appelUnions could not be granted recogni- lants, though attached to the Detion as these employees being in the fence Establishments, are civilians, Training Establishments, were not designated as Non- Combatants UnThey include cooks, entitled to form Unions. The Com- Enrolled.

87 chowkidars, laskars, barbers, carpenters, mechanics, boot makers, tailors etc. They are governed by the Civil Service Regulations for purposes of discipline, leave, pay etc. and are also eligible to serve upto the age of 60 years unlike that of the members of the Armed Forces. In view of these admitted facts, proceeds the argument, these categories of civilian employees, attached to the Defence Establishments, could not be validly called members of the Armed Forces covered by Art. 33 of the Constitution. The points sought to be made out are: that the members of the appellants Unions are not subject to the Army Act as they do not fall under any of the categories enumerated in sub-clauses (a) to (i) of s. 2 of the Army Act, 1950, and that the impugned notications are ultra vires the Army Act and are struck by Arts. 19(1)(c) and 33 of the Constitution. For reasons that follow, the contentions must be repelled. Article 33 of the Constitution provides an exception to the pre ceding Articles in Part III including Art. 19(1) (c). By Article 33, Parliament is empowered to enact law determining to what extent any of the rights conferred by Part III shall, in their application, to the members of the Armed Forces or Forces charged with the main tenance of public order, be restricted or abrogated so as to ensure 771 the proper discharge of their duties and the maintenance of discipline among them. any of the fundamental rights of the members of the Armed Forces, Parliament derives its competence from Art.33 of the Constitution. Section 2(1) of the Act enumerates the persons who are subject to the operation of this Act. According to sub-clause (i) of this section, persons governed by the Act, include persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specied by the Central Government by notication in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the regular army. The members of the Unions represented by the appellants fall within this category. It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march. Although they are noncombatants and are in some matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the members of the Armed Forces within the contemplation of Art. 33. Consequently, by virtue of s. 21 of the Army Act, the Central Government was competent by notication to make rules restricting or curtailing their fundamental rights under Art. 19(1) (c). Rule 19(ii) of the Army Rules, 1954, imposes a restriction on the fundamental rights in these terms. No persons subject to the Act shall without the express sanction of the Central Government:

In enacting the Army Act, 1950, (i) xx xx xx (ii) be a member of, in so far as it restricts or abrogates or be associated in any way with, any

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O K Achudan Nair v. Union of India 1975 ments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act. Section 9 of the Army Act further empowers the Central Government to declare by notication, persons not covered by s. (i) of s. 3 also as persons on active service. 772 In view of these notications issued under s.4 of the Defence of India Act and the Army Rules, the appellants can no longer claim any fundamental right under Art. 19 (1) (c) of the Constitution. The appeal fails and is dismissed. There will be no order as to costs.

trade union or labour union, or any class of trade or labour unions In exercise of its powers under s.4 of the Defence of India Act, the Government of India has by notication dated 11-2-1972, provided that all persons not being members of the Armed Forces of the Union, who are attached to or employed with or following the regular Army shall be subject to the military law. The Army Act, 1950, has also been made applicable to them. By another notication dated 23-2-1972, issued under r.79, of the Army Rules, civilian employees of the training establish-

Chapter 8

Maj Gen D.S. Nakara v. Union Of India 1982

D.S. Nakara Others vs Union Of India on 17 December, 1982 Equivalent citations: 1983 AIR 130, 1983 SCR (2) 165 Bench: Desai, D.A. PETITIONER: D.S. NAKARA OTHERS v. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT17/12/1982 BENCH: DESAI, D.A. BENCH: DESAI, D.A. CHANDRACHUD, Y.V. ((CJ) TULZAPURKAR, V.D. REDDY, O. CHINNAPPA (J) ISLAM, BAHARUL (J) CITATION: 1983 AIR 130 1983 SCR (2) 165 1983 SCC (1) 305 1982 SCALE (2)1213 CITATOR INFO : R 1983 SC 937 (34) R 1984 SC 121 (28) R 1984 SC1064 (18) R 1984 SC1247 (1) RF 1984 SC1361 (19) RF 1984 SC1560 (2) F 1985 SC1196 (2,7) D 1985 SC1367 (39,43) RF 1986 SC 210 (19,20,22,26) R 1986 SC 584 (1) R 1986 SC1907 (1,2) R 1987 SC 943 (8) RF 1987 SC2359 (17) D 1988 SC 501 (3,4,6,7) RF 1988 SC 740 (13) D 1988 SC1291 (9) R 1988 SC1645 (8) D 1989 SC 665 (7) F 1989 SC2088 (7) R 1990 SC 334 (104) RF 1990 SC 883 (6) E 1990 SC1760 (9)

90

Maj Gen D.S. Nakara v. Union Of India 1982 RF 1990 SC1923 (3) D 1990 SC2043 (2,7) Forces personnel retiring on or after April 1, 1979. Petitioners 1 and 2 who had retired in the year 1972 from the Central Civil Service and the Armed Forces service respectively, and petitioner No. 3, a registered society espousing the cause of pensioners all over the country, challenged the validity of the above two memoranda in so far as the liberalisation in computation of pension had been made applicable only to those retiring on or after the date specied and the benet of liberalisation had been denied to all those who had retired earlier.

E 1991 16,18,19,23)

SC1182

(6

TO

RF 1991 SC1743 (1,2,4) R 1992 SC 96 (11) R 1992 SC 767 (2,4,TO 8,10) ACT:

Constitution of India, Art. 14Central Civil Services (Pension) Rules, 1972 and Regulations governing pension for Armed Forces Personnel-Liberalisation in computation of pension eective from specied date-Divides pensioners so as to Counsel for petitioners contended confer benet on some while denying that all pensioners entitled to receive it to others- Classication arbitrary, pension under the relevant rules form devoid of rational nexus to object of a class irrespective of the dates of liberalisation and violative of Art. 14 their retirement and there cannot be Constitution of India, Art. 14- a mini-classication within this class; Doctrine of severability-Severance that the dierential treatment acmay have eect of enlarging scope of corded to those who had retired prior legislation. to the specied date is violative of Rules and Regulations governing Art. 14 as the choice of specied date grant of pension- Pension is a right- is wholly arbitrary and the classicaDeferred portion of compensation for tion based on the fortuitous circumservice rendered-Also a social-welfare stance of retirement before or subsequent to the specied date is invalid; measure. and that the scheme of liberalisation HEADNOTE: in computation of pension must be By a Memorandum dated May uniformly enforced with regard to all 25, 1979 (Exhibit P-1) the Govern- pensioners. ment of India liberalised the formula Counsel for respondents confor computation of pension in respect tended that a classication based on of employees governed by the Central Civil Services (Pension) Rules, the date of retirement is valid for the 1972 and made it applicable to em- purpose of granting pensionary benployees retiring on or after March 31, ets; that the specied date is an 1979. By another Memorandum is- integral part of the scheme of libersued on September 23, 1979 (Exhibit alisation and the Government would P-2) it extended the same, subject never have enforced the scheme deto certain limitations, to the Armed void of the date; that the doctrine

91 of severability cannot be invoked to sever the specied date from the scheme as it would have the eect of enlarging the class of pensioners covered by the scheme and when the legislature has expressly dened the class to which the legislation applies it would be outside the judicial function to enlarge the class; that there is not a single case where the court has included some category within the scope of provisions of a law to maintain its constitutionality; that since the scheme of liberalisation has nancial implications, the Court cannot make it retroactive; that if more persons divided the available cake the residue falling to the share of each, especially to the share of those who are not before the court would become far less and therefore no relief could be given to the petitioners that pension is always correlated to the date of retirement and the court cannot change the date of retirement and impose fresh commutation benet which may burden the exchequer to the tune of Rs. 233 crores; and that the third petitioner has no locus standi in the case. Allowing the petitions, HELD: Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is attracted where equals are treated dierently without any reasonable basis. The principle underlying the guarantee is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same. Article 14 forbids class legislation but permits reasonable classication for the purpose of legislation. The classication must be founded on an intelligible dierentia which distinguishes persons or things that are grouped together from those that are left out of the group and that dierentia must have a rational nexus to the object sought to be achieved by the statute in question. In other words, there ought to be causal connection between the basis of classication and the object of the statute. The doctrine of classication was evolved by the Court for the purpose of sustaining a legislation or State action designed to help weaker sections of the society. Legislative and executive action may accordingly be sustained by the court if the State satises the twin tests of reasonable classication and the rational principle correlated to the object sought to be achieved. A discriminatory action is liable to be struck down unless it can be shown by the Government that the departure was not arbitrary but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. [176 B, 178 D-E, 179 B-C, 177 CD, 179 C-D, 176 E-F, 179 H, 180 A-C] Maneka Gandhi v. Union of India, [1978] 2 S.C.R. 621; Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar Ors., [1959] S.C.R. 279; In re Special Courts Bill, [1979] 2 S.C.R,

92

Maj Gen D.S. Nakara v. Union Of India 1982 putation of pension average emoluments of the last 36 months service of the employee provided the measure of pension. By the liberalised scheme, it is now reduced to average emoluments of the last 10 months service. Pension would now be on the higher side on account of two fortuitous circumstances, namely, that the pay scales permit annual increments and usually there are promotions in the last one or two years of the employees service. Coupled with it a slab system for computation has been introduced and the ceiling of pension has been raised. Pensioners who retired prior to the specied date would suer triple jeopardy, viz., lower average emoluments, absence of slab system and lower ceiling. [191 A-D] (iii) Both the impugned memoranda do not spell out the raison detre for liberalising the pension formula. In the adavit in opposition it is stated that the liberalisation was decided by the government in view of the persistent demand of the employees represented in the scheme of Joint Consultative Machinery. This would clearly imply that the pre-liberalised scheme did not provide adequate protection in old age, and that a further liberalisation was necessary as a measure of economic security. The government also took note of the fact that continuous upward movement of the cost of living index and diminishing purchasing power of rupee necessitated upward revision of pension. When the government favourably responded to the demand it thereby

476; E.P Royappa v. State of Tamil Nadu, [1974] 2 S.C.R. 348; Ajay Hasia etc. v. Khalid Mujib Sehravardi Ors., [1981] 2 S.C.R. 79; Air India etc. v. Nargesh Meerza Ors., [1982] 1 S.C.R. 438 and Ramana Dayaram Shetty v. International Airport Authority of India Ors., [1979] 3 S.C.R. 1014, referred to. In the instant case, looking to the goals for the attainment of which pension is paid and the welfare State proposed to be set up in the light of the Directive Principles of State Policy and Preamble to the Constitution it indisputable that pensioners for payment of pension from a class. When the State considered it necessary to liberalise the pension scheme in order to augment social security in old age to government servants it could not grant the benets of liberalisation only to those who retired subsequent to the specied date and deny the same to those who had retired prior to that date. The division which classied the pensioners into two classes on the basis of the specied date was devoid of any rational principle and was both arbitrary and unprincipled being unrelated to the object sought to be achieved by grant of liberalised pension and the guarantee of equal treatment contained in Art. 14 was violated inasmuch as the pension rules which were statutory in character meted out dierential and discriminatory treatment to equals in the matter of computation of pension from the dates specied in the impugned memoranda. [190 F-H, 194 A-C, 194 F-H] (ii) Prior to the liberalisation of the formula for com-

93 ipso facto conceded that there was a larger available national cake, part of which could be utilised for providing higher security to retiring employees. With this underlying intendment of liberalisation, it cannot be asserted that it was good enough only for those who would retire subsequent to the specied date but not for those who had already retired. [191 F-G, 192 A, 191 H, 192 B] 2. If removal of arbitrariness can be brought about by severing the mischievous portion, the discriminatory part ought to be removed retaining the benecial portion. [198 F] In the instant case, the petitioners do not challenge, but seek the benet of the liberalised pension scheme. Their grievance is of the denial to them of the same by arbitrary introduction of words of limitation. There is nothing immutable about the choosing of an event as an eligibility criteria subsequent to a specied date. If the event is certain but its occurrence at a point of time is considered wholly irrelevant and arbitrarily selected having an undesirable eect of dividing a homogeneous class and of introducing discrimination the same can be easily severed and set aside. It is therefore just and proper that the words introducing the arbitrary fortuitous circumstance which are vulnerable as denying equality be severed and struck down. In Exhibit P-1 the words: That in respect of the Government servants who were in service on the 31st March, 1979 and retiring from service on or after that date, and in Exhibit P-2, the words: the new rates of pension are effective from Ist April 1979 and will be applicable to all service ocers who became/become noneective on or after that date are unconstitutional and are struck down with the specication that the date mentioned therein will be relevant as being one from which the liberalised pension scheme becomes operative. Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specied date, irrespective of the date of retirement. Arrears of pension prior to the specied date as per fresh computation is not admissible. [190A-C, 198 G, 198 E-F, 205 F-H, 209 F-H, 210 A-D] D.R. Nim v. UNion of India, [1967] 2 S.C.R. 325; and Jaila Singh Anr. v. State of Rajasthan Ors., [1975] Supp. S.C.R. 428, relied on. Union of India Anr. v. M/s. Parameswaran Match Works etc., [1975] 2 S.C.R. 573; and D.C. Gouse Co. etc. v. State of Kerala Anr. etc., [1980] 1 S.C.R. 804, explained and distinguished. Louisville Gas Co. v. Alabama Power Co., 240 U.S. 30 [1927], referred to. (ii) The reading down of the impugned memoranda by severing the objectionable portion would not render the liberalised pension scheme vague, unenforceable or unworkable. The Court is not legislating in reading down the memoranda; when the

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Court strikes down the basis of classication as violative of Art. 14 it merely sets at naught the unconstitutional portion retaining the constitutional portion. There is no difculty in implementing the scheme omitting the event happening after the specied date, retaining the more human formula for computation of pension. The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the Third Pay Commission but becoming operative from the specied date. The Court is satised that the additional nancial liability that may be imposed by bringing 169

down the Parliament would not have enacted the measure. The executive, with parliamentary mandate, liberalised the pension scheme. It is implicit in the scheme that the need to grant a little higher rate of pension to the pensioners was considered eminently just. One could have understood persons in the higher pay bracket being excluded from the benet of the scheme because it would have meant that those in the higher pay bracket could fend for themselves. Such is not the exclusion. The exclusion is of a whole class of people who retired before a certain date. Parliament would not have hesitated to extend the benet otherwise considered eminently just and this becomes clearly discernible from in pensioners who retired prior p.35 of the 9th Report of the Comto April 1, 1979 within the fold of mittee on Petitions (6th Lok Sabha), the liberalised pension scheme is not April 1979. [206 H, 207 A-E] too high to be unbearable or such (v) Whenever classication is as would have detracted the Govern- held to be impermissible and the ment from covering the old pension- measure can be retained by removers under the scheme. The severance ing the unconstitutional portion of of the nefarious unconstitutional part the classication, the resultant eect does not adversely aect future pen- may be of enlarging the class. In such sioners and their presence in these a situation the court can strike down petitions is irrelevant. the words of limitation in an enact[204 G-H, 197 E-F, 206 B, 196 G, ment. That is what is called reading 208 G, 199 B] (iii) To say that by down the measure. There is no prinits approach the Court is restructur- ciple that severance limits the scope ing the liberalised pension scheme is of legislation but can never enlarge it. to ignore the constitutional mandate. [205 B-C] Jaila Singh Ors. v State of The Court is not conferring benets Rajasthan Ors., [1975] Supp. S.C.R. by its approach; it is only removing 428 and Randhir Singh v. Union of the illegitimate classication and af- India Ors. [1982] 1 S.C.C. 618, relied ter its removal the law takes its own on. course. [206 D-E] (vi) The absence of precedent (iv) It is not correct to say that does not deter the court. Every new if the unconstitutional part is struck norm of socio-economic justice, every

95 new measure of social justice commenced for the rst time at some point of time in history. If at that time it was rejected as being without a precedent, law as an instrument of social engineering would have long since been dead. [193 G, 193 C- D] (vii) The court is not making the scheme of liberalisation retroactive by its approach. Retroactiveness is implicit in the theory of wages. When revised pay-scales are introduced from a certain date, all existing employees are brought on to the revised scales adopting a theory of tments and increments for past service. The benet of revised scales is not limited to those who enter service subsequent to the date xed for introducing revised scales but is extended to all those in service prior to that date. Even in the case of the new retiral benet of gratuity under the Payment of Gratuity Act, 1972, past service was taken into consideration. The scheme of liberalisation is not a new retiral benet; it is an upward revision of an existing benet. Pension has correlation to average emoluments and the length of qualifying service and any liberalisation would pro tanto ber etroactive in the narrow sense of the term. Assuming the government had not prescribed the specied date and thereby provided that those retiring, pre and past the specied date, would all be governed by the liberalised pension scheme it would be both prospective and retroactive. Only the pension will have to be recomputed in the light of the formula enacted in the liberalised pension scheme and eective from the date the revised scheme comes into force. A statute is not properly called retroactive because a part of the requisites for its action is drawn from a time antecedent to its passing. (viii) There is no question of pensioners dividing the pension fund which, if more persons are admitted to the scheme, would pro rata affect the share. The pension scheme, including the liberalised scheme, is non-contributory in character. The payment of pension is a statutory liability undertaken by the Government. Whatever becomes due and payable on account of pension is recognised as an item of expenditure and is budgeted for every year. At any given point of time there is no xed or pre-determined pension fund which is divided amongst eligible pensioners. [195 C-G] (ix) The date of retirement of each employee remaining as it is, there is no question of fresh commutation of pension of the pensioners who retired prior to 31st March 1979 and have already availed of the benet of commutation. It is not open to them to get that benet at this late date because commutation has to be availed of within the specied time limit from the date of actual retirement. [206 C-D] 3. The discernible purpose underlying the pension scheme must inform the interpretative process and it should receive a liberal construction. [185 G-H] (i) Pension is a right; not a bounty or gratuitous payment. The payment of pension does not depend

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Maj Gen D.S. Nakara v. Union Of India 1982

upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. [186 A-B]

tablishing a socialist welfare society. While examining the constitutional validity of legislative/administrative action, the touchstone of Directive Principles of State Policy in the light Deoki Nandan Prasad v.State of of the Preamble provides a reliable Bihar Ors.,[1971] Supp. S.C.R. 634 yardstick to hold one way or the and State of Punjab Anr.v Iqbal other. [190 E,187 F,189 A-B,189 H] Singh, [1976] 3 S.C.R. 360, referred Randhir Singh v. Union of India to. Ors., [1982] I S.C.C. 618 and Minerva (ii) The pension payable to a gov- Mills Ltd. Ors. v. Union of India ernment employee is earned by ren- Ors., [1981] I S.C.R. 206, referred to. dering long and ecient service and 4. Any member of the public therefore can be said to be a deferred having sucient interest can mainportion of the compensation for ser- tain an action for judicial redress vice rendered. [185 F] for public injury arising from breach (iii) Pension also has a broader of public duty or from violation of signicance in that it is a social- some provision of the Constitution welfare measure rendering socio- or the law and seek enforcement of economic justice by providing eco- such public duty and observance of nomic security in old age to those such constitutional or legal provision. who toiled ceaselessly in the hey-day The locus standi of petitioner No. 3 which seeks to enforce rights that of their life. [185 D- E, 186 B-C] may be available to a large number of (iv) Pension as a retirement benold, inrm retirees is unquestionable et is in consonance with and in furas it is a non-political, non-prot, therance of the goals of the Constivoluntary organisation registered untution. The goals for which pension der the Societies Registration Act, is paid themselves give a llip and 1860 and its members consist of pubpush to the policy of setting up a lic spirited citizens who have taken welfare state. The preamble to the up the cause of ventilating legitimate Constitution envisages the establishpublic problems. [208 H, 209 A-C] ment of a socialist republic. The baS.P.Gupta v. Union of India, [1981] sic framework of socialism is to proSupp. S.C.C.87, referred to. vide a decent standard of life to the JUDGMENT: working people and especially proORIGINAL JURISDICTION : vide security from cradle to grave. Article 41 enjoins the State to secure Writ Petition Nos. 5939-41 of 1980. public assistance in old age, sickness Anil B. Divan, Mrs. Vineeta Sen and disablement. Every state action Gupta and P.H.Parekh for the Petiwhenever taken must be directed and tioners must be so interpreted as to take soL.N.Sinha,Attorney General, ciety one step towards the goal of esM.M. Abdul Khader, N. Nettar and

97 Miss A. Subhashini for Union of India. G.L. Sanghi and Randhir Jain for the interveners. S.R.Srivastava for the Intervener. for an answer in the backdrop of a welfare State and bearing in mind that pension is a socio-economic justice measure providing relief when advancing age gradually but irrevoK.K. Gupta for the Intervener. cably impairs capacity to stand on The Judgment of the Court was ones own feet. delivered by Factual matrix has little releDESAI,J.With a slight variation vance to the issues raised and canto suit the context Wooleseys prayer vassed at the hearing. Petitioners 1 : had I served my God as reverently and 2 are retired pensioners of the as I did my king, I would not have Central Government, the rst being fallen on these days of penury is a civil servant and the second being chanted by petitioners in this group a member of the service personnel of of petitions in the Shellian tune : the Armed Forces. The third petiI fall on the thorns of life I bleed. tioner is a society registered under Old age, ebbing mental and physical the Societies Registration Act, 1860, prowess, atrophy of both muscle and formed to ventilate the legitimate brain powers permeating these petipublic problems and consistent with tions, the petitioners in the fall of life its objective it is espousing the cause yearn for equality of treatment which of the pensioners all over the counis being meted out to those who are try. Its locus standi is in question soon going to join and swell their own but that is a dierent matter. The ranks, rst petitioner retired in 1972 and on Do pensioners entitled to receive computation, his pension worked out superannuation or retiring pension at Rs. 675/- p.m. and along with under Central Civil Services (Pen- the dearness relief granted from time sion) Rules, 1972 (1972 Rules for to time, at the relevant time he was short) form a class as a whole ? Is the in receipt of monthly pension of Rs. date of retirement a relevant consid- 935/-. The second petitioner retired eration for eligibility when a revised at or about that time and at the relformula for computation of pension is evant time was in receipt of a penushered in and made eective from sion plus dearness relief of Rs. 981/a specied date ? Would dieren- p.m. Union of India has been revistial treatment to pensioners related ing and liberalising the pension rules to the date of retirement qua the from time to time. Some landmark revised formula for computation of changes may be noticed. pension attract Article 14 of the ConThe First Central Pay Commisstitution and the element of discrimision (1946-47) recommended that the nation liable to be declared unconstiage of retirement in future should be tutional as being violative of Art. 14 uniformly 58 years for all services and ? These and the related questions dethe scale of pension should be 1/80 of bated in this group of petitions call the emoluments for each year of ser-

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Maj Gen D.S. Nakara v. Union Of India 1982 pensioners because in its view unless the terms of reference were suitably amended it would not be within their jurisdiction to examine this question and on a reference by them, the Government of India decided not to amend the terms of reference. With regard to the future pensioners the Third Pay Commission while reiterating that the age of superannuation should continue to be 58 years further recommended that no change in the existing formula for computing pension is considered necessary. The only important recommendation worth noticing is that the Commission recommended that the existing ceiling of maximum pension should be raised from Rs. 675 to Rs. 1,000 p.m. and the maximum of the gratuity should be raised from Rs. 24,000 to Rs. 30,000. On May 25, 1979, Government of India, Ministry of Finance, issued Oce Memorandum No. F19(3)-EV-79 whereby the formula for computation of pension was liberalised but made it applicable to Government servants who were in service on March 31, 1979 and retire from service on or after that date (specied date for short). The formula introduced a slab system for computation of pension. This liberalised pension formula was applicable to employees governed by the 1972 Rules retiring on or after the specied date. The pension for the service personnel which will include Army, Navy and Air Force sta is governed by the relevant regulations. By the Memorandum of the Ministry of Defence bearing

vice, subject to a limit of 35/80 with a ceiling of Rs. 8,000 per year for 35 years of service, which the Government of India while accepting the recommendation raised to Rs. 8,100 per year which would earn a monthly pension of Rs. 675 at the maximum. The Second Central Pay Commission (1957-58) re-armed that the age of superannuation should be 58 years for all classes of public servants but did not recommend any increase in the non- contributory retirement benets and recommended that if in future any improvement is to be made, it was the considered view of the Commission that these benets should be on a contributory basis. The Administrative Reforms Commission (ARC for short) set up by the Government of India in 1956 took note of the fact that the cost of living has shot up and correspondingly the possibility of savings has gone down and consequently the drop in wages on retirement is in reality much steeper than what the quantum of pension would indicate, and accordingly the ARC recommended that the quantum of pension admissible may be raised to 3/6 of the emoluments of the last three years of service as against the existing 3/8 and the ceiling should be raised from Rs. 675 p.m. to Rs. 1000 p.m. Before the Government could take its decision on the recommendations of the ARC, the Third Central Pay Commission was set up. One of the terms of reference of the Third Pay Commission was death-cum- retirement benets of Central Government employees. The Third Pay Commission did not examine the question of relief to

99 No. B/40725/AG/PS4-C/1816/AD (Pension)/Services dated September 28, 1979, the liberalised pension formula introduced for the government servants governed by the 1972 rules was extended to the Armed Forces personnel subject to limitations set out in the memorandum with a condition that the new rules of pension would be eective from April 1, 1979, and may be applicable to all service ocers who become/became non-eective on or after that date. (for short specied date). The chronology of events herein narrated would bring to surface the contentions raised in these petitions. The liberalised pension formula shall be applicable prospectively to those who retired on or after March 31, 1979 in case of government servants covered by 1972 Rules and in respect of defence personnel those who became/become non-eective on or after April 1, 1979. Consequently those who retired prior to the specied date would not be entitled to the benets of the liberalised pension formula. Petitioners accordingly contend that this Court may consider the raison detre for payment of pension. If the Pension is paid for past satisfactory service rendered, and to avoid destitution in old age as well as a social welfare or socio-economic justice measure, the dierential treatment for those retiring prior to a certain date and those retiring subsequently, the choice of the date being wholly arbitrary, would be according dierential treatment to pensioners who form a class irrespective of the date of retirement and, therefore, would be violative of Art. 14. It was also contended that classication based on fortuitous circumstance of retirement before or subsequent to a date, xing of which is not shown to be related to any rational principle, would be equally violative of Art. 14. Primary contention is that the pensioners of the Central Government form a class for purpose of pensionary benets and there could not be miniclassication within the class designated as pensioners. The expression pensioner is generally understood in contra-distinction to the one in service. Government servants in service, in other words, those who have not retired, are entitled to 175 salary and other allowances. Those who retire and are designated as pensioners are entitled to receive pension under the relevant rules. Therefore, this would clearly indicate that those who render service and retire on superannuation or any other mode of retirement and are in receipt of pension are comprehended in the expression pensioners. Is this class of pensioners further divisible for the purpose of entitlement and payment of pension into those who retired by certain date and those who retired after that date ? If date of retirement can be accepted as a valid criterion for classication, on retirement each individual government servant would form a class by himself because the date of retirement of each is correlated to his birth date and on attaining a certain age he had to retire. It is only after the recommendations of the Third Cen-

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Maj Gen D.S. Nakara v. Union Of India 1982 embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits..... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence. The decisions clearly lay down that though Art. 14 forbids class legislation, it does not forbid reasonable classication for the purpose of legislation. In order, however, to pass the test of permissible classication, two conditions must be fullled, viz., (i) that the classication must be founded on an intelligible dierentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that dierentia must have a rational relation to the objects sought to be achieved by the statute in question. (see Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar Others.(1) The classication may be founded on dierential basis according to objects sought to be achieved but what is implicit in it is that there ought to be a nexus i.e., causal connection between the basis of classication and object of the statute under consideration. It is equally well settled by the decisions of this Court that Art. 14 condemns discrimination not only by a

tral Pay Commission were accepted by the Government of India that the retirement dates have been specied to be 12 in number being last day of each month in which the birth date of the individual government servant happens to fall. In other words, all government servants who retire correlated to birth date on attaining the age of superannuation in a given month shall not retire on that date but shall retire on the last day of the month. Now, if date of retirement is a valid criterion for classication, those who retire at the end of every month shall form a class by themselves. This is too microscopic a classication to be upheld for any valid purpose. Is it permissible or is it violative of Art. 14 ? The scope, content and meaning of Article 14 of the Constitution has been the subjectmatter of intensive examination by this Court in a catena of decisions. It would, therefore, be merely adding to the length of this judgment to recapitulate all those decisions and it is better to avoid that exercise save and except referring to the latest decision on the subject in Maneka Gandhi v. Union of India(1) from which the following observation may be extracted: ...... what is the content and reach of the great equalising principle enunciated in this article ? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-

101 substantive law but also by a law of procedure. After an exhaustive review of almost all decisions bearing on the question of Art. 14, this Court speaking through Chandrachud, C.J. in Re. Special Courts Bill (2) restated the settled propositions which emerged from the judgments of this Court undoubtedly insofar as they were relevant to the decision on the points arising for consideration in that matter. Four of them are apt and relevant for the present purpose and may be extracted. They are: 3. The constitutional command to the State to aord equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classication need not be constituted by an exact or scientic exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classication in any given case. Classication is justied if it is not palpably arbitrary. 4. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of dierences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same. 6. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classication should never be arbitrary, articial or evasive. 7. The classication must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fullled, namely, (1) that the classication must be founded on an intelligible dierentia which distinguishes those that are grouped together from others and (2) that dierentia must have a rational relation to the object sought to be achieved by the Act. The other facet of Art. 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classication. As was noticed in Maneka Gandhis case in the earliest stages of evolution of the Constitutional law, Art. 14 came to be identied with the doctrine of classication because the view taken was that Art. 14 forbids discrimination and there will be no discrimination where the classication making the dierentia fulls the aforementioned two conditions.

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Maj Gen D.S. Nakara v. Union Of India 1982 Arming and explaining this view, the Constitution Bench in Ajay Hasia etc. v. Khalid Mujib Sehravardi others etc. (3) held that it must, therefore, now be taken to be well settled that what Art.14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The Court made it explicit that where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Art. 14. After a review of large number of decisions bearing on the subject, in Air India etc. etc. v. Nargesh Meerza Ors. etc etc. (1) the Court formulated propositions emerging from analysis and examination of earlier decisions. One such proposition held well established is that Art. 14 is certainly attracted where equals are treated dierently without any reasonable basis. Thus the fundamental principle is that Art. 14 forbids class legislation but permits reasonable classication for the purpose of legislation which classication must satisfy the twin tests of classication being founded on an intelligible dierntia which distinguishes persons or things that are grouped together from those that are left out of the group and that dierentia must have a rational nexus to the object sought to be achieved by the statute in question. As a corrolary to this well established proposition, the next question is, on whom the burden lies to armatively establish the rational principle on which the classica-

However, in EP. Royappa v. State of Tamil Nadu(1), it was held that the basic principle which informs both Arts. 14 and 16 is equality and inhibition against discrimination. This Court further observed as under: From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Art. 14, and if it aects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. Justice Iyer has in his inimitable style dissected Art. 14 as under: The article has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. Only knight- errants of executive excesses-if we may use current cliche-can fall in love with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And so it that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law; be you ever so high, the law is above you.(2)

103 tion is founded correlated to the object sought to be achieved ? The thrust of Art. 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals a welfare state will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of state armative action. In the absence of doctrine of classication such legislation is likely to ounder on the bed rock of equality enshrined in Art. 14. The court realistically appraising the social stratication and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in part IV of the Constitution, evolved the doctrine of classication. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succor. Legislative and executive action may accordingly be sustained if it satises the twin tests of reasonable classication and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to armatively satisfy the Court that the twin tests have been satised. It can only be satised if the State establishes not only the rational principle on which classication is founded but correlate it to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shetty v. The International Airport Authority of India Ors.(1) when at page 1034, the Court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. The basic contention as hereinbefore noticed is that the pensioners for the purpose of receiving pension form a class and there is no criterion on which classication of pensioners retiring prior to specied date and retiring subsequent to that date can provide a rational principle correlated to object, viz., object underlying payment of pensions. In reply to this contention set out in para 19 of the petition, Mr. S.N. Mathur, Director, Ministry of Finance in part 17 of his adavit-inopposition on behalf of the respondents has averred as under: The contentions in part 18 and 19 that all pensioners form one class is not correct and the petitioners have not shown how they form one class. Classication of pensioners on the basis of their date of retirement is a valid classication for the purpose of pensionary benets. These averments would show at a glance that the State action is sought to be sustained on the doctrine of classication and the criterion on which the classication is sought to be sustained is the date of retirement of the Government servant which en-

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Maj Gen D.S. Nakara v. Union Of India 1982 ployee has ceased to render service ? What is a pension ? What are the goals of pension ? What public interest or purpose, if any, it seeks to serve ? If it does seek to serve some public purpose, is it thwarted by such articial division of retirement pre and post a certain date ? We need seek answer to these and incidental questions so as to render just justice between parties to this petition. The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar Ors. (1) wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any ones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension ows to the ocer not because of any such order but by virtue of the rules. This view was rearmed in State of Punjab Anr. v. Iqbal Singh (1).

titled him to pension. Thus according to the respondents, pensioners who retire from Central Government service and are governed by the relevant pension rules all do not form a class but pensioners who retire prior to a certain date and those who retire subsequent to a certain date form distinct and separate classes. It may be made clear that the date of retirement of each individual 181 pensioner is not suggested as a criterion for classication as that would lead to an absurd result, because in that event every pensioner relevant to his date of retirement will form a class unto himself. What is suggested is that when a pension scheme undergoes a revision and is enforced eective form a certain date, the date so specied becomes a sort of a Rubicon and those who retire prior to that date form one class and those who retire on a subsequent date form a distinct and separate class and no one can cross the Rubicon. And the learned Attorney General contended that this dierentiation is grounded on a rational principle and it has a direct correlation to the object sought to be achieved by liberalised pension formula.

The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised ? Is the employer, which expression will include even the State, bound to pay pension ? Is there any obligation on the employer to provide for the erstwhile employee There are various kinds of peneven after the contract of employ- sions and there are equally variment has come to an end and the em- ous methods of funding pension pro-

105 grammes. The present enquiry is limited to non-contributory superannuation or retirement pension paid by Government to its erstwhile employee and the purpose and object underlying it. Initially this class of pension appears to have been introduced as a reward for loyal service. Probably the alien rulers who recruited employees in lower echelons of service from the colony and exported higher level employees from the seat of Empire, wanted to ensure in the case of former continued loyalty till death to the alien rulers and in the case of latter, an assured decent living standard in old age ensuring economic security at the cost of the colony. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability, State obligation to provide security in old age, an escape from undeserved want was recognised and as a rst step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo, was that when the employee was physically and mentally alert he rendered unto master the best, expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benets. In most of the plans of retirement benets, everyone who qualies for normal retirement receives the same amount. (see Retirement Systems for Public Employees by Bleakney, page 33.) history of its initial introduction in early stages and continued existence till today may be illuminating. Superannuation is the most descriptive word of all but has become obsolescent because it seems ponderous. Its genesis can be traced to the rst Act of Parliament (in U.K.) to be concerned with the provision of pensions generally in public oces. It was passed in 1810. The Act which substantively devoted itself exclusively to the problem of superannuation pension was superannuation Act of 1834. These are landmarks in pension history because they attempted for the rst time to establish a comprehensive and uniform scheme for all whom we may now call civil servants. Even before the 19th century, the problem of providing for public servants who are unable, through old age or incapacity, to continue working, has been recognised, but methods of dealing with the problem varied from society to society and even occasionally from department to department.

A political society which has a goal of setting up of a welfare State, would introduce and has in fact introduced as a welfare measure wherein the retiral benet is grounded on considerations of State obligation to its citizens who having rendered service during the useful span of life must not be left to penury in their old age, but the evolving concept of social security is a later day development. And this journey was over a rough terrain. To note only As the present case is concerned one stage in 1856 a Royal Commiswith superannuation pension, a brief sion was set up to consider whether

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Maj Gen D.S. Nakara v. Union Of India 1982 merit the criticism that if a developing country like India cannot provide an employee while rendering service a living wage, how can one be assured of it in retirement ? This can be aptly illustrated by a small illustration. A man with a broken arm asked his doctor whether he will be able to play the piano after the cast is removed. When assured that he will, the patient replied, that is funny, I could not before. It appears that determining the minimum amount required for living decently is dicult, selecting the percentage representing the proper ratio between earnings and the retirement income is harder. But it is imperative to note that as self- suciency declines the need for his attendance or institutional care grows. Many are literally surviving now than in the past. We owe it to them and ourselves that they live, not merely exist. The philosophy prevailing in a given society at various stages of its development profoundly inuences its social objectives. These objectives are in turn a determinant of a social policy. The law is one of the chief instruments whereby the social policies are implemented and pension is paid according to rules which can be said to provide social security law by which it is meant those legal mechanisms primarily concerned to ensure the provision for the individual of a cash income adequate, when taken along with the benets in kind provided by other social services (such as free medical aid) to ensure for him a culturally acceptable minimum standard of living when the normal means of doing so failed. (see Social

any changes were necessary in the system established by the 1834 Act. The Report of the Commission is known as Northcote-Trevelyan Report. The Report was pungent in its criticism when it says that: in civil services comparable to lightness of work and the certainty of provision in case of retirement owing to bodily incapacity, furnish strong inducements to the parents and friends of sickly youths to endeavour to obtain for them employment in the service of the Government, and the extent to which the public are consequently burdened; rst with the salaries of ocers who are obliged to absent themselves from their duties on account of ill health, and afterwards with their pensions when they retire on the same plea, would hardly be credited by those who have not had opportunities of observing the operation of the system (see Gerald Rhodes, Public Sector Pensions, pp. 18-19). This approach is utterly unfair because in modern times public services are manned by those who enter at a comparatively very young age, with selection through national competitive examination and ordinarily the best talent gets the opportunity. Let us therefore examine what are the goals that pension scheme seeks to subserve ? A pension scheme consistent with available resources must provide that the pensioner would be able to live: (i) free from want, with decency, independence and self-respect, and (ii) at a standard equivalent at the preretirement level. This approach may

107 Security law by Prof. Harry Calvert, in Douge v. Board of Education(1) p. 1). a pension is closely akin to wages Viewed in the light of the present in that it consists of payment proday notions pension is a term applied vided by an employer, is paid in conto periodic money payments to a per- sideration of past service and serves son who retires at a certain age con- the purpose of helping the recipient sidered age of disability; payments meet the expenses of living. This apusually continue for the rest of the pears to be the nearest to our apnatural life of the recipient. The proach to pension with the added reasons underlying the grant of pen- qualication that it should ordinarsion vary from country to country ily ensure freedom from undeserved and from scheme to scheme. But want. Summing-up it can be said broadly stated they are (i) as com- with condence that pension is not pensation to former members of the only compensation for loyal service armed forces or their dependents for rendered in the past, but pension also old age, disability, or death (usually has a broader signicance, in that it from service causes), (ii) as old age is a measure of socio-economic justice retirement or disability benets for which inheres economic security in civilian employees, and (iii) as so- the fall of life when physical and mencial security payments for the aged, tal prowess is ebbing corresponding disabled, or deceased citizens made to aging process and therefore, one is in accordance with the rules govern- required to fall back on savings. One ing social service programmes of the such saving in kind is when you gave country. Pensions under the rst your best in the hey-day of life to head are of great antiquity. Under your employer, in days of invalidity, the second head they have been in economic security by way of periodiforce in one form or another in some cal payment is assured. The term has countries for over a century but those been judicially dened as a stated alcoming under the third head are rel- lowance or stipend made in consideratively of recent origin, though they ation of past service or a surrender are of the greatest magnitude. There of rights or emoluments to one reare other views about pensions such tired from service. Thus the pension as charity, paternalism, deferred pay, payable to a Government employee is rewards for service rendered, or as a earned by rendering long and ecient means or promoting general welfare service and therefore can be said to (see Encyclopaedia Britannica, Vol. be a deferred portion of the compen17 p.575.) But these views have be- sation or for service rendered. In one sentence one can say that the most come otiose. practical raison detre for pension is Pension to civil employees of the the inability to provide for oneself Government and the defence persondue to old age. One may live and nel as administered in India appear avoid unemployment but not senility to be a compensation for service renand penury if there is nothing to fall dered in the past. However, as held back upon.

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Maj Gen D.S. Nakara v. Union Of India 1982 pension the main question may now be tackled. But, the approach of court while considering such measure is of paramount importance. Since the advent of the Constitution, the state action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State. Article 38 (1) enjoins the State to strive to promote welfare of the people by securing and protecting as effective as it may a social order in which justice social, economic and political shall inform all institutions of the national life. In particular the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities. Art. 39 (d) enjoins a duty to see that there is equal pay for equal work for both men and women and this directive should be understood and interpreted in the light of the judgment of this Court in Randhir Singh v. Union of India Ors.(1) Revealing the scope and content of this facet of equality, Chinnappa Reddy, J. speaking for the Court observed as under : Now, thanks to the rising social and political consciousness and the expectations aroused as a consequence and the forward looking posture of this Court, the under-privileged also are clamouring for the rights and are seeking the intervention of the Court with touching faith and condence in the Court. The Judges of the Court have a duty to redeem their Constitutional oath and do justice no less to the pavement dweller than to the guest of the Five Star Hotel.

The discernible purpose thus underlying pension scheme or a statute introducing the pension scheme must inform interpretative process and accordingly it should receive a liberal construction and the courts may not so interpret such statute as to render them inane (see American Jurisprudence 2d. 881). From the discussion three things emerge : (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Art. 309 and clause (5) of Art. 148 of the Constitution ; (ii) that the pension is not an ex-gratia payment but it is a payment for the past service rendered ; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to ten months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to requirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure. Having succinctly focussed our attention on the conspectus of elements and incidents of

109 Proceeding further, this Court observed that where all relevant considerations are the same, persons holding identical posts may not be treated dierently in the matter of their pay merely because they belong to dierent departments. If that cant be done when they are in service, can that be done during their retirement? Expanding this principle, one can condently say that if pensioners form a class, their computation cannot be by dierent formula aording unequal treatment solely on the ground that some retired earlier and some retired later. Art. 39 (e) requires the State to secure that the health and strength of workers, men and women, and children of tender age are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Art. 41 obligates the State within the limits of its economic capacity and development, to make eective provision for securing the right to work, to education and to provide assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Art. 43 (3) requires the State to endeavour to secure amongst other things full enjoyment of leisure and social and cultural opportunities. Recall at this stage the Preamble, the ood light illuminating the path to be pursued by the State to set up a Sovereign Socialist Secular Democratic Republic. Expression socialist was intentionally introduced in the Preamble by the Constitution (Forty-Second Amendment) Act, 1976. In the objects and reasons for amendment amongst other things, ushering in of socioeconomic revolution was promised. The clarion call may be extracted : The question of amending the Constitution for removing the diculties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity, has been engaging the active attention of Government and the public for some time......... It is, therefore, proposed to amend the Constitution to spell out expressly the high ideals of socialism........to make the directive principles more comprehensive...... What does a Socialist Republic imply? Socialism is a much misunderstood word. Values determine contemporary socialism pure and simple. But it is not necessary at this stage to go into all its ramications. The principal aim of a socialist State is to eliminate inequality in income and status and standards of life. The basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave. This amongst others on economic side envisaged economic equality and equitable distribution of income. This is a blend of Marxism and Gandhism leaning heavily towards Gandhian socialism. During the formative years, socialism aims at providing all opportunities for pursuing the educational activity. For want of wherewithal or nancial equipment the opportu-

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Maj Gen D.S. Nakara v. Union Of India 1982 freedom from want, freedom from fear and the enjoyable leisure, relieving the boredom and the humility of dependence in old age. This is what Art. 41 aims when it enjoins the State to secure public assistance in old age, sickness and disablement. It was such a socialist State which the Preamble directs the centres of power Legislative Executive and Judiciaryto strive to set up. From a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society is a long march but during this journey to the fullment of goal every State action whenever taken must be directed, and must be so interpreted, as to take the society one step towards the goal. To some extent this approach will nd support in the judgment in Minerva Mills Ltd. Ors. v. Union of India Ors.(1). Speaking for the majority, Chandrachud, C.J. observed as under : This is not mere semantics. The edice of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice-social, economic and political. We, therefore, put Part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved. At a later stage it was observed that the fundamental rights are not an end in themselves but are the means to an end, the end is specied in part IV. Bhagwati, J. in his minority judgment after extracting

nity to be fully educated shall not be denied. Ordinarily, therefore, a socialist State provides for free education from primary to Ph. D. but the pursuit must be by those who have the necessary intelligence quotient and not as in our society where a brainy young man coming from a poor family will not be able to prosecute the education for want of wherewithal while the ill-equipped son or daughter of a well-to-do father will enter the portals of higher education and contribute to national wastage. After the education is completed, socialism aims at equality in pursuit of excellence in the chosen avocation without let or hindrance of caste, colour, sex or religion and with full opportunity to reach the top not thwarted by any considerations of status, social or otherwise. But even here the less equipped person shall be assured a decent minimum standard of life and exploitation in any form shall be eschewed. There will be equitable distribution of national cake and the worst o shall be treated in such a manner as to push them up the ladder. Then comes the old age in the life of everyone, be he a monarch or a Mahatma, a worker or a pariah. The old age overtakes each one, death being the fullment of life providing freedom from bondage. But there socialism aims at providing an economic security to those who have rendered unto society what they were capable of doing when they were fully equipped with their mental and physical prowess. In the fall of life the State shall ensure to the citizens a reasonably decent standard of life, medical aid,

111 a portion of the speech of the then Prime Minister Jawahar Lal Nehru, while participating in a discussion on the Constitution (First Amendment) Bill, observed that the Directive Principles are intended to bring about a socio-economic revolution and to create a new socio-economic order where there will be social and economic justice for all and everyone, not only a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and exercise the fundamental rights. It, therefore, appears to be well established that while interpreting or examining the constitutional validity of legislative/administrative action, the touchstone of Directive Principles of State Policy in the light of the Preamble will provide a reliable yardstick to hold one way or the other. With this background let us now turn to the challenge posed in these petitions. The challenge is not to the validity of the pension liberalisation scheme. The scheme is wholly acceptable to the petitioners, nay they are ardent supporters of it, nay further they seek the benet of it. The petitioners challenge only that part of the scheme by which its benets are admissible to those who retired from service after a certain date. In other words, they challenge that the scheme must be uniformly enforced with regard to all pensioners for the purpose of computation of pension irrespective of the date when the Government servant retired subject to the only condition that he was governed by the 1972 Rules. No doubt, the benet of the scheme will be available from the specied date, irrespective of the fact when the concerned Government servant actually retired from service. Having set out clearly the society which we propose to set up, the direction in which the State action must move, the welfare State which we propose to build up, the constitutional goal of setting up a socialist State and the assurance in the Directive Principles of State Policy especially of security in old age at least to those who have rendered useful service during their active years, it is indisputable, nor was it questioned, that pension as a retirement benet is in consonance with and furtherance of the goals of the Constitution. The goals for which pension is paid themselves give a llip and push to the policy of setting up a welfare State because by pension the socialist goal of security of cradle to grave is assured at least when it is mostly needed and least available, namely, in the fall of life. If such be the goals of pension, if such be the welfare State which we propose to set up, if such be the goals of socialism and conceding that any welfare measure may consistent with economic capacity of the State be progressively augmented with wider width and a longer canvass yet when the economic means permit the augmentation, should some be left out for the sole reason that while in the formative years of the nascent State they contributed their mite but when the fruits of their labour led to the owering of economic development

112

Maj Gen D.S. Nakara v. Union Of India 1982 was not available and the ceiling was at a lower level. Thus they suffer triple jeopardy, viz., lower average emoluments, absence of slab system and lower ceiling. What then is the purpose in prescribing the specied date vertically dividing the pensioners between those who retired prior to the specied date and those who retire subsequent to that date? That poses the further question, why was the pension scheme liberalised ? What necessitated liberalisation of the pension scheme ? Both the impugned memoranda do not spell out the raison detre for liberalising the pension formula. In the adavit in opposition by Shri S.N. Mathur, it has been stated that the liberalisation of pension of retiring Government servants was decided by the Government in view of the persistent demand of the Central Government employees represented in the scheme of Joint Consultative Machinery. This would clearly imply that the preliberalised pension scheme did not provide adequate protection in old age and that a further liberalisation was necessary as a measure of economic security. When Government favourably responded to the demand it thereby ipso facto conceded that there was a larger available national cake part of which could be utilised for providing higher security to erstwhile government servants who would retire. The Government also took note of the fact that continuous upward movement of the cost of living index as a sequel of inationary inputs and diminishing purchasing power of rupee neces-

and higher gross national produce bringing in larger revenue and therefore larger cake is available, they would be denied any share of it ? Indisputably, viewed from any angle pensioners for payment of pension form a class. Unquestionably pension is linked to length of service and the last pay drawn but the last pay does not imply the pay on the last day of retirement but average emoluments as dened in the scheme. Earlier average emoluments of 36 months service provided the measure of pension because the pension was related to the average emoluments during 36 months just preceding retirement. By the liberalised scheme it is now reduced to average emoluments of 10 months preceding the date. Any one in government service would appreciate at a glance that with an average of 10 months it would be on the higher side on account of the two fortuitous circumstances that the pay- scales, if one has not reached the maximum, permit annual increments and there are promotions in the last one or two years. With a view to giving a higher average the scheme was liberalised to provide for average emoluments with reference to last 10 months service. Coupled with it, a slab system for computation is introduced and the ceiling is raised. This is liberalisation. Now, if the pensioners who retired prior to the specied date and had to earn pension on the average emoluments of 36 months salary just preceding the date of retirement, naturally the average would be lower and they will be doubly hit because the slab system as now introduced

113 sitated upward revision of pension. If this be the underlying intendment of liberalisation of pension scheme, can any one be bold enough to assert that it was good enough only for those who would retire subsequent to the specied date but those who had already retired did not suer the pangs of rising prices and falling purchasing power of the rupee ? What is the sum total of picture ? Earlier the scheme was not that liberal keeping in view the denition of average emoluments and the absence of slab system and a lower ceiling. Those who rendered the same service earned less pension and are exposed to the vagary of rising prices consequent upon the inationary inputs. If therefore, those who are to retire subsequent to the specied date would feel the pangs in their old age, of lack of adequate security, by what stretch of imagination the same can be denied to those who retired earlier with lower emoluments and yet are exposed to the vagaries of the rising prices and the falling purchasing power of the rupee. And the greater misfortune is that they are becoming older and older compared to those who would be retiring subsequent to the specied date. The Government was perfectly justied in liberalising the pension scheme. In fact it was overdue. But we nd no justication for arbitrarily selecting the criteria for eligibility for the benets of the scheme dividing the pensioners all of whom would be retirees but falling on one or the other side of the specied date. nale behind the eligibility qualication. The learned Attorney-General contended that the scheme is one whole and that the date is an integral part of the scheme and the Government would have never enforced the scheme devoid of the date and the date is not severable from the scheme as a whole. Contended the learned Attorney-General that the Court does not take upon itself the function of legislation for persons, things or situations omitted by the legislature. It was said that when the legislature has expressly dened the class with clarity and precision to which the legislation applies, it would be outside the judicial function to enlarge the class and to do so is not to interpret but to legislate which is the forbidden eld. Alternatively it was also contended that where a larger class comprising two smaller classes is covered by a legislation of which one part is constitutional, the Court examines whether the legislation must be invalidated as a whole or only in respect of the unconstitutional part. It was also said that severance always cuts down the scope of legislation but can never enlarge it and in the present case the scheme as it stands would not cover pensioners such as the petitioners and if by severance an attempt is made to include them in the scheme it is not cutting down the class or the scope but enlarge the ambit of the scheme which is impermissible even under the doctrine of severability. In this context it was lastly submitted that there is Therefore, let us proceed to ex- not a single case in India or elsewhere amine whether there was any ratio- where the Court has included some category within the scope of provi-

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sions of a law to maintain its consti- this point need not deter us at all. tutionality. We are all the more happy for the The last submission, the absence chance of scribbling on a clean slate. of precedent need not deter us for a moment. Every new norm of socio economic justice, every new measure of social justice commenced for the rst time at some point of history. If at that time it is rejected as being without a precedent, the law as an instrument of social engineering would have long since been dead and no tears would have been shed. To be pragmatic is not to be unconstitutional. In its onward march law as an institution ushers in socioeconomic justice. In fact, social security in old age commended itself in earlier stages as a moral concept but in course of time it acquired legal contention. The rules of natural justice owed their origin to ethical and moral code. Is there any doubt that they have become the integral and inseparable parts of rule of law of which any civilised society is proud ? Can anyone be bold enough to assert that ethics and morality are outside the eld of legal formulations ? Socio-economic justice stems from the concept of social morality coupled with abhorrence for economic exploitation. And the advancing society converts in course of time moral or ethical code into enforceable legal formulations. Over-emphasis on precedent furnishes an insurmountable road-block to the onward march towards promised millennium. An overdose of precedents is the bane of our system which is slowly getting stagnant, stratied and atrophied. Therefore absence of a precedent on If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benets form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily xing an eligibility criteria unrelated to purpose of revision, and would such classication be founded on some rational principle ? The classication has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we nd no rational principle behind it for granting these benets only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who retired earlier cannot be worst o than those who retire later. Therefore, this division which classied pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specied date. Both were in the same pay bracket, the average emolu-

115 ment was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension ? One retiring a day earlier will have to be subject to ceiling of Rs. 8,100 p a. and average emolument to be worked out on 36 months salary while the other will have a ceiling of Rs. 12,000 p.a. and average emolument will be computed on the basis of last ten months average. The articial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Art. 14 is wholly violated inasmuch as the pension rules being statutory in character, since the specied date, the rules accord dierential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hours dierence in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore the classication does not stand the test of Art.14. Further the classication is wholly arbitrary because we do not nd a single acceptable or persuasive reason for this division. This arbitrary action violated the guarantee of Art. 14. The next question is what is the way you ? The learned Attorney-General contended that the scheme is to be taken as a whole or rejected as a whole and the date from which it came into force is an integral and inseparable part of the scheme. The two sub-limbs of the submissions were that, (i) the Court cannot make a scheme having nancial implications retroactive, and (ii) this Court cannot grant any relief to the pensioners who retired prior to a specied date because if more persons divide the available cake, the residue falling to the share of each especially to those who are likely to be beneted by the scheme will be comparatively smaller and as they are not before the Court, no relief can be given to the pensioners. Let us clear one misconception. The pension scheme including the liberalised scheme available to the Government employees is noncontributory in character. It was not pointed out that there is something like a pension fund. It is recognised as an item of expenditure and it is budgeted and voted every year. At any given point of time there is no xed or predetermined pension fund which is divided amongst eligible pensioners. There is no articially created fund or reservoir from which pensioners draw pension within the limits of the fund, the share of each being extensive with the available fund. The payment of pension is a statutory liability undertaken by the Government and whatever becomes due and payable is budgeted for. One could have appre-

116

Maj Gen D.S. Nakara v. Union Of India 1982 to qualifying service. It has correlation to the average emoluments and the length of service. Any liberalisation would pro tanto be retroactive in the narrow sense of the term. Otherwise it is always prospective. A statute is not properly called a retroactive statute because a part of the requisites for its action is drawn from a time antecedent to its passing. (see Craies on Statute Law, sixth edition, p. 387). Assuming the Government had not prescribed the specied date and thereby provided that those retiring pre and post the specied date would all be governed by the liberalised pension scheme, undoubtedly, it would be both prospective and retroactive. Only the pension will have to be recomputed in the light of the formula enacted in the liberalised pension scheme and eective from the date the revised scheme comes into force. And beware that it is not a new scheme, it is only a revision of existing scheme. It is not a new retiral benet. It is an upward revision of an existing benet. If it was a wholly new concept, a new retiral benet, one could have appreciated an argument that those who had already retired could not expect it. It could have been urged that it is an incentive to attract the fresh recruits. Pension is a reward for past service. It is undoubtedly a condition of service but not an incentive to attract new entrants because if it was to be available to new entrants only, it would be prospective at such distance of thirty-ve years since its introduction. But it covers all those in service who entered thirty-ve years back. Pension is thus not an incen-

ciated this line of reasoning where there is a contributory scheme and a pension fund from which alone pension is disbursed. That being not the case, there is no question of pensioners dividing the pension fund which, if more persons are admitted to the scheme, would pro rata aect the share. Therefore, there is no question of dividing the pension fund. Pension is a liability incurred and has to be provided for in the budget. Therefore, the argument of divisions of a cake, larger the number of sharers, smaller the share and absence of residue and therefore by augmentation of beneciaries, pro rata share is likely to be aected and their absence making relief impermissible, is an argument born of desperation, and is without merits and must be rejected as untenable. By our approach, are we making the scheme retroactive ? The answer is emphatically in the negative. Take a government servant who retired on April 1, 1979. He would be governed by the liberalised pension scheme. By that time he had put in qualifying service of 35 years. His length of service is a relevant factor for computation of pension. Has the Government made it retroactive, 35 years backward compared to the case of a Government servant who retired on 30th March, 1979 ? Concept of qualifying service takes note of length of service, and pension quantum is correlated to qualifying service. Is it retroactive for 35 years for one and not retroactive for a person who retired two days earlier ? It must be remembered that pension is relatable

117 tive but a reward for past service. And a revision of an existing benet stands on a dierent footing than a new retiral benet. And even in case of new retiral benet of gratuity under the Payment of Gratuity Act, 1972 past service was taken into consideration. Recall at this stage the method adopted when pay-scales are revised. Revised pay-scales are introduced from a certain date. All existing employees are brought on to the revised scales by adopting a theory of tments and increments for past service. In other words, benet of revised scale is not limited to those who enter service subsequent to the date xed for introducing revised scales but the benet is extended to all those in service prior to that date. This is just and fair. Now if pension as we view it, is some kind of retirement wages for past service, can it be denied to those who retired earlier, revised retirement benets being available to future retirees only ? Therefore, there is no substance in the contention that the court by its approach would be making the scheme retroactive, because it is implicit in theory of wages. That takes us to the last important contention of the learned Attorney General. It was urged that the date from which the scheme becomes operative is an integral part of the scheme and the doctrine of severability cannot be invoked. In other words, it was urged that date cannot be severed from the main object of the scheme because the Government would have never oered the scheme unless the date was an integral part of it. Undoubtedly when an upward revision is introduced, a date from which it becomes eective has to be provided. It is the event of retirement subsequent to the specied date which introduces discrimination in one otherwise homogeneous class of pensioners. This arbitrary selection of the happening of event subsequent to specied date denies equality of treatment to persons belonging to the same class, some preferred and some omitted. Is this eligibility qualication severable ? It was very seriously contended, remove the event correlated to date and examine whether the scheme is workable. We nd no diculty in implementing the scheme omitting the event happening after the specied date retaining the more humane formula for computation of pension. It would apply to all existing pensioners and future pensioners. In the case of existing pensioners, the pension will have to be recomputed by applying the rule of average emoluments as set out in Rule 34 and introducing the slab system and the amount worked out within the oor and the ceiling. But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. All pensioners whenever they retired would be covered by the liberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its

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umbrella all existing pensioners and those who retired subsequent to that date. In case of pensioners who retired prior to the specied date, their pension would be computed afresh and would be payable in future commencing from the specied date. No arrears would be payable. And that would take care of the grievance of retrospectivity. In our opinion, it would make a marginal dierence in the case of past pensioners because the emoluments are not revised. The last revision of emoluments was as per the recommendation of the Third Pay commission (Raghubar Dayal Commission). If the emoluments remain the same, the computation of average emoluments under amended Rule 34 may raise the average emoluments, the period for averaging being reduced from last 36 months to last 10 months. The slab will provide slightly higher pension and if someone reaches the maximum the old lower ceiling will not deny him what is otherwise justly due on computation. The words who were in service on 31st March, 1979 and retiring from service on or after the date excluding the date for commencement of revision are words of limitation introducing the mischief and are vulnerable as denying equality and introducing an arbitrary fortuitous circumstance can be severed without impairing the formula. Therefore, there is absolutely no diculty in removing the arbitrary and discriminatory portion of the scheme and it can be easily severed.

an eligibility criteria subsequent to a specied date. If the event is certain but its occurrence at a point of time is considered wholly irrelevant and arbitrarily selected having no rationale for selecting it and having an undesirable eect of dividing homogeneous class and of introducing the discrimination, the same can be easily severed and set aside. While examining the case under Art. 14, the approach is not: either take it or leave it, the approach is removal of arbitrariness and if that can be brought about by severing the mischievous portion the court ought to remove the discriminatory part retaining the benecial portion. The pensioners do not challenge the liberalised pension scheme. They seek the benet of it. Their grievance is of the denial to them of the same by arbitrary introduction of words of limitation and we nd no diculty in severing and quashing the same. This approach can be legitimised on the ground that every Government servant retires. State grants upward revision of pension undoubtedly from a date. Event has occurred revision has been earned. Date is merely to avoid payment of arrears which may impose a heavy burden. If the date is wholly removed, revised pensions will have to be paid from the actual date of retirement of each pensioner. That is impermissible. The State cannot be burdened with arrears commencing from the date of retirement of each pensioner. But effective from the specied date future There is nothing immutable pension of earlier retired Governabout the choosing of an event as ment servants can be computed and paid on the analogy of tments in

119 revised pay-scales becoming prospectively operative. That removes the nefarious unconstitutional part and retains the benecial portion. It does not adversely aect future pensioners and their presence in the petitions becomes irrelevant. But before we do so, we must look into the reasons assigned for eligibility criteria, namely, in service on the specied date and retiring after that date. The only reason we could nd in adavit of Shri Mathur is the following statement in paragraph 5 : The date of eect of the impugned orders has been selected on the basis of relevant and valid considerations. We repeatedly posed a question: what are those relevant and valid considerations and waited for the answer in vain. We say so because in the written submissions led on behalf of the Union of India, we nd not a single valid or relevant consideration much less any consideration relevant to selection of eligibility criteria. The tenor is we select the date and it is unquestionable; either take it or leave it as a whole. The only submission was that the date is not severable and some submissions in support of it. Having examined the matter on principle, let us turn to some precedents. In D.R. Nim v. Union of India(1) the appellant questioned his seniority which was to be determined in accordance with the provisions contained in Indian Police Service (Regulation of Seniority) Rules, 1954. These rules required rst to ascertain the year of allotment of the person concerned for the determination of his seniority. In doing so, the Government of India directed that ocers promoted to the Indian Police Service should be allowed the benet of their continuous ociation with eect only from 19th May, 1951. The appellant challenged the order because the period of ociation from June 1947 to May 1951 was excluded for the purpose of xation of his seniority. His grievance was that there was no rationale behind selecting this date. After taking into consideration adavit in opposition, this Court held as under : It would be noticed that the date, May 19, 1951, to begin with had nothing to do with the nalisation of the Gradation List of the Indian Police Service because it was a date which had reference to the nalisation of the Gradation List for the IAS. Further this date does not seem to have much relevance to the question of avoiding the anomalous position mentioned in para 9 of the adavit reproduced above. This date was apparently chosen for the IAS because on this date the Gradation List for all the earlier persons recruited to the service had been nalised and issued in a somewhat stable stage. But why should this date be applied to the Indian Police Service has not been adequately explained. Mr. BRL Iyengar, the learned counsel for the appellant, strongly urges that selection of May 19, 1951, as a crucial date for classifying people is arbitrary and irrational. We agree with him in this respect. It further appears from the adavit of Mr. D.K. Guha, Deputy Secretary to the Government of India, Min-

120

Maj Gen D.S. Nakara v. Union Of India 1982 that is what it seems to have done in this case-and say that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso. The Court held that the Central Government cannot pick out a date from a hat and that is what it seems to have done in saying that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso. In case before us, the eligibility criteria for being eligible for liberalised pension scheme have been picked out from where it is dicult to gather and no rationale is discernible nor one was attempted at the hearing. The ratio of the decision would squarely apply to the facts of this case. Similarly in Jaila Singh Anr. v. State of Rajasthan Ors.(1), this Court struck down as discriminatory the division of pre-1955 and post1955 tenants for the purpose of allotment of land made by the Rules under the Rajasthan Colonisation Act, 1954 observing that the various provisions indicate that the pre-1955 and post-1955 tenants stand on the same footing and therefore do not form dierent classes and hence the division was held to be based on wholly irrelevant consideration. The court further observed that it is dicult to appreciate how it would make any dierence from the point of view of allotment of land, whether a tenant has been in occupation for 16 years or 18 or 20 years and why differentiation should be made with reference to the date when Rajasthan Tenancy Act came into force. This

istry of Home Aairs, dated December 9, 1966 that the Government of India have recently decided in consultation with the Ministry of Law that the Ministry of Home Aairs letter No. 2/32/51-AIS, dated the 25th August, 1955 will not be applicable to those SCS/SPS ocers, who were appointed to IAS/IPS prior to the promulgation of IAS/IPS (Regulation of Seniority) Rules, 1954, and the date of the issue of the above letter if their earlier continuous ociation was approved by the Ministry of Home Aairs and Union Public Service Commission. It further appears that in the case of Shri C.S. Prasad also, an IPS Ocer of Bihar, a decision has been taken to give the benet of full continuous ociation in senior posts and to revise his year of allotment accordingly. But, it is stated that as Shri Nim was appointed to IPS on the 22nd October 1955, i.e. after the promulgation of IPS (Regulation of Seniority) Rules, 1954, and after the issue of letter dated 25.8.1955, his case does not fall even under this category. The above statement of the case of the Government further shows that the date, May 19, 1951 was an articial and arbitrary date having nothing to do with the application of the rst and the second provisos to Rule 3 (3). It appears to us that under the second proviso to Rule 3 (3) the period of ociation of a particular ocer has to be considered and approved or disapproved by the Central Government in consultation with the Commission considering all the relevant facts. The Central Government cannot pick out a date from a hat-and

121 division for the purpose of allotment of land with reference to certain date was considered both arbitrary and discriminatory on the ground that it was wholly unrelated to the objects sought to be achieved. As against this the learned Attorney-General invited our attention to Union of India Anr. v. M/s Parameswaran Match Works etc.(2) By a notication dated July 21, 1967, benet of a concessional rate of duty was made available if a manufacturer of matches made a declaration that the total clearance of matches from a factory would not exceed 75 million during a nancial year. As framed the notication extended the benet to manufacturers with higher capacity to avail of the concessional rate of duty by ling a declaration as visualised in the proviso to the notication by restricting their clearance to 75 million matches. This notication was amended on September 4, 1967 with a view to giving bona de small manufacturers, whose total clearance was not estimated to be in excess of 75 million matches, the benet of concessional rate of duty prescribed under notication dated July 21, 1967. The respondent in the case applied for a licence for manufacturing matches on September 5, 1967, that is, a day after the date on which amended notication was issued and led a declaration that the estimated manufacture for the nancial year would not exceed 75 million matches, but this was rejected. In a writ petition led by the respondent, the High Court held that the classication was unreasonable inasmuch as the xation of the date for making a declaration had no nexus with the object of the Act. In the appeal by the Union of India, this Court held that the concessional rate of duty was intended for small bona de units who were in the eld when the notication dated September 4, 1967 was issued. The concessional rate of duty was not intended to benet the large units which had split up into smaller units to earn the concession. With reference to selection of the date this Court observed as under : The choice of a date as a basis for classication cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of xing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide of the reasonable mark. In reaching this conclusion the Court relied on Louisville Gas Co. v. Alabama Power Co. (1) This decision is not an authority for the proposition that whenever a date is chosen, or an eligibility criteria which divides a class, the purpose of choice unrelated to the objects sought to be achieved must be accepted as valid. In fact it is made clear in the decision itself that even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical, the choice of the legislature may be accepted. Therefore, the choice of the date 203

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Maj Gen D.S. Nakara v. Union Of India 1982 delivering the budget speech, at the time of introduction of the 1970-71 budget, the intention to introduce a fresh Bill for the levy of tax was made clear. The Bill was published in June 73 in which it was made clear that the Act would be brought into force from April 1, 1970. After recalling the various stages through which the Bill passed before being enacted as Act, this Court held that the choice of date April 1, 1973 was not wide of the reasonable mark. The decision proceeds on the facts of the case. But the principle that when a certain date or eligibility criteria is selected with reference to legislative or executive measure which has the pernicious tendency of dividing an otherwise homogeneous class and the choice of beneciaries of the legislative/executive action becomes selective, the division or classication made by choice of date or eligibility criteria must have some relation to the objects sought to be achieved. And apart from the rst test that the division must be referable to some rational principle, if the choice of the date or classication is wholly unrelated to the objects sought to be achieved, it cannot be upheld on the specious plea that was the choice of the Legislature. Now if the choice of date is arbitrary, eligibility criteria is unrelated to the object sought to be achieved and has the pernicious tendency of dividing an otherwise homogeneous class, the question is whether the liberalised pension scheme must wholly fail or that the pernicious part can be severed, cautioning itself that this Court does not legislate but merely interprets

cannot be wholly divorced from the objects sought to be achieved by the impugned action. In other words, if the choice is shown to be thoroughly arbitrary and introduces discrimination violative of Art. 14, the date can be struck down. What facts inuenced the Courts decision in that case for upholding the choice of the date are worth- recalling. The Court held that the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated, if, by adopting the device of fragmentation, the larger units could become the ultimate beneciaries of the bounty. This was the weighty consideration which prompted the court to uphold the date. The learned Attorney General next referred to D.C. Gouse and Co. etc. v. State of Kerala Anr. etc. (1) This Court while repelling the contention that the choice of April 1, 1973 as the date of imposition of the building tax is discriminatory with reference to Art. 14 of the Constitution, approved the ratio in the case of M/s. Parameswaran Match Works etc. supra. Even while reaching this conclusion the Court observed that it is not shown how it could be said that the date (April 1, 1973) for the levy of the tax was wide of the reasonable mark. What appealed to the Court was that earlier an attempt was made to impose the building tax with eect from March 2, 1961 under the Kerala Building Tax Act, 1961 but the Act was nally struck down as unconstitutional by this Court as per its decision dated August 13, 1968. While

123 keeping in view the underlying intention and the object, the impugned measure seeks to subserve ? Even though it is not possible to oversimplify the issue, let us read the impugned memoranda deleting the unconstitutional part. Omitting it, the memoranda will read like this : At present, pension is calculated at the rate of 1/80th of average emoluments for each completed year of service and is subject to a maximum of 33/80 of average emoluments and is further restricted to a monetary limit of Rs. 1,000/- per month. The President is, now, pleased to decide that with eect from 31st March, 1979 the amount of pension shall be determined in accordance with the following slabs. If from the impugned memoranda the event of being in service and retiring subsequent to specied date is severed, all pensioners would be governed by the liberalised pension scheme. The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the Third Pay Commission but becoming operative from the specied date. It does therefore appear that the reading down of impugned memoranda by severing the objectionable portion would not render the liberalised pension scheme vague, unenforceable or unworkable. In reading down the memoranda, is this Court legislating ? Of course not. When we delete basis of classication as violative of Art. 14, we merely set at naught the unconstitutional portion retaining the constitutional portion. We may now deal with the last submission of the learned Attorney General on the point. Said the learned Attorney- General that principle of severability cannot be applied to augment the class and to adopt his words severance always cuts down the scope, never enlarges it. We are not sure whether there is any principle which inhibits the Court from striking down an unconstitutional part of a legislative action which may have the tendency to enlarge the width and coverage of the measure. Whenever classication is held to be impermissible and the measure can be retained by removing the unconstitutional portion of classication, by striking down words of limitation, the resultant eect may be of enlarging the class. In such a situation, the Court can strike down the words of limitation in an enactment. That is what is called reading down the measure. We know of no principle that severance limits the scope of legislation and can never enlarge it. To refer to the Jaila Singhs case (supra), when for the benet of allotment of land the articial division between pre-1955 and post-1955 tenant was struck down by this Court, the class of beneciaries was enlarged and the cake in the form of available land was a xed quantum and its distribution amongst the larger class would protanto reduce the quantum to each beneciary included in the class. Similarly when this Court in Randhir Singhs case (supra) held that the principle of equal pay for equal work may be

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properly applied to cases of unequal pay based on no classication or irrational classication it enlarged the class of beneciaries. Therefore, the principle of severance for taking out the unconstitutional provision from an otherwise constitutional measure has been well recognised. It would be just and proper that the provision in the memoranda while retaining the date for its implementation, but providing that in respect of Government servants who were in service on the 31st March, 1979 but retiring from service in or after that date can be legally and validly severed and must be struck down. The date is retained without qualication as the eective date for implementation of scheme, it being made abundantly clear that in respect of all pensioners governed by 1972 Rules, the pension of each may be recomputed as on April 1, 1979 and future payments be made in accordance with fresh computation under the liberalised pension scheme as enacted in the impugned memoranda. No arrears for the period prior to 31st March, 1979 in accordance with revised computation need be paid.

ing in view the emoluments drawn by him before retirement but in accordance with the principles of the liberalised pension scheme. The two features which make the liberalised pension scheme more attractive is the redening of average emoluments in Rule 34, and introduction of slab system simultaneously raising the ceiling. Within these parameters, the pension will have to be recomputed with eect from the date from which the liberalised pension scheme came into force i.e. March 31, 1979. There is no question of fresh commutation of pension of the pensioners who retired prior to 31st March, 1979 and have already availed of the benet of commutation. It is not open to them to get that benet at this late date because commutation has to be availed of within specied time limit from the date of actual retirement. May be some marginal retirees may earn the benet. That is inevitable. To say that by our approach we are restructuring the liberalised pension scheme, is to ignore the constitutional mandate. Similarly, the court is not conferring benets by this approach, the court only removes the ilIn this context the last submis- legitimate classication and after its sion of the learned Attorney Gen- removal the law takes its own course. eral was that as the pension is alBut in this context the learned ways correlated to the date of retire- Attorney submitted the following ment, the Court cannot change the quotation which appears to have date of retirement, and impose fresh been extracted from a decision of commutation benet. We are doing American Court, citation of which nothing of this kind. The apprehen- was not available. The quotation sion is wholly unfounded. The date may be extracted from the written of retirement of each employee re- submission. It reads as under: mains as it is. The average emoluIt remains to enquire whether ments have to be worked out keep- this plea that Congress would have

125 enacted the legislation and the Act being limited to employees engaged in commerce within the district of Columbia and the Territory. If we are satised that it would not or that the matter is in such doubt that we are unable to say what Congress would have done omitting the unconstitutional features then the statute must fail. essential commodities. In view of the present economic conditions in India and constant rise in the cost of living due to ination, it is all the more important even from purely humanitarian considerations if not from the stand point of fairness and justice, to protect the actual value of their meagre pensions to enable the pensioners to live in their declining years with We entertain no such apprehen- dignity and in reasonable comfort. sion. The Executive with parliamenTherefore, we are not inclined to tary mandate liberalised the pension share the apprehension voiced by the scheme. It is implicit in liberal- learned Attorney that if we strike ising the scheme that the deed to down the unconstitutional part, the grant little higher rate of pension to parliament would not have enacted the pensioners was considered em- the measure. Our approach may inently just. One could have un- have a parliamentary avour to senderstood persons in the higher pay sitive noses. bracket being excluded from the benThe nancial implication in such ets of the scheme because it would matters has some relevance. Howhave meant that those in higher pay ever in this connection, we want bracket could fend for themselves. to steer clear of a misconception. Such is not the exclusion. The ex- There is no pension fund as it is clusion is of a whole class of peo- found either in contributory penple who retire before a certain date. sion schemes administered in foreign Parliament would not have hesitated countries or as in Insurance-linked to extend the benet otherwise con- pensions. Non- contributory pensidered eminently just, and this be- sions under 1972 rules is a State oblicomes clearly discernible from page gation. It is an item of expenditure 35 of 9th Report of Committee on voted year to pear depending upon Petitions (Sixth Lok Sabha) April, the number of pensioners and the es1976. While examining their repre- timated expenditure. Now when the sentation for better pensionary ben- liberalised pension scheme was introet, the Committee concluded as un- duced, we would justiably assume der: that the Government servants would The Committee are of the view that Government owe a moral responsibility to provide adequate relief to its retired employees including pre 1.1.1973 pensioners, whose actual value of pensions has been eroded by the phenomenal rise in the prices of retire from the next day of the coming into operation of the scheme and the burden will have to be computed as imposed by the liberalised scheme. Further Government has been granting since nearly a decade temporary increases from time to time to pen-

126

Maj Gen D.S. Nakara v. Union Of India 1982 sion is admissible to all retirees. The gures submitted are thus neither frightening nor the liability is supposed to be staggering which would deect us from going to the logical end of constitutional mandate. Even according to the most liberal estimate, the average yearly increase is worked out to be Rs. 51 crores but that assumes that every pensioner has survived till date and will continue to survive. Therefore, we are satised that the increased liability consequent upon this judgment is not too high to be unbearable or such as would have detracted the Government from covering the old pensioners under the scheme. Locus standi of third petitioner was questioned. Petitioner No. 3 is a Society registered under the Societies Registration Act of 1860. It is a non-political non-prot and voluntary organisation. Its members consist of public spirited citizens who have taken up the cause of ventilating legitimate public problems. This Society received a large number of representations from old pensioners, individually unable to undertake the journey through labyrinths of legal judicial process, costly and protracted, and. therefore, approached petitioner No. 3 which espoused their cause Objects for which the third petitioner-Society was formed were not questioned. The majority decision of this Court in S.P. Gupta v. Union of India(1) rules that any member of the public having sucient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law

sioners. Therefore, the dierence will be marginal. Further, let it not be forgotten that the old pensioners are on the way out and their number is fast decreasing. While examining the nancial implication, this Court is only concerned with the additional liability that may be imposed by bringing in pensioners who retired prior to April 1, 1979 within the fold of liberalised pension scheme but effective subsequent to the specied date. That it is a dwindling number is indisputable. And again the large bulk comprises pensioners from lower echelons of service such as Peons, L.D.C., U.D.C., Assistant etc. In a chart submitted to us, the Union of India has worked out the pension to the pensioners who have retired prior to the specied date and the comparative advantage, if they are brought within the purview of the liberalised pension scheme. The dierence upto the level of Assistant or even Section Ocer is marginal keeping in view that the old pensioners are getting temporary increases. Amongst the higher ocers, there will be some difference because the ceiling is raised and that would introduce the dierence. It is however necessary to refer to one gure relied upon by respondents. It was said that if pensioners who retired prior to 31st March, 1979 are brought within the purview of the liberalised pension scheme, Rs. 233 crores would be required for fresh commutation. The apparent fallacy in the submission is that if the benet of commutation is already availed of, it cannot and need not be reopened. And availability of other benets is hardly a relevant factor because pen-

127 and seek enforcement of such public duty and observance of such constitutional or legal provision. Third petitioner seeks to enforce rights that may be available to a large number of old inrm retirees. Therefore, its locus standi is unquestionable. But it is a point of academic important because locus standi of petitioners Nos. 1 and 2 was never questioned. memoranda, Exhibits P-I and P-2, violates Art. 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under: In other words, in Exhibit P-1, the words: that in respect of the Government servants who were in service on the 31st March, 1979 and retiring from service on or after that That is the end of the jour- dateand in Exhibit P-2, the words: ney. With the expanding horizons the new rates of pension are efof socio-economic justice, the social- fective from 1st April 1979 and will ist Republic and welfare State which be applicable to all service ocers we endeavour to set up and largely who became/become non-eective on inuenced by the fact that the old or after that date. men who retired when emoluments are unconstitutional and are were comparatively low and are ex- struck down with this specication posed to vagaries of continuously ris- that the date mentioned therein will ing prices, the falling value of the be relevant as being one from which rupee consequent upon inationary the liberalised pension scheme beinputs, we are satised that by in- comes operative to all pensioners troducing an arbitrary eligibility cri- governed by 1972 Rules irrespective teria: being in service and retir- of the date of retirement. Omitting ing subsequent to the specied date the unconstitutional part it is defor being eligible for the liberalised clared that all pensioners governed pension scheme and thereby divid- by the 1972 Rules and Army Pening a homogeneous class, the classi- sion Regulations shall be entitled to cation being not based on any dis- pension as computed under the libercernible rational principle and hav- alised pension scheme from the specing been found wholly unrelated to ied date, irrespective of the date of the objects sought to be achieved by retirement. Arrears of pension prior grant of liberalised pension and the to the specied date as per fresh comeligibility criteria devised being thor- putation is not admissible. Let a writ oughly arbitrary, we are of the view to that eect be issued. But in the that the eligibility for liberalised pen- circumstances of the case, there will sion scheme of being in service on be no order as to costs. the specied date and retiring subH.L.C. Petition allowed. sequent to that date in impugned

128

Maj Gen D.S. Nakara v. Union Of India 1982

Chapter 9

Viswan v. Union Of India 1983

ACT: R. Viswan & Others v. Union Of India & Others on 6 May, 1983 Army Act, 1950-S. 21Equivalent citations: 1983 SCR (3) Constitutional validity of-Whether 60, 1983 SCC (3) 401 Bench: Bhag- saved by Art. 33. wati, P.N. Army Act, 1950-Sub-ss. (1) and PETITIONER: (4) of s. 4-Force- Meaning of. R. VISWAN & OTHERS General Reserve Engineering Force. (GREF)-Whether it is force within the meaning of sub-ss. (1) RESPONDENT: and (4) of s. 4 of Army Act, UNION OF INDIA & OTHERS 1950-Whether members of GREF DATE OF JUDGMENT06/05/1983 are members of Armed Forces within the meaning of Art. 33 of BENCH: Constitution- Whether S.R. Os. 329 BHAGWATI, P.N. and 330 applying provisions of Army BENCH: Act, 1950 and Army Rules 1954 to BHAGWATI, P.N. members of GREF in exercise of power under sub-ss. (1) and (4) of CHANDRACHUD, Y.V. ((CJ) s. 4 of Army Act, 1959 ultra vires REDDY, O. CHINNAPPA (J) Art. 33 of Constitution-Whether apERADI, V. BALAKRISHNA (J) plication of Central Civil Services MISRA, R.B. (J) (Classication, Control and Appeal) Rules, 1965 as also provisions of CITATION: Army Act and Army Rules to mem1983 SCR (3) 60 1983 SCC (3) bers of GREF violative of Art. 14 of 401 Constitution. 1983 SCALE (1)497 HEADNOTE: v.

130 The petitioners who belonged to the General Reserve Engineering Force (GREF) were charged under s. 63 of the Army Act, 1950 on allegations inter alia that they had assembled in front of the Chief Engineer and shouted slogans demanding release of personnel placed under arrest, participated in a black ag demonstration and associated themselves with an illegal association. They were tried by Court Martial in accordance with the prescribed procedure and, on being convicted, were dismissed from service. The petitioners submitted that their convictions by Court Martial were illegal and raised the following contentions in support of their plea: that the GREF was a civilian construction agency and not a force raised and maintained under the authority of the Central Government and consequently, the members of GREF were not members of Armed Forces or the Forces charged with the maintenance of public order within the meaning of Art. 33 of the Constitution and therefore the application of s. 21 of the Army Act read with rs. 19 to 21 or the Army Rules to them was unconstitutional since it restricted their fundamental rights in a manner not permitted by the Constitution; that S.R. Os 329 and 330 which were notications having the eect of applying the provisions of the Army Act and the Army Rules to the members of the GREF were ultra vires the powers of the Central Government under sub-ss. (1) and (4) of s. 4 of the Army Act; that s. 21 of the Army Act was unconstitutional as it was not justied by the terms

Viswan v. Union Of India 1983 of Art. 33 since under that Article it was Parliament alone which was entrusted with the power to determine to what extent any of the fundamental rights shall, in application to the members of the Armed Forces or Forces charged with the maintenance of public order, be restricted or abrogated and Parliament could not have left it to the Central Government to determine the extent of such restriction or abrogation as was sought to be done under s. 21; that the petitioners were entitled to exercise their fundamental rights under cls. (a), (b) and (c) of Art. 19 (1) without any of the restrictions imposed by rs. 19 to 21 of the Army Rules and therefore they could not be charged under s. 63 of the Army Act on the facts alleged against them; that their trial was not in accordance with law; and that the application of the provisions of the Army Act and the Army Rules to the members of GREF for purposes of discipline was discriminatory and violative of Art. 14 inasmuch as the members of the GREF were governed both by the Central Civil Services (Classication Control and Appeal) Rules, 1965 and the provisions of the Army Act and the Army Rules in matters of discipline. Dismissing the petitions, HELD 1. (a) The functions and duties of GREF are integrally connected with the operational plans and requirements of the Armed Forces. There can be no doubt that without the ecient and disciplined operational role of GREF the military operations in border areas during peace as also in times of war will

131 be seriously hampered and a highly disciplined and ecient GREF is absolutely essential for supporting the operational plans and meeting the operational requirements of the Armed Forces. The members of the GREF answer the description of members of the Armed Forces within the meaning of Art. 33 and consequently the application of s. 21 of the Army Act to the members of GREF is protected by that Article and the fundamental rights of the members of GREF must be held to be validly restricted by s. 21 read with rs. 19 to 21 of Army Rules. The petitioners were therefore liable to be charged under s. 63 of the Army Act for the alleged violations of rs. 19 to 21 and their convictions and subsequent dismissals must be held to be valid. [88 F-89 B] (b) The fact that the members of the GREF are described as civilian employees and they have their own special rules of recruitment and are governed by the Central Civil Services (Classication, Control and Appeal) Rules, 1965 is not determinative of the question whether they are members of the Armed Forces. The question whether the members of GREF can be said to be members of the Armed Forces for the purpose of attracting the applicability of Art. 33 must depend essentially on the character of GREF, its organisational set up, its functions, the role it is called upon to play in relation to the Armed Forces and the depth and intimacy of its connection and the extent of its integration with the Armed Forces. The history, composition, administration, organisation and role of GREF clearly show that GREF is an integral part of the Armed Forces and that the members of GREF can legitimately be said to be members of the Armed Forces within the meaning of Art. 33. It is undoubtedly a departmental construction agency as contended on behalf of the petitioners but it is distinct from other 62 construction agencies such as the Central Public Works Department in that it is a force intended primarily to support the Army in its operational requirement. [87 D-H, 83 G] Ous Kutilingal Achudan Nair and Ors. v. Union of India and Ors., [1976] 2 S.C.R. 769, referred to. (c) The Central Government is empowered under sub-s. (1) of s. 4 of the Army Act to apply any of the provisions of that Act to any force raised or maintained in India under the authority of that Government. When the provisions of the Army Act are applied to any force under sub-s. (1) of s. 4, the Central Government can, by notication issued under subs. (4) thereof, direct by what authority, the jurisdiction, powers and duties incident to the operation of those provisions shall be exercised or performed in respect of that force. The word force is not dened any where in the Army Act but sub-s. (2) of s. 4 clearly contemplates that force referred to in sub-s. (1) of s. 4 must be a force organised on similar lines as the army with rank structure. There can be no doubt that GREF is a force organised on army pattern with units and sub-units and rank

132 structure. It is clear from the letter dated June 16, 1960 addressed by the Secretary, Border Roads Development Board to the Director General Border Roads that GREF is a force raised and maintained under the authority of the Central Government. The Central Government therefore had the power under subss. (1) and (4) of s. 4 to issue notications S.R.O. 329 and S.R.O. 330 applying some of the Army Act and the Army Rules to the GREF. [82 BH] (d) There is no substance in the contention that applying the provisions of the Army Act and the Army Rules to the members of GREF for purpose of discipline is discriminatory and violative of Art. 14. The nature of the proceedings which may be taken under the Central Civil Services (Classication, Control and Appeal) Rules against an erring employee is dierent from the nature of the proceedings which may be taken against him under the provisions of the Army Act read with Army Rules, the former being disciplinary in character while the latter being clearly penal. There is no overlapping between the two because ss. 20 and 71 of the Army Act which deal with dismissal, removal or reduction in rank have not been made applicable to the members of GREF by S.R.O. 329. The respondents have positively stated in their adavit that clear and detailed administrative guidelines have been laid down for the purpose of guiding the disciplinary authority in exercising its discretion whether to take ac-

Viswan v. Union Of India 1983 tion against an employee of GREF under Central Civil Services (Classication, Control and Appeal) Rules or the Army Rules and therefore it is not possible to say that the discretion vested in the authorities is unguided or uncanalised. Moreover, the decision in Northern India Caterers v. Punjab on which this contention is based has been overruled in Maganlal Chhaganlal v. Municipal Corporation, Greater Bombay. In any event, the provisions of the Army Act and the Army Rules as applied to the members of GREF are protected by Art. 33 against invalidation on the ground of violation of Art. 14. [90 G-92 B] Northern India Caterers v. Punjab, [1976] 3 S.C.R. 399; and Maganlal Chhaganlal v. Municipal Corporation, Greater Bombay, [1974] 2 S.C.C. 402, referred to. (e) The contention that the trial of the petitioners was not in accordance with law was strongly resisted by the respondents and having regard to the averments made by them on this point it is not possible to hold that the convictions of the petitioners by the Court Martial were not in accordance with law. In any event, the allegation of the petitioners in this behalf raised disputed questions of fact which it is not possible to try in a writ petition. [90 A-F] (f) The alleged disparity between the Army personnel posted in GREF units and ocers and men of GREF in so far as the terms and conditions of service such as salary, allowances and rations has no real bearing on the question whether the members of GREF can be said to be members of Armed Forces. Since the members of GREF are drawn from

133 dierent sources it is possible that the terms and conditions of service of the personnel coming from the two sources may be dierent. In case it is found that there is any disparity the Central Government may consider the advisability of taking steps for its removal. [89 C-H] 2. Section 21 of the Army Act empowers the Central Government to make rules restricting to such extent and in such manner as may be necessary three categories of rights of any person subject to the Army Act. These rights are part of the fundamental rights under cls. (a), (b) and (c) of Art. 19(1) and under the constitutional scheme, they cannot be restricted by executive action unsupported by law. But s. 21 is saved by Art. 33 which carves out an exception in so far as the applicability of fundamental rights to members of the Armed Forces and the Forces charged with the maintenance of public order is concerned. On a plain grammatical construction of its language, Art. 33 does not require that Parliament itself must by law restrict or abrogate any of the fundamental rights in order to attract the applicability of that Article. What it says is only this and no more, namely that Parliament may by law determine the permissible extent to which any of the fundamental rights may be restricted or abrogated in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order. Parliament itself can by enacting a law restrict or abrogate any of the fundamental rights in their application to the members of these forces as in fact it has done by enacting the Army Act But having regard to the varying requirement of army discipline and the need for exibility in this sensitive area it would be inexpedient to insist that Parliament itself should determine what particular restrictions should be imposed and on which fundamental rights in the interest of proper discharge of duties by the members of these Forces and maintenance of discipline among them The extent of such restrictions would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. The Constitution makers were obviously anxious that no more restrictions should be placed on the fundamental rights of the members of these Forces than are absolutely necessary for ensuring proper discharge of their duties and the maintenance of discipline among them. They therefore, decided to introduce a certain amount of exibility in the imposition of such restrictions and, by Art. 33, empowered Parliament to determine the permissible extent to which any of the fundamental rights in their application to the members of these Forces may be restricted or abrogated so that, within such permissible extent determined by Parliament, any appropriate authority authorised by Parliament may restrict or abrogate any such fundamental rights. Parliament was therefore, within its power under Art. 33 to enact s.21. The extent to which restrictions may be imposed on the fundamental rights

134 under cls. (a), (b) and (c) of Art. 19(1) is clearly indicated in cls. (a), (b) and (c) of s. 21 and the Central Government is authorised to impose restrictions on these fundamental rights only to the extent of the rights set out in cls. (a), (b) and (c) of s. 21 and no more. The guidelines for determining as to which restrictions should be considered necessary by the Central Government within the permissible extent determined by Parliament is provided in Art. 33 itself, namely, that the restrictions should be such as are necessary for ensuring the proper discharge of their duties by the members of the Armed Forces and the maintenance of discipline among them The Central Government has to keep this guideline before it in exercising the power of imposing restrictions under s. 21. Once the Central Government has imposed restrictions in exercise of this power, the Court will not ordinarily interfere with the decision of the Central Government that such restrictions are necessary because that is a matter left by Parliament exclusively to the Central Government which is best in a position to know what the situation demands. Section 21 must, in the circumstances, be held to be constitutionally valid as being within the power conferred under Art. 33. [83 B-D, 78 -81 C] Ram Swarup v. Union of India, [1964] 5 S.C.R. 931, referred to.

Viswan v. Union Of India 1983 4510, 4511, 4512, 4551/80 & 3861, 3848, 8317/81 and 59 of 1982. (Under article 32 of the Constitution of India) AND Special Leave Petition (Crl.) Nos. 2061-65 of 1980. From the Judgment and Order dated the 19th May, 1980 of the Delhi High Court in Criminal Writ Petition Nos. 2427/80 & 30/80. K.K.Venugopal, Miss Mridula Roy, D. P. Mukherjee, A.K. Ganguli & G.S. Chatterjee, with him for the Petitioners in WPs. 815, 5116, 843, 844, 8317. M. K. Ramamurthy, Janardhan Sharma and P. Gaur with him for the Petitioners in WPs. 3460, 1383, 4510, 4551, 1301-04, 4511, & SLPs. 2061-65. Miss Kailash Mehta for the Petitioners in WP. 3861. M.M.L. Srivastava for the Petitioner in WP. 3848. Chandramouli-Petitioner in personin WP.632. Nemo in WP. 59. R.K. Mehta for the Petitioner in WP. 4512/80. L.N. Sinha, Attorney General, M.K.Banerji, Additional Solicitor General, K.M. Abdul Khader, Girish Chandra and Miss A. Subhashini with them for the Respondents. The Judgment of the Court was delivered by

BHAGWATI, J. These writ petitions raise a short but interesting question of law relating to the interpretation of Article 33 of the Constitution. The question is whether section 21 of the Army Act 1950 read JUDGMENT: with Chapter IV of the Army Rules ORIGINAL JURISDICTION : 1954 is within the scope and ambit of W.P. (CRL) Nos. 815, 843, 632/80, Article 33 and if it is, whether Cen844, 5116/81, 1301-04, 1383, 3460, tral Government Notications Nos.

135 SRO 329 and 330 dated 23rd September 1960 making inter alia section 21 of the Army Act 1950 and Chapter IV of the Army Rules 1954 applicable to the General Reserve Engineering Force are ultra vires that Article since the General Reserve Engineering Force is neither an Armed Force nor a Force charged with the maintenance of public order. It is a question of some importance since it aects the fundamental rights of a large number of persons belonging to the General Reserve Engineering Force and in order to arrive at a correct decision of this question, it is necessary rst of all to consider the true nature and character of the General Reserve Engineering Force. In or about 1960 it was felt that economic development of the North and North Eastern Border areas were greatly handicapped by meagre and inadequate communications and defence of these areas also required a net work of roads for eective movement and deployment of Armed Forces. This was rendered all the more necessary because the relations of India with its neighbours were in a state of potential conict and part of the Indian territory was under foreign occupation and there were also hostile forces inviting some sections of the people to carry on a campaign for secession. The Government of India therefore, with a view to ensuring coordination and expeditious execution of projects designed to improve existing roads and construct new roads in the border areas is order to improve the defence preparedness of the country, created several posts in the Directorate General of Works. Army Head Quarters for work connected with the development of border roads as per letter dated 9th April 1960 addressed by the Under Secretary to the Government of India, Ministry of Defence to the Chief of the Army Sta. On 18th April 1960, within a few days thereafter, the Government of India sanctioned the post of Directorate General Border Roads in the rank of Major-General in the Directorate General of Works, Army Head Quarters; vide letter dated 18th April 1960 addressed by the Under Secretary to the Government of India, Ministry of Defence to the Chief of the Army Sta. The Director General Border Roads was placed in charge of this new organisation which started originally as part of the Directorate General of Works, Army Head Quarters. But subsequently, for reasons of high policy, it was decided that this Organisation should not continue as part of the Directorate General of Works, Army Head Quarters but should be under the Board Roads Development Board set up by the Government of India as a separate self contained Authority under the Chairmanship of the Prime Minister with the Defence Minister as Deputy Chairman, the Financial Adviser (Defence) as Financial Adviser and a few other members nominated by the Prime Minister. The budget of the Border Roads Development Board formed part of the budget of the Ministry of Shipping and Transport but the nancial control was vested in the Ministry of Finance (Defence). The Govern-

136 ment of India by a letter dated 16th June 1960 addressed by the Secretary of the Border Roads Development Board to the Director General, Border Roads conveyed the sanction of the President to raising and maintenance of a General Reserve Engineering Force for the construction of roads in the border areas and such other tasks as may be entrusted to it by the Border Roads Development Board. It was directed that the General Reserve Engineering Force will be under the over all command of the Director General Border Roads under whom will be Regional Chief Engineers/Independent Deputy Chief Engineers who will exercise command Over the units of the Force placed under their control. The General Reserve Engineering Force (hereinafter referred to as GREF) was thus raised under the authority of the Government of India and It was placed under the over all command of the Director General, Border Roads. Ever since then the Director General, Border Roads, has always been an army ocer of the rank of Major General and he functions under the directions of the Border Roads Development Board, The General Reserve Engineering Force (GREF) is organised on army pattern in units and sub units with distinctive badges of rank and a rank structure equivalent to that in the army. The ocers and other personnel of GREF arc required to be in uniform right from class IV to Class I personnel. Though GREF is undoubtedly a departmental construction agency, it is maintained by the Government of India to meet the op-

Viswan v. Union Of India 1983 erational requirements of the army whose operational planning is based on the availability of the units of GREF for operational purposes. In fact GREF pro- vided support to the Army during Indo-China conict of 1962 and Indo-Pakistan conicts of 1965 and 1971 and also assisted the Army in the maintenance of public order during the disturbances in Mijoram in 1966 and in Assam in 198081. The personnel of GREF are primarily drawn from two sources and they consist of (I) ocers and men belonging to the Army and (2) ocers and men recruited, through the Union Public Service Commission in case of ocers and departmentally in case of other ranks. A ten per cent quota is reserved for recruitment of ex-servicemen. The posting of Army ocers and men in GREF is done, not on any ad hoc basis, but in accordance with a well thought out manning policy laid down by the Government of India for the purpose of maintaining at all times and at all levels the special character of GREF as a force designed to Meet the operational requirement of the Army. The manning policy laid down by the Government of India in respect of ofcers is as under: G Posts Army GREF Brig/Col/Chief Engineer Gr. I & II 75% 25% Lt. Col./Superintending Engineer 50% 50% Major/Executive Engineer 42% 58% Capt./Asstt. Executive Engineer 20% 80% Assistant Engineer - 100% So far as ocers and men recruited through the Union Public

137 Service Commission or departmentally are concerned, all of them are given training at the GREF Centre, immediately after recruitment. The GREF Centre is organised on lines similar to an Army Regimental Centre and also functions in the same manner. It is located at a place adjoining an Engineer Regimental Centre, initially at Roorkee and now at Pune, so that it can, if necessary, draw upon the resources of the Engineer Regimental Centre. The new recruits are imparted training in the following three military disciplines: (a) Discipline, which includes drill, marching and saluting. (b) Combat training, including physical training i.e. standing exercises, beam exercises, rope work, route marches etc., harbour deployment drills, camp protection etc. (c) Combat Engineering Training, including eld engineering, handling of service explosives, camouage, combat equipment, bridging, eld fortications, wire obstacles etc. GREF personnel are not trained in the use of arms, since the role to be performed by GREF is such that its personnel are not required to use arms and they need arms only for static protection and for use during emergency. Therefore in GREF issue of arms is restricted only to Army personnel and ex- servicemen apart from certain units like the Provost Units (GREF Police) which having regard to the nature of their duties, have necessarily to be armed. The tasks which are to be carried out by GREF comprise not only maintenance of strategic roads but also support for the operational plans of the Army in place of Army Engineer Regiments. We shall presently elaborate these tasks in order to highlight the true character of GREF, but before we do so, we may point out that the role and organisation of GREF units have been reviewed from time to time in consultation with the Army Headquarters and as a result of a major review carried out after the Indo-Pakistan Conict of 1971, the Army Headquarters dened the role and organisation of GREF units in a secret document dated 24th January 1973. It is clear from this document that, according to the Army Headquarters, a minimum of 17 Border Roads Task Forces and 34 Pioneer Companies are permanently required for providing engineer support to the Army and over the years, this minimum requirement has been fullled and 17 Border Roads Task Forces and 34 Pioneer Companies have been made permanent. These 17 Border Roads Task Forces and 34 Pioneer Companies have to be maintained as essential units of GREF for meeting the operational requirement of the Army, even if sucient work load is not available in Border Areas at any given point of time. There are, in fact, at present 21 Border Roads Task Forces and 34 Pioneer Companies, that is, four Border Roads Task Forces more than the minimum required by the Army Authorities The requirement of these four additional Border Roads Task Forces is reviewed from time to time depending on the work-load. What should be the composition of the Bor-

138 der Roads Task Forces is laid down in the document dated 24th January 1973 and this document also sets out the tasks to be carried out by the Border Roads Task Forces which may be briey summarised as follows: (a) Maintenance of line of communication in rear areas of the theatre of operations including roads constructed by the Border Roads and roads maintained by CPWD, State PWD and MES. (b) Improvement and maintenance of operational roads and tracks constructed by combat engineers; (c) Construction and maintenance of AICs and helipads; (d) Improvement and repairs to airelds; (e) Construction of accommodation and all allied facilities for maintenance areas required for sustaining operations; (f) Construction of defence works and obstacles; and (g) Water supply in dicult terrain and deserts. These tasks are required to be carried out by the Border Roads Task Forces during operations with a view to providing engineering support to the army in its operational plans. The Border Roads Task Forces have to perform these tasks not only within the country upto the border but also beyond the border upto the extent of advance into enemys territory. Even during peace time the Border Roads Task Forces have to be suitably positioned in the likely area of operations so that they can, in the event of hostilities, be quickly deployed on their operational tasks. The Border Roads Tasks Forces alongwith the Pi-

Viswan v. Union Of India 1983 oneer Companies attached to them are also included in the Order of Battle of the Army so that the support of these units to the Army is guaranteed and can be requisitioned at any time. These units of GREF are further sub-allotted to the lower army formations such as Command, Corps and Division and they appear on the Order of Battle of these formations. Their primary function is to carry out works projected by the General Sta, Army Headquarters to meet the operational requirements and these works, include, inter alia, construction and maintenance of roads operational tracks, airelds, ditch-cum-bund. (water obstacles on the border) and eld fortications like bunkers re trenches and Pill Boxes. If after meeting the requirements of the General Sta, Army Headquarters, there is spare capacity available with these units of GREF, they undertake construction work on behalf of other ministries or departments, though even there, preference is given to strategic and other roads in sensitive border areas. The funds allocated for the Border Roads Organisation are non- plan funds meant exclusively to meet the requirements of the General Sta, Army Headquarters and they cannot be used for carrying out the works of other ministries or departments. When works are undertaken by GREF units on behalf of other ministries or departments, they are treated as works on agency basis and, where applicable, agency charges are collected by the Border Roads Organisation from the ministries or departments whose work is carried out by them.

139 GREF units undertake, as far as possible, only those tasks which are similar in nature to the tasks for which they are primarily designed to meet Army requirements. It is apparent from the further adavit of Lt. Col. S.S. Cheema that the major portion of the work carried out by GREF units consists of tasks entrusted by the General Sta, Army Headquarters and the tasks carried out on agency basis on behalf of other ministries or departments are comparatively of much lesser value. In fact, until 1966 no work on agency basis was undertaken by GREF units and during the period 1967 to 1970 less than 2 percent of the total work was executed by GREF units for other ministries or departments. Even during the years 1970-71 to 1980-81, the percentage of work carried out by GREF units on behalf of other ministries of departments did not on an average exceed 15 per cent of the total work. The gures for the year 1980-81 also reveal the same pattern. During 1981-82 the work executed by GREF units for General Sta, Army Headquarters consisted of construction and maintenance of 12865 kms. of roads out of the funds of the Border Roads Organisation and 310 kms. of ditch-cum-bunds out of funds provided as the Defence Ministry while the agency work entrusted by the Ministry of Shipping and Transport did not cover more than 519 km. of strategic roads, 216 kms. of sensitive broader area roads and 376 kms. of National Highways in border areas and the agency work entrusted by other ministries was limited only to 702 kms. of roads. It will thus be seen that the major part of the work executed by GREF units consists of tasks entrusted by the General Sta, Army Headquarters and only a small percentage of work is being done on behalf of other ministries or departments when spare capacity is available. So far as the personnel of GREF are concerned, they are partly drawn from the Army and partly by direct recruitment. Army personnel are posted in GREF according to a deliberate and carefully planned manning policy evolved with a view to ensuring the special character of GREF as a force intended to support the Army in its operational requirements. The posting of Army personnel in GREF units is in fact regarded as normal regimental posting and does not entitle the Army personnel so posted to any deputation or other allowance and it is equated with similar posting in the Army for the purpose of promotion, career planning, etc. The tenure of Army personnel posted in GREF units is treated as normal Regimental Duty and such Army personnel continue to be subject to the provisions of the Army Act 1950 and the Army Rules 1954 whilst in GREF. But quite apart from the Army personnel who form an important segment of GREF, even the directly recruited personnel who do not come from the Army are subjected to strict Army discipline having regard to the special character of GREF and the highly important role it is called upon to play in support of the Army in its operational requirements. Since the capacity and e-

140 ciency of GREF units in the event of outbreak of hostilities depends on their all time capacity and eciency they are subjected to rigorous discipline even during peace time, because it is elementary that they cannot be expected suddenly to rise to the occasion and provide necessary support to the Army during military operations unless they are properly disciplined and in t condition at all times so as to be prepared for any eventuality. The Government of India has in exercise of the power conferred upon it by sub- sections (1) and (4) of Section 4 of Army Act 1950 issued a Notication bearing SRO 329 dated 23rd September 1960 applying to GREF all the provisions of that Act with the exception of those shown in Schedule A, subject to the modications set forth in Schedule B and directing that the ofcers mentioned in the rst column of Schedule C shall exercise or perform, in respect of members of the said Force under their command, the jurisdiction, powers and duties incident to the operation of that Act specied in the second column of Schedule C. This Notication makes various provisions of Army Act 1950 applicable to GREF and amongst them is Section 21 which provides: Subject to the provisions of any law for the time being in force relating to the regular Army or to any branch thereof, the Central Government may, by notication, make rules restricting to such extent and in such manner as may be necessary the right of any person subject to this Act:-

Viswan v. Union Of India 1983 (a) to be a member of, or to be associated in any way with, any trade union or labour union or any class of trade of labour unions, or and society, institution or association or any class of institution or associations; (b) to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes; (c) to communicate with the press or to publish or cause to be published any book, letter or other documents. The other sections which are made applicable deal with special privileges, oences, punishments, penal deductions, arrest and proceedings before trial, Court Martial and other incidental matters. These section which are made applicable are primarily intended to impose strict discipline on the members of GREF the same kind of discipline which is required to be observed by the regular Army personnel. The Government of India has also in exercise of the powers of conferred by Section 21, sub-section (4) of Section 102 and section 191 of the Army Act 1950 issued another Notication bearing SRO 330 on the same day, namely, 23rd September 1960, directing that the Army Rules 1954 as amended from time to time shall, with the exception of Rules 7 to 18, 168, 172 to 176, 190 and 191, be deemed to be Rules made under the Army Act 1950 as applied to GREF. Rules 19, 20 and 21 of the Army Rules 1954 are material for the purpose of the present writ petitions and they provide inter alia as follows

141 19. Unauthorised organisationsNo person subject to the Act shall, without the express sanction of the Central Government:to a political question or on a service subject or containing any service information, or publish or cause to be published any book or letter or article or other document on such question or matter or containing such information without the prior sanction of the Central Government, or any ocer specied by the Central Government in this behalf; or

(i) take ocial cognizance of, or assist or take any active part in, any society, institution or organisation not recognised as part of the Armed Forces of the Union; unless it be of a recreational or religious nature in which case prior sanction of the su(ii) deliver a lecture or wireless perior ocer shall be obtained; address, on a matter relating to a po(ii) be a member of, or be asso- litical question or on a service subciated in any way with, any trade ject or containing any information or union or labour union, or any class views on any service subject without the prior sanction of the Central of trade or labour unions. Government or any ocer specied 20. Political and non-military by the Central Government in this activities-(1) No person subject to behalf. the Act shall attend, address, or take These rules obviously owe their part in any meeting or demonstration held for a party or any political pur- genesis to Section 21 and they imposes, or belong to join or subscribe pose restrictions on the fundamental in the aid of, any political association rights of members of GREF. Since the Army Act 1950 and Army Rules or movement. 1954 are made applicable by virtue (2) No person subject to the Act of SRO Nos. 329 and 330 dated 23rd shall issue an address to electors or in September, 1960, GREF personnel any other manner publicly announce when recruited, are required to achimself of allow himself to be pubcept certain terms and conditions of licly announced as a candidate or as a appointment which include inter alia prospective candidate for election to the following: Parliament, the legislature of a State, 5 (iv): You will be governed by or a local authority, or any other pubthe provisions of Central Civil Serlic body or act as a member of a candidates election committee or in any vice (Classication, Control and Apway actively promote or prosecute a peal) Rules, 1965, as amended from time to time. Notwithstanding the candidates interests. above, you will be further subject to 21. Communications to the certain provisions of the Army Act, Press, Lectures, etc-No person sub1950, and Rules made thereunder, as ject to the Act shall.laid down in SROs. 329 and 330 of (i) publish in any from whatever 1960, for purposes of discipline. It or communicate directly or indirectly will be open to the appropriate disto the Press any matter in relation ciplinary authority under the Army

142

Viswan v. Union Of India 1983

Act 1950 to proceed under its provi- tion must apply equally in regard to sions wherever it considers it expedi- the other writ petitions. The petient or necessary to do so. tioners in writ petition No. 815 of 5 (v): You will be required to 1980 are 24 in number and at all maserve anywhere in India or outside In- terial times they were members of dia and when so called upon by the GREF. Out of them, petitioner Nos. Government or the appointing au- 1 and 24 were deserters from service thority or your superior ocer, you and warrants were issued for their arshall proceed on eld service. 5 (vi): rest under the provisions of the Army You shall, if required, be liable to Act 1950 but the Police Authorities serve in any Defence Service or post were not able to apprehend them. So connected with the defence of India. far as petitioners Nos. 2 to 23 are concerned, they were charged before 5 (xi): On your appointment, you the Court Martial for oences unwill be required to wear the preder section 63 of the Army Act 1950 scribed uniform while on duty, abide in that they alongwith some other by such rules and instructions issued GREF personnel assembled in front by your superior authority regardof HQ Chief Engineer (Project) Varing discipline, turnout, undergo such tak shouting slogans and demanding training and take such departmenrelease of HQ CE (P) Vartak pertal test as the Government may presonnel placed under arrest, removed scribe. their belts and threw them on the The result is that the directly ground in the vicinity of OCs Oce, recruited GREF personnel are gov- participated in a black ag demonerned by the provisions of Central stration and failed to fall in line Civil Service (Classication, Control though ordered to do so by Brig. Goand Appeal) Rules 1965 as amended sain, Chief Engineer Project, Vartak from time to time but for purposes and also associated themselves with of discipline, they are subject to cer- an illegal association called All Intain provisions of the Army Act 1950 dia Border Roads Employees Assoand the Army Rules 1954 as laid ciation. These 22 petitioners were down in SROs 329 and 330 dated tried by the Court Martial in ac23rd September 1960. cordance with the procedure preThe material facts in all the writ scribed by the Army Act 1950 and petitions which are being disposed the Army Rules 1954 as applicaof by this Judgment are similar and ble to the members of GREF and hence it is not necessary to set out on being convicted, they were disseparately the facts of each writ pe- missed from service. The petitioners tition. It will suce to set out the thereupon preferred writ petition No. facts of writ petition No. 815 of 815 of 1980 challenging the validity 1980 which was tried as the main writ of SROs. 329 and 330 dated 23rd petition and whatever we say in re- September 1960 since these Noticagard to the facts of this writ peti- tions had the eect of applying the provisions of the Army Act 1950 and

143 the Army Rules 1954 to the members of GREF and restricting their fundamental rights. The petitioners contended that GREF was not a Force raised and maintained under the authority of the Central Government and SROs. 329 and 330 dated 23rd September 1960 were ultra vires the powers of the Central Government under sub-sections (1) and (4) of Section 4 of the Army Act 1950. The petitioners also urged that in any event the application of Section 21 of the Army Act 1950 read with Rules 19 to 21 of the Army Rules 1954 to the members of GREF was unconstitutional since it restricted the fundamental rights of the members of GREF in a manner not permitted by the Constitution and such restriction of the fundamental rights was not protected by Article 33, because the members of GREF was not members of the Armed Forces or the Forces charged with the maintenance of public order within the meaning of that Article. There was also one other contention advanced on behalf of the petitioners which, if well founded would render it unnecessary to examine whether GREF was a Force raised and maintained under the authority of the Central Government and the members of GREF were members of the Armed Forces or the Forces charged with the maintenance of public order and that contention was that Section 21 of the Army Act 1950 was in any event not justied by the terms of Article 33, since under that Article it was Parliament alone which was entrusted with the power to determine to what extent any of the fundamental rights shall, in application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them and Parliament could not leave it to the Central Government to determine the extent of such restriction or abrogation as was sought to be done under- Section 21. Section 21 was therefore, according to the petitioners, unconstitutional and void and alongwith Section 21 must fall Rules 19 to 21 of the Army Rules 1954. The petitioners contended that in the circumstances they were entitled to exercise their fundamental rights under Clauses (a), (b) and (c) of Art. 19 (1) without any of the restriction imposed by Rules 19 to 21 of the Army Rules 1954 and if that be so, they could not be charged under section 63 of the Army Act 1950 on the facts alleged against them and their convictions by the Court Martial were illegal and void and consequently they continued in service of GREF. The self same contentions were repeated on behalf on the petitioners in the other writ petitions. The respondents disputed the validity of these contentions and submitted that GREF was a Force raised and maintained under the authority of the Central Government and having regard to the special character of GREF and the role which it was required to play in support of the Army operations, the members of GREF could legitimately be regarded as members of the Armed Forces within the meaning of Art. 33 and the Cen-

144 tral Government was therefore entitled to issue SROs. 329 and 330 dated 23rd September 1960 making the provisions of the Army Act 1950 and the Army Rules 1954 and particularly Section 21 and Rules 19 to 21 applicable to the members of GREF. The respondents defended the validity of Section 21 and contended that it was a proper exercise of power by Parliament under Art. 33 determining the extent to which the Fundamental Rights may, in their application to the members of the Armed Forces including GREF, be restricted or abrogated and it was not outside the power conferred on Parliament by that article and, read with Rules 19 to 21, it validly restricted the Fundamental Rights of the members of GREF. The respondents submitted that in the circumstances the petitioners were rightly charged under Section 63 of the Army Act 1950 and their convictions by the Court Martial and subsequent dismissals were valid. The respondents thus sought to sustain the validity of the action taken by the authorities against the petitioners. Now the rst question that arises for consideration on these rival contentions is as to the constitutional validity of Section 21. That section empowers the Central Government by notication to make rules restricting to such extent and in such manner as may be necessary three categories of rights of any person subject to the Army Act 1950, namely, (a) the right to be a member of or to be associated in any way with, any trade union or labour union, or

Viswan v. Union Of India 1983 any class of trade or labour unions, or any society, institution or association or any class of institution or associations; (b) the right to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes; and (c)the rights to communicate with the press or to publish or cause to be published any book, letter or other document. These rights which are permitted to be restricted are part of the Fundamental Rights under clauses (a), (b) and (c) of article 19(1) and under the constitutional scheme, they cannot be restricted by executive action unsupported by law. If any restrictions are to be imposed, that can be done only by law and such law must satisfy the requirements of clause (2), (3) or (4) of article 19 according as the right restricted falls within clause (a), (b) or (c) of article 19(1). The restrictions imposed must be reasonable and in case of right under clause (a) of article 19(1), they must be in the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an oence as provided in clause (2) of article 19, in case of right under clause (b) of article 19(1), they must be in the interest of the sovereignty and integrity of India or public order as provided in clause (3) of article 19 and in case of right under clause (c) of article 19(1), they must be in the interest of the sovereignty and integrity of India or public order or morality

145 as provided in clause (4) of article 19. Then only they would be valid; otherwise they would be unconstitutional and the law imposing them would be void. Now here we nd that Section 21 does not itself impose any restrictions on the three categories of rights there specied. If Section 21 had itself imposed any such restrictions, it would have become necessary to examine whether such restrictions are justied under clause (2), (3) or (4) of article 19, as may be applicable. But Section 21 leaves it to the Central Government to impose restrictions on these three categories of rights without laying down any guidelines or indicating any limitations which would ensure that the restrictions imposed by the Central Government are in conformity with clause (2), (3) or (4) of article 19, whichever be applicable. It confers power on the Central Government in very wide terms by providing that the Central Government may impose restrictions on these three categories of rights to such extent and in such manner as may be necessary. The Central Government is constituted the sole judge of what restrictions are considered necessary and the Central Government may, in terms of the power conferred upon it, impose restrictions it considers necessary, even though they may not be permissible under clauses (2), (3) and (4) of article 19. The power conferred on the Central Government to impose restrictions on these three categories of rights which are part of the Fundamental Rights under clauses (a), (b) and (c) of article 19(1) is thus a broad uncanalised and unrestricted power permitting violation of the constitutional limitations. But, even so, section 21 cannot be condemned as invalid on this ground, as it is saved by article 33 which permits the enactment of such a provision. Article 33 carves out an exception in so far as the applicability of Fundamental Rights to members of the Armed Forces and the Forces charged with the maintenance of public order is concerned. It is elementary that a highly disciplined and ecient armed force is absolutely essential for the defence of the country. Defence preparedness is in fact the only sure guarantee against aggression. Every eort has therefore to be made to build up a strong and powerful army capable of guarding the frontiers of the country and protecting it from aggression. Now obviously no army can continuously maintain its state of preparedness to meet any eventuality and successfully withstand aggression and protect the sovereignty and integrity of the country unless it is at all times possessed of high morale and strict discipline. Morale and discipline are indeed the very soul of an army and no other consideration, howsoever important, can outweigh the need to strengthen the morale of the armed forces and to maintain discipline amongst them. Any relaxation in the matter of morale and discipline may prove disastrous and ultimately lead to chaos and ruination aecting the well being and imperilling the human rights of the entire people of the country. The constitution makers therefore placed the need for discipline above the fundamental rights so far as the members of the

146 Armed Forces and the Forces charged with the maintenance of public order are concerned and provided in Article 33 that Parliament may by law determine the extent to which any of the Fundamental Rights in their application to members of the Armed Forces and the Forces charged with the maintenance of public order, may be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. Article 33 on a plain grammatical construction of its language does not require that Parliament itself must by law restrict or abrogate any of the Fundamental Rights in order to attract the applicability of that Article. What it says is only this and no more, namely, that Parliament may by law determine the permissible extent to which any of the Fundamental Rights may be restricted or abrogated in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order. Parliament itself can, of course, by enacting a law restrict or abrogate any of the Fundamental Rights in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order as, in fact, it has done by enacting the Army Act, 1950, the provisions of which, according to the decisions of a Constitution Bench of this Court in Ram Swarup v. Union of India(1) are protected by article 33 even if found to aect one or more of the Fundamental Rights. But having regard to varying requirement of army discipline and the need for exibility in

Viswan v. Union Of India 1983 this sensitive area, it would be inexpedient to insist that Parliament itself should determine what particular restrictions should be imposed and on which Fundamental Rights in the interest of proper discharge of duties by the members of the Armed Forces and the Forces charged with the maintenance of public order maintenance of discipline among them. The extent of restrictions necessary to be imposed on any of the Fundamental Rights in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance of discipline among them, would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. The Constitution makers were obviously anxious that no more restrictions should be placed on the Fundamental Rights of the members of the Armed Forces and the Forces charged with the maintenance of public order than are absolutely necessary for ensuring proper discharge of their duties and the maintenance of discipline among them, and therefore they decided to introduce a certain amount of exibility in the imposition of such restrictions and by article 33, empowered Parliament to determine the permissible extent to which any of the Fundamental Rights in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order may be restricted or abrogated, so that within such per-

147 missible extent determined by Parliament, any appropriate authority authorised by Parliament may restrict or abrogate any such Fundamental Rights. Parliament was therefore within its power under article 33 to enact Section 21 laying down to what extent the Central Government may restrict the Fundamental Rights under clauses (a), (b) and (c) of article 19(1), of any person subject to the Army Act, 1950, every such person being clearly a member of the Armed Forces. The extent to which restrictions may be imposed on the Fundamental Rights under clauses (a), (b) and (c) of article 19(1) is clearly indicated in clauses (a), (b) and (c) of section 21 and the Central Government is authorised to impose restrictions on these Fundamental Rights only to the extent of the rights set out in clauses (a), (b) and (c) of section 21 and no more. The permissible extent of the restrictions which may be imposed on the Fundamental Rights under clauses (a), (b) and (c) of Article 19 (1) having been laid down in clauses (a), (b) and (c) of section 21, the Central Government is empowered to impose restrictions within such permissible limit, to such extent and in such manner as may be necessary. The guideline for determining as to which restrictions should be considered necessary by the Central Government within the permissible extent determined by Parliament is provided in article 33 itself, namely, that the restrictions should be such as are necessary for ensuring the proper discharge of their duties by the members of the Armed Forces and the maintenance of discipline among them. The Central Government has to keep this guideline before it in exercising the power of imposing restrictions under Section 21 though, it may be pointed out that once the Central Government has imposed restrictions in exercise of this power, the court will not ordinarily interefere with the decision of the Central Government that such restrictions are necessary because that is a matter left by Parliament exclusively to the Central Government which is best in a position to know what the situation demands. Section 21 must, in the circumstances, be held to be constitutionally valid as being within the power conferred under article 33. That takes us to the next question whether the Central Government was entitled to issue SROs. 329 and 330 applying certain provisions of the Army Act 1950 and the Army rules 1954 to the members of GREF. We will rst consider the question of validity of SRO 329 because if that notication has been validly issued and the provisions of section 21, subsection (4) of section 102 and section 191 of the Army Act 1950 made applicable to the members of REF, SRO 330 applying certain provisions of the Army Rules, 1954 to the members of GREF in exercise of the powers conferred under section 21, subsection(4) of section 102 and section 191 of the Army Act 1950 would be fortiori be valid. Now SRO 329 is issued by the Central Government under sub-sections (1) and (4) of section 4 of the Army Act 1950 which provide inter alia as under:

148 Sec. 4(1) The Central Government my, by notication, apply with or without modications, all or any of the provisions of this Act to any force raised and maintained in India under the authority of that Government, and suspend the operation of any other enactment for the time being applicable to the said force. (2) ... ... ... ... (3) ... ... ... ... (4) While any of the provisions of this Act apply to the said force, the Central Government may, by notication, direct by what authority any jurisdiction, powers or duties incident to the operation of these provision shall be exercised or performed in respect of the said force. The Central Government is empowered under sub-section (1) of section 4 to apply any of the provisions of the Army Act, 1950 to any force raised or maintained in India under the authority of that Government and when any such provisions of the Army Act, 1950 are applied to that force under sub-section (1), the Central Government can by notication issued under sub-section (4), direct by what authority, the jurisdiction, powers and duties incident to the operation of those provisions shall be exercised or performed in respect of that force. SRO 329 applying certain provisions of the Army Act, 1950 to the members of GREF and directing by what authority, the jurisdiction, powers and duties incident to the operation of those provisions shall be exercised or performed in respect of GREF, would therefore be within the

Viswan v. Union Of India 1983 power of the Central Government under sub-section (1) and (4) of section 4, if GREF could be said to be a force raised and maintained in India under the authority of the Central Government. The question is: what is the true meaning and scope of the expression any force raised and maintained in India under the authority of the Central Government. The word force is not dened anywhere in the Army Act, 1950. There is a definition of the expression the forces in section 3 (xi) but it does not help, because the expregsion we have to construe is force which is dierent from the forces. There is however an indication to be found in subsection (2) of section 4 which throws some light on the sense in which the word force is used in sub-section (1) of section 4. Section 4, subsection (2) clearly contemplates that the force referred to in sub-section (1) of section 4 must be a force organised on similar lines as the army with rank structure. So far as GREF is concerned, there can be no doubt that it is a force organised on army pattern with units and sub units and rank structure. Moreover, as is clear from the letter dated 16th June, 1960 addressed by the Secretary, Border Roads Development Board to the Director General Border Roads, GREF is a force raised and maintained under the 11 authority of the Central Government. The Central Government therefore had power under subsections (1) and (4) of section 4 to issue SRO 329 applying some of the provisions of the Army Act, 1950 to GREF and directing by what authority the jurisdiction powers and

149 duties incident to the operation of these provisions shall be exercised or performed in respect of GREF. But the question is, and that is the more important question to which we have to address ourselves, whether, even if GREF was a force raised and maintained under the authority of the Central Government, the Central Government could, in exercise of the powers conferred under sub-section (1) of section 4, validly-apply section 21 to the members of GREF. Section 21 empowers the Central Government to make rules restricting to such extent and in such manner as may be necessary the rights set out in clauses (2), (b) and (c) of that section and in exercise of this power, the Central Government has made rules 19 to 21 to which reference has already been made by us. Now as already pointed out above, section 21 is protected against invalidation by Article 33, since it lays down in clauses (a), (b) and (c) the possible extent to which the fundamental rights of any person subject to the Army Act, 1950 may be restricted and every person subject to the Army Act 1950 would clearly and indubitably be a member of the Armed Forces within the meaning of Article 33. But if section 21 were to be applied to persons who are not members of the Armed Forces of the forces charged with the maintenance of public order, Article 33 would not aord any protection to section 21 in so far as it applies to such persons and the application of section 21 to such persons would be unconstitutional. We must therefore proceed to consider whether the members of GREF could be said to be members of the Armed Forces within the meaning of Article 33. If they cannot be said to be members of the Armed Forces, the application of section 21 to them would not have the protection of Article 33 and would be clearly void. The history, composition, administration, organisation and role of GREF which we have described above while narrating the facts clearly show that GREF is an integral part of the Armed Forces. It is undoubtedly a departmental construction agency as contended on behalf of the petitioners but it is distinct from other construction agencies such as Central Public Works Department etc., in that it is a force intended primarily to support the army in its operational requirement. It is signicant to note that the Border Roads organisation, which is in over all control of GREF was originally created as part of Army Headquarters and it was only later, for reasons of high policy, that it was separated from Army Headquarters and placed under the Border Roads Development Board. Though the budget of the Border Roads organisation forms part of the budget of Ministry of Shipping and Transport, the nancial control is vested in the Ministry of Finance (Defence). The entire infra-structure of GREF is modelled on the pattern of the Army and it is organised into units and subunits with command and control system similar to that in the Army. The personnel of GREF right from class IV to class I have to be in uniform with distinctive badges of rank and

150 they have a rank structure equivalent to that of the Army. GREF is primarily intended to carry out defence and other works projected by the General Sta, Army Headquarters and it is only where spare capacity is available that GREF undertakes works of other ministries or departments on agency basis and there also, preference is given to strategic and other roads in sensitive areas. The funds which are provided to the Border Roads organisation are meant exclusively for carrying out the works entrusted by the General Sta, Army Headquarters and so far as the works carried out for other ministries or departments on agency basis are concerned, the funds of the Border Roads organisation are not permitted to be used for carrying out those works and they are paid for by the respective ministries or departments and where applicable, agency charges for executing the works are also collected. The statistics given in the earlier part of the judgment show that the major portion of the work executed by GREF units consists of tasks entrusted by the General Sta, Army Headquarters and only a small percentage of the work is being done on behalf of other ministries or departments. GREF units carry out essentially those tasks which are other wise carried out by Army Engineering Regiments and they provide engineering support to the Army both during peace time as also during hostilities. It was found necessary as a result of a major review carried out by Army Headquarters after 1971 that a minimum of 17 Border Road Task Forces and 34 Pioneer Compa-

Viswan v. Union Of India 1983 nies would be permanently required for providing engineering support to the Army and accordingly 17 Border Road Task Forces and 34 Pioneer Companies have been made permanent and their composition has been reorganised in accordance with the recommendations of the Army Headquarters. These 17 Border Road Task Forces and 34 Pioneer Companies are being maintained as essential units of GREF for meeting the operational requirements of the Army, even if sucient work is not available for them at any given point of time. The operational planning of the Army is in fact based on availability of these 17 Border Road Task Forces and 34 Pioneer Companies and during operations, they have to carry out tasks which would otherwise have been done by equal number of Army Engineering Regiments. It may be pointed out that these 17 Border Road Task Forces and 34 Pioneer Companies have replaced corresponding number of Army Engineering Regiments and Pioneer Companies in the Army. The tasks required to be carried out by the Border Road Task Forces have already been described in some details in the opening part of the Judgment while narrating the facts and we need not repeat the same over again. Suce it to state that these tasks are required to be carried out by the Border Road Task Forces during operations with a view to providing engineering support to the Army in its operational plans. The Border Road Task Forces have to perform these tasks and provide engineering support to the Army not only upto the border but even be-

151 yond upto the exent of advance into enemy territories. Even in peace time, the Border Road Task Forces have to undertake works projected by General Sta, Army Headquarters to meet their operational requirements and these work include construction and maintenance of roads, operational tracks, ditch-cum-bund (water obstacles on the broder), eld fortications like bunkers, re trenches and pill boxes, helipads and airelds. It is also signicant to note that the Border Road Task 1 Forces and Pioneer Companies attached to them are included in the order of Battle of the Army which implies that support of these units to the Army is guaranteed and can be requisitioned at any time The Border Road Tack Forces are also sub-allotted to lower army formations and they appear on the order of Battle of these formations. GREF units consisting of these Border Road Task Forces and Pioneer Companies are placed under the direct control of the Army during emergencies when the entire control of this Force is entrusted to the Chief of the Army Sta. Even during peace time, the Chief of the Army Sta exercises control over the discipline of the members of GREF units through the applicability of the provisions of the Army Act 1950. The Director General, Border Roads who is in over-all control of GREF units is always an army ocer of the rank of Major General and his condential reports are written by the Chief of the Army Sta. The signal communication of GREF is also integrated with the Army communication set up not only during operations but also in normal peace time. It is also a factor of vital signicance which emphasises the special character of GREF as a force intended to provide support to the Army in its operational plans and requirements that Army personnel are posted in GREF units according to a carefully planned manning policy so that GREF units can in times of war or hostilities be able to provide eective support to the Army. The tenure of oce of the Army personnel in GREF units is regarded as normal regimental duty and is equated with similar appointments in the Army for the purpose of promotion, career planning etc. Even the directly recruited personnel of GREF are given training at the GREF Centre before they are posted and the training given is in three military disciplines which we have described in detail in the opening part of the Judgment. The training includes not only drill, marching and saluting but also combat training including physical training such as standing Exercises, beam exercises. rope work, route marches etc. and combat engineering training including eld engineering, handling of service cxplosives, camouage, combat equipment, bridging, eld fortications, wire obstacles etc. Moreover, the directly recruited personnel are taken up only after they voluntarily accept the terms and conditions of employment which include inter alia conditions 5 (1v), (v). 5 (vi) and 5 (xi) which have been reproduced in full while narrating the facts. These conditions make it clear the directly recruited personnel my be required to serve anywhere in In-

152 dia and outside India and when directed, they would have to proceed on eld service and if required, they would also be liable to serve in any Defence Service or post connected with the defence of India. It is also stipulated in these conditions that on their appointment, the directly recruited personnel would have to wear the prescribed uniform while on duty and that they would be subject to the provisions of the Army Act 1950 and the Army Rules 1954 as laid down in SROs. 329 and 330 for purpuoses of discipline. It is abundantly clear from these facts and circumstances that GREF is an integral part of the Armed Forces and the members of GREF can legitimately be said to be members of the Armed Forces within the meaning of article 33. The petitioners however tried to combat this conclusion by pointing out that the services constituted under Border Roads Engineering Service Group A, Rules 1977 and the Border Roads Engineering Service Group B, Rules, 1977 both of which were made by the President in exercise of the powers conferred under article 309 and brought into force with eect from 20th September 1977, were expressly designated as Central Civil Services and that in reply to Unstarred Question No. 1100, the Minister for Defence stated on 18th June, 1980 that GREF as at present organized is a civilian construction force and similarly in reply to Unstarred Question No. 6002, the Minister of Defence observed on 1st April 1981 that the civilian employees serving with the Border Roads or-

Viswan v. Union Of India 1983 ganisation and GREF are not under administrative control of Ministry of Defence but are under the administrative control of the Border Roads Development Board and so also Minister of Defence stated on 25th February 1983 in answer to Unstarred Question No. 938 that the members of the General Reserve Engineer Force of the Border Roads organisation are civilian employees of the Central Government. The petitioners contended on the basis of these statements that GREF was not an Armed Force but was a civilian construction agency and the members of GREF could not possibly be regarded as members of the Armed Forces so as to fall within the scope and ambit of article 33. This contentions though it may appear at rst blush attractive, is in our opinion not well founded and must be rejected. It is undoubtedly true that as stated by the Minister of Defence, GREF is a civilian construction force and the members of GREF are civilian employees under the administrative control of the Border Roads Development Board and that the engineer ocers amongst hem constitute what may be designed as Central Civil Services, within GREF, but that does not mean that they cannot be at the same time form an integral part of the Armed Forces. The fact that they are described as civilian employees and they have their own special rules of recruitment and are governed by the Central Civil Service (Classication, Control and Appeal) Rules, 1965 is not determinative of The question whether they are members of the Armed Forces lt may

153 be noted that even the members of the Civil General Transport Companies constituted under Government of India, War Department, notication No. 1584 dated 29th June, 1946 as also the members of the independent Transport Platoons have been treated as members of the Armed Forces for the purpose of application of the provisions of the Army Act 1950 by SRO 122 dated 22nd July 1960 and SRO 282 dated 17th August 1960. So also when personal of Military Engineer Service have to function in operational areas under the army, they too are brought under the provisions of the Army Act 1950 for the purpose of discipline. The question whether the members of GREF can be said to be members of the Armed Forces for the purpose of attracting the applicability of article 33 must depend essentially on the character of GREF, its organisational set up, its functions, the role it is called upon to play in relation to the Armed Forces and the depth and intimacy of its connection and the extent of its integration with the Armed Forces and if judged by this creterian, they are found to be members of the Armed Forces, the mere fact that they are non-combatant civilians governed by the Central Civil Services (Classication Control and Appeal) Rules 1965, cannot make any dierence. This view which we are taking on principle nds ample support from the decision of this Court in Ous Kutilingal Achudan Nair Ors. v. Union of India & Ors.(1) where the question was whether certain employees in the Defence Establishment such as cooks, chowkidars, laskers, barbers, carpenters, mechanics, boot-makers, tailors etc. who were noncombatant civilians governed by the Civil Service Regulations for purpose of discipline, leave, pay etc. and were eligible to serve upto the age of 60 years unlike the members of the Armed Forces, could be validly called members of the Armed Forces covered by article 33, because it Was only if they were members of the Armed Forces within the meaning of that article that the restrictions imposed upon their right to form association could be sustained. This Court speaking through Sarkaria, J. held that the employees in question were members of the Armed Forces and gave the following reasons in support of its view: The members of the Unions represented by the appellants fall within this category. It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march. Although they are non-combatants and are in some matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the members of the Armed Forces within the contemplation of Article 33. Here also it is indisputable on the facts and circumstances mentioned above that the functions and duties of GREF are integrally connected with the operational plans and requirements of the Armed Forces and the members of GREF are, to use the words of Sarkaria, J. integral to the Armed Forces. There can be no doubt that with out the e-

154 cient and disciplined operational role of GREF the military operations in border areas during peace as also in times of war will be seriously hampered and a highly disciplined and ecient GREF is absolutely essential for supporting the operational plans and meeting the operational requirements of the Armed Forces. It must therefore be held that the members of GREF answer the description of members of the Armed Forces within the meaning of article 33 and consequently the application of section 21 of the Army 89 Act 1950 to the members of GREF must be held to be protected by that Article and the Fundamental Rights of the members of GREF must be held to be validly restricted by section 21 read with Rules 19 to 21 of the Army Rules 1954. If that be so, the petitioners were liable to be charged under section 63 of the Army Act 1950 for the alleged violations of Rules 19 to 21 and their convictions by Court Martial as also subsequent dismissals must be held to be valid. Before we part with this point, we may point out that an anguished complaint was made before us on behalf of the petitioners that there is considerable disparity between the Army personnel posted in GREF units and the other ocers and men of GREF in so far as the terms and conditions of service, such as, salary, allowances and rations arc concerned. It is not necessary for us to consider whether this complaint is justied; it is possible that it may not be wholly unjustied but we may point out that in any

Viswan v. Union Of India 1983 event it has no real bearing. It all on the question whether the members of GREF can be said to be members of Armed Forces. Since, the members of GREF are drawn from two dierent sources, it is possible that the terms and conditions of service of the personnel coming from the two sources may be dierent. The Army personnel posted in GREF units naturally carry their own terms and conditions of service while the other ocers and men in GREF are governed by their own distinctive terms and conditions. It is dicult to appreciate how dierences in terms and conditions of service between GREF personnel coming from two dierent streams can possibly have any impact on the character of GREF as a force integral to the Armed Forces. It is immaterial for the purpose of determining whether the members of GREF are members of the Armed Forces as to what are the terms and conditions of service of the members of GREF and whether they are identical with those of Armed personnel appointed on the same or equivalent posts in GREF units. But, we may observe that in case it is found that the terms and conditions of service of ocers and men in GREF directly recruited or taken on deputation are in any way less favourable than those of Army personnel appointed to the same or equivalent posts in GREF, the Central Government might well consider the advisability of taking steps for ensuring that the disparity, if any, between the terms and conditions of service, such as, salary, allowances, rations etc. Of Army personnel posted in GREF units and

155 other ocers and men in GREF is Lt. Col. Shergill, it is not possiremoved. ble for us to hold that the convicIt may be pointed out that a faint tions of the petitioners by the Court attempt was made on behalf of the Martial were not in accordance with petitioners to contend that their con- law. In any event, the allegations of victions by Court Martial were ille- the petitioners in this behalf raised gal since their trial was not in ac- disputed questions of fact which it cordance with law. This contention is not possible for us to try in a was strongly resisted on behalf of writ petition. We cannot in the cirthe respondents and it was positively cumstances be called upon to quash averred in the adavit of Lt. Col. and set aside the convictions of the Shergill that disciplinary action was petitioners by the Court Martial or initiated and punishment awarded by their subsequent dismissals from serthe competent disciplinary authority vice on the ground that they were not after the oences were proved in ac- in accordance with law. cordance with law and all possible help and opportunity was extended to the petitioners and others who were tried to defend themselves with the help of defending ocers of their choice or of civil lawyers. Lt. Col. Shergill stated in the clearest terms in his adavit in reply that out of 357 personnel kept under military custody, 287 have been released on the basis of their unconditional apology and those who failed to do so, have been tried by GCM/SCM summarily and awarded punishment, on the basis of the gravity of the offence proved against them. During the trial, all possible help was provided under the rules and they were allowed to meet/employ lawyers of their choice to defend the case. In all the cases, defending ocers as per their choices have also been detailed from departmental side. The trials were held strictly in accordance with the procedure laid down in the rules, and there is no denial of natural justice. Having regard to this positive statement made on oath by There was also one other contention advanced on behalf of the petitioners and it raised a question of violation of Article 14 of the Constitution. The contention was that the members of GREF were governed both by the Central Civil Services (Classication, Control and Appeal) Rules 1965 and the provisions of the Army Act 1950 and the Army Rules 1954 in matters of discipline and therefore whenever a member of GREF was charged with misconduct amounting to an oence under the Army Act 1950, it was left to the unguided and unfettered discretion of the authorities whether to proceed against the employee under the Central Civil Services (Classication, Control and Appeal) Rules 1965 or under the Army Act 1950 and the Army Rules 1954 and SROs. 329 and 330 applying the provisions of the Army Act, 1950 and the Army Rules 1954 to members of GREF for purposes of discipline were therefore discriminatory and violative of Article 14. We do not think there is

156 any substance in this contention. In the rst place, the nature of the proceedings which may be taken under the Central Civil Services (Classication, Control and Appeal) Rules 1965 against an erring employee is dierent from the nature of the proceedings which may be taken against him under the provisions of the Army Act 1950 read with the Army Rules 1954, the former being disciplinary in character while the latter being clearly penal. It is signicant to note that Section 20 of the Army Act 1950 which deals with dismissal, removal or reduction of any person subject to that Act and clauses (d), (e), (f), (g) and (k) of Section 71 which provide for punishment of cashiering, dismissal, reduction in rank forfeiture of seniority and forfeiture of pay and allowances, have not been made applicable to the members of GREF by SRO 329 with the result that, so far as disciplinary proceeding are concerned, there is no overlapping between the provisions of the Central Civil Services (Classication, Control and Appeal) Rules 1965 and the provisions of the Army Act 1950 and the Army Rules 1954 as applied to the members of GREF. Secondly, it is not possible to say that the discretion vested in the authorities whether to take action against an erring member of GREF under Central Civil Services (Classication Control and Appeal) Rules 1965 or under the Army Act 1950 and the Army Rules 1954 is unguided or uncanalised. It has been denied in the adavit of Lt. Col. Shergill that unguided discretion any power is vested in the disciplinary author-

Viswan v. Union Of India 1983 ity to proceed against an employee of GREF either under the Central Civil Services (Classication, Control and Appeal) Rules 1965 or the Army Act 1950 and the Army Rules 1954 or to switch over from one proceeding to the other at the any stage. Lt. Col. Shergill has stated positively in his adavit that clear and detailed administrative guidelines have been laid down for the purpose of guiding the disciplinary authority in exercising its discretion whether to take action against an employee of GREF under the Central Civil Services (Classication, Control and appeal) Rules 1965 of the Army Act 1950 and the Army Rules 1954 and these guidelines have been set out in full in Annexure R-5 to his adavit. Thirdly, the decision in Northern India Caterers Ltd. v. Punjab(1) on which the contention of the petitioners is based has been over-ruled by this Court in Maganlal Chhaganla v. Municipal Corporation, Greater Bombay(2) where it has been held that the contention that the mere availability of two procedures will vitiate one of them, that is, the special procedure is not supported by reason or authority. And lastly, it may be noted that in any event the provisions of the Army Act 1950 and the Army Rules 1954 as applied to the members of GREF are protected by Article 33 against invalidation on the ground of violation of Article 14. The present contention urged on behalf of the petitioners must also therefore be rejected. We may make it clear it is only in regard to the members of GREF that

157 we have taken the view that they are members of the Armed Forces within the meaning of Article 33. So far as casual labour employed by GREF is concerned, we do not wish to express any opinion on this question whether they too are members of the Armed Forces or not, since that is not a question which arises for consideration before us. The writ petitions are accordingly dismissed with no order as to costs. The special leave petitions will also stand rejected. H.L.C. Petitions dismissed.

158

Viswan v. Union Of India 1983

Chapter 10

Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985

1985 SCC (2) 412 1985 SCALE Chief Of The Army Sta And Others v. Major Dharam Pal (1)582 Kukrety on 21 March, 1985 EquivACT: alent citations: 1985 AIR 703, 1985 Constitution of India Article 226SCR (3) 415 Author: B P Narain Maintainability of writ petition at Bench: Madon, D.P. the stage of show cause notice to PETITIONER: terminate the services of a service CHIEF OF THE ARMY STAFF personnel by the Chief of the Army sta when the nding of a court AND OTHERS martial even on revision is perverse v. or against the weight of evidence RESPONDENT: on record-Army Act, 1950 sections MAJOR DHARAM PAL 18 to 24, 108, 121, 127, 153, 154, KUKRETY 160(1), 191 and the Army Rules 1954 Rules 14 and 68 to 71, scope ofDATE OF JUDGMENT21/03/1985 Competency of the Chief of the Army BENCH: Sta to have recourse to Rule 14 MADON, D.P. of the Army Rules, when the genBENCH: eral court martial originally and on revision returned a verdict of Not MADON, D.P. guilty -Principle of double jeopCHANDRACHUD, Y.V. ((CJ) ardy Aufrefois Acquit applicabilityMISRA RANGNATH Constitution of India Article 20(2) CITATION: read with Army Act, section 121. 1985 AIR 703 1985 SCR (3) 415 HEADNOTE:

160

Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985 of the Army Sta under Rule 14 of the Army Rules 1954 issued the impugned show cause notice dated November 12, 1976 stating that the Chief of the Army Sta had carefully considered the facts of the case as also the respondents defence at the trial and being satised that a fresh trial by a court martial for the said oences was inexpedient, he was of the opinion that the respondents misconduct as disclosed in the proceedings rendered his further retention in the service undesirable. and called upon the respondent to submit his explanation and defence, if any, within twenty-ve days of the receipt of the said notice. Along with the said notice copies of abstracts of evidence and the court martial proceedings were forwarded to the respondent. The respondent, thereupon, led in the High Court of Allahabad a writ petition under Article 226 of the Constitution of India being Civil Miscellaneous Writ No. 84 of 1976, which was allowed by a Division Bench of the said High Court. Hence the appeal by special leave Allowing the appeal, the Court HELD: 1. Where the threat of a prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the Courts protection. If, on the other hand, the Chief of the Army Sta had the power in law to issue the said notice, it would not be open to the respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ peti-

The respondent, a permanent commissioned ocer of the Indian Army holding the substantive rank of captain and the acting rank of major, as a result of certain incidents which are alleged to have taken place on November 5 and 6, 1975 was ordered to be tried by a general court martial. On March 13, 1976, the court martial announced its nding subject to conrmation, the nding being Not guilty of all the charges. The General Ocer Commanding, Madhya Pradesh, Bihar and Orissa Area, the third appellant, who was the conrming authority, did not conrm the verdict and by his order dated April 3, 1976, sent back the nding for revision. The same general court martial, therefore, reassembled on April 14, 1976, and after hearing both sides and taking into consideration the observations made by the third appellant in his said order dated April 3, 1976, adhered to its original view and once again announced the nding subject to conrmation, that the respondent was Not guilty of all the charges. The third appellant reserved conrmation of the nding on revision by a superior authority, namely, the General Ocer, Commanding- in-Chief, Central Command, Lucknow, the second appellant, and forwarded the papers to him. By his order dated May 25, 1976, the second appellant did not conrm the nding on revision of the general court martial. The charges made against the respondent, the nding and the nonconrmation thereof were promulgated as required by Rule 71 of the Army Rules. Thereafter, the Chief

161 tion could be said to be premature. This was, however, not a contention which could have been decided at the threshold until the court had come to a nding with respect to the jurisdiction of the Chief of the Army Sta to issue the impugned notice. Having held that the impugned notice was issued without any jurisdiction, the High Court was right in further holding that the respondents writ petition was not premature and was maintainable. [420C-E] 2. Whether the Chief of the Army Sta was competent to issue the impugned notice of show cause depends upon the relevant provisions of the Army Act 1950 and the Army Rules 1954. Under Section 153 of the Army Act, no nding or sentence of a general, district or summary general, court martial shall be valid except so far as it may be conrmed as provided by the Army Act. Under Section ]60 of the Army Act, the conrming authority has the power to direct a revision of the nding of a court martial only once. There is no power in the conrming authority, if it does not agree with the nding on revision, to direct a second revision of such nding. In the absence of any such conrmation, whether of the original nding or of the nding on revision, by reason of the provisions of Section 153 the nding is not valid. Therefore, in the case of the respondent, the nding of the general court martial on revision not having been conrmed was not valid. Equally, there is however, no express provision in the Army Act which empowers the holding of a fresh court martial when the nding of a court martial on revision is not conrmed. [427C-F] 3. Though it is open to the Central Government or the Chief of the Army Sta to have recourse to Rule 14 of the rst instance without directing trial by a court martial of the concerned ocer, there is no provision in the Army Act or in Rule 14 or any of the other Rules of the Army Rules which prohibits the Central Government or the Chief of the Army Sta from resorting in such a case to Rule 14. [429F-G] In the present case, the Chief of the Army Sta had, on the one hand, the nding of a general court martial which had not been conrmed and the Chief of the Army Sta was of the opinion that the further retention of the respondent in the service was undesirable and, on the other hand, there were three dierence conicting decisions of dierent High Courts on this point which point was not concluded by a denitive pronouncement of this Court. In such circumstances, to order a fresh trial by a court martial could certainly be said to be both inexpedient and impracticable and the only expedient and practicable course, therefore, open to the Chief of the Army Sta would be to take action against the respondent under Rule 14, which he did. The action of the Chief of the Army Sta in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarranted in law. [430B-D] Capt. Kashmir Singh Shergill v. The Union of India & Another, Civil Writ No. 553 of 1974 decided on November

162

Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985

6, 1974 by Prakash Narain, J., ap- he was posted in the Army School proved. of Mechanical Transport, Faizabad. G.B. Singh v. Union of India and As a result of certain incidents which Others, [1973] Crl. L.J. 485; Major are alleged to have taken place on Manohar Lal v. The Union of In- November 6 and 7, 1975, the Redia and Anr., 1971 (1) S.L.R. 717; spondent was tried by a general court J.C. 13018 Subedar Surat Singh v. martial on four charges. It is unThe Chief Engineer Projects (Bea- necessary to reproduce the charges con) C/o.56 A.P.O. AIR 1970 J. & made against the Respondent. The charge-sheet was dated January 20, K 179 referred to. 1976, and was issued by the ComJUDGMENT: mandant, Ordinance Depot, Fort AlCIVIL APPELLATE JURIS- lahabad. On January 24, 1976, the DICTION: Civil Appeal No. 663 Respondent was ordered to be tried of 1978. by a general court martial. The ReFrom the Judgment and Order spondent pleaded not guilty and his dt. 9.3.77 of the Allahabad High trial took place at Lucknow before Court in Civil Misc. Writ No. 84/77. a general court martial consisting of Dr. Anand Prakash, V.B.. Sa- one Brigadier, two Majors and two haraya and Miss A. Subhashini, for Captains Both the prosecution and the Respondent led evidence. On P the Appellants March 13, 1976, the court martial anH. S. Parihar, for the Responnounced its nding subject to conrdent. mation, the nding being Not guilty The judgment of the Court was of all the charges. The General Odelivered by MADON,J. This Ap- cer, Commanding Madhya Pradesh, peal by Special Leave granted by this Bihar and Orissa Area, the Third Court is preferred against the judg- Appellant, who was the conrming ment and order of a Division Bench authority, did not conrm the verof the Allahabad High Court allow- dict and by his order dated April 3, ing the writ petition led by the Re- 1976, sent back the nding for revispondent under Article 226 of the sion. The same general court marConstitution of India and quashing tial, therefore, re assembled on April a show cause notice dated Novem- 14, 1976, and after hearing both sides ber 12,1976 issued by the First Ap- and taking into consideration the obpellant, the Chief of the Army Sta, servations made by the Third Appelunder Rule 14 of the Army Rules. lant in his said order dated April 3, 1954. The facts which have given 1976, adhered to its original view and rise to this Appeal lie in a narrow once again announced the nding compass. The Respondent is a per- that the Respondent was Not guilty manent commissioned ocer of the of all the charges. The said ndIndian Army holding the substan- ing was also expressly announced as tive rank of Captain and the acting being subject to conrmation. The rank of Major. In November 1975, Third Appellant reserved conrma-

163 tion of the nding on revision by a superior authority, namely, the General Ocer, Commanding in-Chief, Central Command, Lucknow, the Second Appellant, and forwarded the papers to him. By his order dated May 25, 1976, the Second Appellant did not conrm the nding on revision of the general court martial. The charges made against The Respondent, the nding and the nonconrmation thereof were promulgated as required by Rule 71 of the Army Rules. Thereafter the Chief of the Army Sta under Rule 14 of the Army Rules issued the impugned show cause notice dated November 12, 1976. It was stated in the said notice that the Chief of the Army Sta had carefully considered the facts of the case as also the Respondents defence at the trial and being satised that a fresh trial by a court martial for the said oences was inexpedient, he was of the opinion that the Respondents misconduct as disclosed in the proceedings rendered his further retention in the service undesirable. The Respondent was called upon by the said notice to submit his explanation and defence, if any, within twentyve days of the receipt of the said notice. Along with the said notice copies of abstracts of evidence and the court martial proceedings were forwarded to the Respondent. The Respondent thereupon led in the High Court of Allahabad a writ petition under Article 226 of the Constitution of India being Civil Miscellaneous Writ No. 84 of 1976, which, as aforesaid, was allowed. It was the contention of the Respondent in his writ petition that under the Army Act, 1950 (Act No. 46 of 1950), and the Army rules there was an initial option either to have the concerned ocer tried by a court martial or to take action against him under Rule 14 and that in his case the option having been exercised to try him by a court martial, the Chief of the Army Sta was not competent to have recourse to Rule 14 after the Respondent was - acquitted both at the time of the original trial and on revision. This contention found favour with the High Court. The High Court held that as the Respondent had in fact been tried by a court martial which both at the time of the original trial and on revision had returned a verdict of not guilty, it could not be said that it was inexpedient to try the Respondent by a court martial and, therefore, the impugned notice under Rule 14 was issued without any jurisdiction. At the hearing of the said writ petition a preliminary objection was raised by the Appellants that the said writ petition was not maintainable as being premature. The High Court held that as the impugned notice was issued without jurisdiction, it would be exposing the Respondent to jeopardy to require him to submit his reply to the said notice and to wait until his services were terminated. The same contentions, as were raised before the High Court, were taken before us at the hearing of this Appeal. We will rst deal with the Appellants preliminary objection that the Respondents writ petition was not maintainable as being prema-

164

Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985 Chief of the Army Sta to issue the impugned notice. Having held that the impugned notice was issued without any jurisdiction, the High Court was right in further holding that the Respondents writ petition was not premature and was maintainable. Before considering the rival contentions with respect to the validity of the impugned notice, we may mention that a learned Single Judge of the Delhi High Court has held in the case of Capt. Kashmir Singh Shergill v. The Union of India and another (1) that the Chief of the Army Sta was competent to issue a show cause notice under Rule 14 even though the court martial had armed its verdict on revision. The answer to the question whether the Chief of the Army Sta was competent to issue the impugned notice depends upon the relevant provisions of the Army Act and the Army Rules to which we now turn. Chapter IV of the Army Act, which consists of Section 18 to 24, deals with the conditions of service of persons appointed under (1) Civil Writ No. 553 of 1974 decided on November 6, 1974 by Prakash Narain, J. the Act. Section 18 provides that every person subject to the Army . Act shall hold oce during the pleasure of the President. Section 19 provides that subject to the provisions of the Army Act and the rules and regulations made thereunder, the Central Government may dismiss, or remove from the service, any person subject to the Army Act. Section 22 provides that any person

ture. It was the Respondents case that the Chief of the Army Sta had no jurisdiction to issue the impugned show cause notice after he had been again found not guilty by the court martial on revision. The said notice expressly stated that the Chief of the Army Sta was of the opinion that the Respondents misconduct as disclosed in the proceedings rendered his further retention in service undesirable and asked him to submit his explanation and defence, if any, to the charges made against him. If the Respondents contention with respect to the jurisdiction of the Chief of the Army Sta to issue the said notice were correct, the Respondent was certainly exposed to the jeopardy of having his explanation and defence rejected and he being removed or dismissed from services. Were the said notice issued without jurisdiction, the Respondent would have then suered a grave, prejudicial injury by an act which was without jurisdiction. Where the threat of a prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the Courts protection. If, on the other hand, the Chief of the Army Sta had the power in law to issue the said notice, it would not be open to the Respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to be premature. This was, however, not a contention which could have been decided at the threshold until the court had come to a nding with respect to the jurisdiction of the

165 subject to the Army Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed by rules made under the Act. Section 191 confers upon the Central Government the power to make rules for the purpose of carrying into eect the provisions of the Army Act. Rule 14 of the Army Rules, 1954, provides as follows: 14. Termination of service by the Central Government on account of misconduct(1) When it is proposed to terminate the service of an ocer under Section 19 on account of misconduct, he shall be given an opportunity to show cause in the manner specied in sub-rule (2) against such action: Provided that this sub-rule shall not apply: (a) where the service is terminated on the ground of conduct which has led to his conviction by a criminal court; or (b) where the Central Government is satised that for reasons to be recorded in writing, it is not expedient or reasonably practicable to give to the ocer an opportunity of showing cause. (2) When after considering the reports of an ocers misconduct, the Central Government or the Chief of the Army Sta is satised that the trial of the ocer by court martial is inexpedient or impracticable, but is of the opinion that the further retention of the said ofcer in the service is undesirable the Chief of the Army Sta shall so inform the ocer together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence: Provided that the Chief of the Army Sta may withhold from disclosure any such report or portion thereof, in his opinion, its disclosure is not in the interest of the security of the State. In the event of the explanation of the ocer being considered unsatisfactory by the Chief the Army Sta, or when so directed by the Central Government, the case shall be submitted to the Central Government with the ocers defence and the recommendation of the Chief of the Army Stas to the termination of the ocers service in the manner specied in sub-rule (4). (3) Where, upon the conviction of an ocer by a criminal court, the Central Government or the Chief of the Army sta considers that the conduct of the ocer which has led to his conviction renders his further retention in service undesirable, a certied copy of the judgment of the criminal court convicting him shall be submitted to the Central Government with the recommendation of the Chief of the Army Sta as to the termination of the ocers n service in the manner specied in sub-rule (4). (4) When submitting a case to the Central Government under the provisions of sub-rule (2) or sub-rule (3), the Chief of the Army Sta shall make his recommendation whether the ocers service should be terminated, and if so, whether the ocer should be(a) dismissed from the service; or

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Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985 Respondent by a court martial was inexpedient or impracticable as in fact the Respondent had been tried by a court martial. It was also submitted that on a true construction of Rule 14, the Central Government or the Chief of the Army Sta has an initial option to have the ocer tried by a court martial or to take action against him under Rule 14 and if it were decided that he should be tried by a court martial, then action under Rule 14 was not permissible in case of his acquittal by the court martial. To test the correctness of these submissions, we must examine the provisions of the Army Act relating to court martial. Section 108 provides for four kinds of courts- martial, namely. (1) general courts martial; (2) district courts martial; (3) summary general courts martial; and (4) summary courts martial.

(b) removed from the service; or (c) called upon to retire; or (d) called upon to resign. (5) The Central Government after considering the reports and the ocers defence, if any, or the judgment of the criminal court, as the case may be, and the recommendation of the Chief of the Army Sta, may dismiss or remove the ocer with or with out pension or call upon him to retire or resign, and on his refusing to do so, the ocer may be compulsorily retired or removed from the service on pension or gratuity, if any, admissible to him. We are not concerned in this Appeal with a case where an ocer has been convicted by a criminal court or with a case where the Central Government is satised that it is not expedient or reasonably practicable to give to the ocer an opportunity of showing cause.A show cause notice was in fact issued to the Respondent by the Chief of the Army Sta. Under sub-rule (2) of Rule 14, the foundation of the jurisdiction of the Central B, Government or the Chief of the Army Sta to issue a show cause notice is the satisfaction of the Central Government or the Chief of the Army Sta after considering the reports of an ocers misconduct that the trial OF the ocer by a court martial is inexpedient or impracticable and the opinion formed that the further retention of the ocer in the service is undesirable.

As the Respondent was tried by a general court martial, we are not concerned here with any other type of courts- martial, Under section 109, a general court martial may be convened by the Central Government or the Chief of the Army Sta or by any ocer empowered in that behalf by warrant of the Chief of the Army Sta. Section 113 provides that a general court martial shall consist of not less than ve ocers, each of whom has held a commission for not less than three whole The contention before us was years and of whom not less than four that in the circumstances of this case are of a rank not below that of capit cannot be said that the trial of the tain. Section 117 provides for cases

167 in which a court martial can be disThe Respondent was neither solved. These cases are: tried by a criminal court nor dealt (1) Where after the commence- with under any of the sections 80, 83, ment of a trial the court martial is 84 and 85, most of which do not apreduced below the minimum number ply to an ocer of his rank- He was, of ocers required by the Army Act. however, tried by a general court In such a case the dissolution of the martial which found him not guilty of court martial is mandatory. (2) If, any of the charges made against him. on account of the illness of the judge- Under section 125, where a criminal advocate or of the accused before the court and a court martial both have nding, it is impossible to continue jurisdiction in respect of an oence, the trial. In this case also the disso- it is in the discretion of the ocer lution of the court martial is manda- commanding the army, army crops, division or independent brigade in tory. which the accused person is serving (3) If it appears to the ocer who or such other ocer as may be preconvened a court martial that miliscribed by the Army Rules to decide tary exigencies or the necessities of before which court the proceedings discipline render it impossible or inshall be instituted. Under section expedient to continue the court mar127, a person convicted or acquitted tial. In this case, the dissolution of by a court martial may, with the prethe court martial is discretionary. vious sanction of the Central GovSub-section (4) of section 117 ex- ernment, be tried again by a crimipressly provides that where a court nal court for the same oence or on martial is dissolved, the accused may the same facts. There is, however, be tried again. Section 118 con- no provision for the trial by a court fers upon a general court martial the martial for the same oence or on the power to try any person subject to same facts where a person has been the Army Act for any oence pun- convicted or acquitted by a criminal ishable thereunder and to pass any court. Sections 153, 154 and 160(1) sentence authorized thereby. provide as follows: Section 121 provides as follows: 153. Finding and sentence not valid, unless conrmed.121. Prohibition of second trial.No nding or sentence of a genWhen any person subject to this eral, district or summary general, Act has been acquitted or convicted court martial shall be valid except so of an oence by a court martial or far as it may be conrmed as proby a criminal court, or has been dealt vided by this Act. with under any of the sections 80, 83, 154. Power to conrm nd84 and 85, he shall not be liable to be ing and sentence of general court tried again for the same oence by a martial.court martial or dealt with under the The ndings and sentences of said sections.

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Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985 any, shall at once be transmitted for conrmation. 69. Review of court martial proceedings.- The proceedings of a general court martial shall be submitted by 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 conrming ocer. The proceedings of a district court martial shall be sent by the presiding ofcer or the judge- advocate direct to the conrming ocer 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 conrmation. 70. ConrmationUpon receiving the proceedings of a general or district court martial, the conrming authority may conrm or refuse conrmation, or reserve conrmation for superior authority, and the conrmation, nonconrmation, or reservation shall be entered in and form part of the proceedings. 71. Promulgation-The charge, nding, and sentence, and any recommendation to mercy shall, together with the conrmation or non-conrmation of the proceedings, be promulgated in such manner as the conrming authority may direct; and if no direction is given, according to the custom of the service. Until promulgation has been eected, conrmation is not complete and the nding and sentence shall not be held to have been conrmed until they have been promulgated.

general courts martial may be conrmed by the Central Government, or by any ocer empowered in this behalf by warrant of the Central Government. 160. sentence,Revision of nding or

(1) Any nding or sentence of a court martial which requires conrmation may be once revised by order of the conrming authority and on such revision, the court, if so directed by the Conrming authority, may take additional evidence. In this connection it will also be relevant to set out the provisions of Rules 68, 69, 70 and 11 of the Army Rules. These Rules provide as follows: 68. Revision. (1) Where the nding is sent back for revision under section 160, the Court shall reassemble in open court, the revision order shall be read, and if the court is directed to take fresh evidence, such evidence shall also be taken in open court. The court shall then deliberate on its nding - in closed court. (2) Where the nding is sent back for revision and the court does not adhere to its former nding, it shall revoke the nding and sentence, and record the new nding, and if such new nding involves a sentence, pass sentence afresh.

(3) Where the sentence alone is sent back for revision, the court shall not revise the nding. (4) After the revision, the presiding ocer shall date and y sign the decision of the court, and the proceedings, upon beIt is pertinent to note that under ing signed by the judge- advocate, if Section 160 the conrming authority

169 has the power to direct a revision of the nding of a court martial only once. There is no power in the conrming authority, if it does not agree with the nding on revision, to direct a second revision of such nding. In the absence of any such conrmation, whether of the original nding or of the nding on revision, by reason of the provisions of section l 53 the nding is not valid. Therefore, in the case of the Respondent, the nding of the general court martial on revision not having been conrmed was not valid. Could he, therefore, be tried again by another court martial on the same charges ? Under Section 121, a person subject to the Army Act, who has been acquitted or convicted of an oence by a court martial or by a criminal Court, is not liable to be tried again for the same oence by a court martial. It can well be argued that by reason of the provisions of section 153 under which no nding or sentence of a general, district or summary general court martial is valid except in so far as it is conrmed as provided by the Army Act a person cannot be said to have been acquitted or convicted by a court martial until the nding of guilty or not guilty in his case has been conrmed by the conrming authority. There is, however, no express provision in the Army Act which empowers the holding of a fresh court martial when the nding of a court martial on revision is not conrmed. The decisions of three High Courts may be referred to in this connection. The rst decision is that of Allahabad High Court in G.B. Singh v. Union of India and Others. (1) That was a case under the Air Force Act, 1950 (Act No. 45 of 1950). In that case, the ocer was found guilty by a general court martial and sentenced ,. to be dismissed from service. The nding and sentence was referred to the conrming authority. The conrming authority passed an order reserving the same for conrmation by superior authority and forwarded the proceedings to the Chief Of the Air Sta. The Chief of the Air sta passed an order not conrming the nding or sentence awarded by the court martial. The nding and sentence which were not conrmed by the Chief of Air Sta were promulgated after the lapse of about ten months.A fresh general court martial was convened to retry the oce. On enquiry the ocer was informed that the ndings and sentence of the general court martial had not been conrmed as it was found that the proceedings were not in order and, therefore, there was no valid order convicting or acquitting the ocer. After considering the relevant provisions of the Air Force Act and the Air Force Rules, 1969, which are in pari materia with the corresponding provisions of the Army Act and the Army Rules, a learned Single Judge of the Allahabad High Court held that the eect of non-conrmation was that though the nding and sentence passed by the court martial existed, they could not be put into effect unless they had been conrmed under the provisions of the Air Force Act, and that in such a case section 120 of the Air Force Act (which is in pari materia with section 121 of the Army Act) barred a second trial by

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Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985 The Chief Engineer Projects (Beacon). Co. 56 A.P.O. (1).A Division Bench of the Jammu and Kashmir High Court held that though every nding of a general court martial, whether of acquittal or of guilt, cannot be recorded as valid unless it is conrmed by the competent authority, the Legislature could not have reasonably intended that an ocer convening a general court martial can go on dissolving such court martials and reconstituting them ad innitum until he obtained a verdict or a nding of his own liking. The Division Bench further held that such a position would not only be against public policy and the ancient maxim nemo debet bis vexari pro una et eadem causa (no man ought to be twice vexed for one and the same cause) but would also reduce the provisions of the Army Act to a mockery and give an appearance of mala des. According to the Jammu and Kashmir High Court, in such a case the proper course for the conrming authority would be to refer the case to its superior authority for conrmation. This being the position, what then is the course open to the Central Government or the Chief of the Army Sta when the nding of a court martial even on revision is perverse or against the weight of evidence on record? The High Court in its judgment under appeal has also held that in such a case a fresh trial by another court martial is not permissible. The crucial question, therefore, is whether the Central Government or the Chief of the Army Sta can have resort to Rule 14 of the

a court martial. In Major Manohar Lal v. The Union of India and Anr. (1) the petitioner was tried by a general court martial which found him not guilty. The General Ocer Commanding-in-Chief held the proceedings to be null and void on the ground that one of the members of the court martial was of the rank of Captain and was thus lower in the rank to the petitioner and no certicate had been recorded by the ofcer convening the court martial as required by Rule 40(2) of the Army Rules, that an ocer of the rank of the petitioner was not available and he, therefore, ordered a retrial.A learned Single Judge of the Punjab and Haryana High Court held that under the Army Act and the Army Rules, a Captain was eligible to be made a member of a general court martial and the mere fact that the convening ocer did not append the certicate that an ocer of the rank of the petitioner was not available did not make the constitution of the general court martial invalid or the nding given by it to be without jurisdiction or the proceedings of the trial before it to be null and void. He further held that as the petitioner had no say in the constitution of the general court martial and had suered the trial before it, the proceedings could not have been declared null and void on a highly technical ground. The learned Single Judge, therefore. came to the conclusion that the second trial of the petitioner was without jurisdiction and the sentence imposed upon him in consequence of that trial was wholly illegal. In J.C. 13018 Subedar Surat Singh v.

171 Army Rules. Though it is open to the Central Government of the Chief of the Army Sta to have recourse to that Rule in the rst instance without directing trial by a court martial of the concerned ocer, there is no provision in the Army Act or in Rule l 4 or any of the other rules of the Army Rules which prohibits the Central Government or the Chief of the Army Sta from resorting in such a case to Rule 14. Can it, however, be said that in such a case a trial by a court martial is inexpedient or impracticable? The Shorter Oxford English Dictionary, Third Edition, denes the word inexpedient as meaning not expedient; disadvantageous in the circumstances, unadvisable, impolitic. The same dictionary denes expedient inter alia as meaning advantageous; t, proper, or suitable to the circumstances o the case. Websters Third New International Dictionary also (1) A.I.R. 1970 J. & K, 179. denes the term expedient inter alia as meaning characterized by suitability, practicality, and eciency in achieving a particular end: t, proper, or advantageous under the circumstances. tive pronouncement of this Court. In such circumstances, to order a fresh trial by a court martial could certainly be said to be both inexpedient and impracticable and the only expedient and practicable course, therefore, open to the Chief of the Army Sta would be to take action against the Respondent under Rule 14, which he did. The action of the Chief of the Army Sta in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarraned in law. In the result, this Appeal must succeed and is accordingly allowed and the judgment of the Division Beach of the Allahabad High Court under Appeal is reversed and the order passed by it is set aside. The writ petition led by the Respondent in the Allahabad High Court, namely, Civil Miscellaneous Writ No. 84 of 1977, is hereby dismissed. Before parting with this Appeal, we would like to observe that the alleged incidents in respect of which the Respondent was tried before the general court martial took place nearly ten years ago. We, therefore, feel that the Chief of the Army Sta should take into account the conduct and behaviour of the Respondent during the intervening period and if they have been in conformity with good order and military discipline and the high traditions of the Indian Army, he may consider the desirability of proceeding further in the matter.

In the present case, the Chief of the Army Sta. had, on the one hand, the nding of a general court martial which had not been conrmed and the Chief of the Army Sta was of the opinion that the further retention of the Respondent in the service was undesirable and, on In the circumstances of the Case, the other hand, there were the above there Will be no order as to costs three High Court decisions and the throughout. point was not concluded by a deniS. R. Appeal allowed,

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Chief of The Army Sta v. Maj Dharam Pal Kukrety 1985

Chapter 11

Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy Choudhury 1986

Supdt. & Remembrancer Of Legal ... v. Usha Ranjan Roy Choudhury & Anr on 21 May, 1986 Equivalent citations: 1986 AIR 1655, 1986 SCR (3) 113 Bench: Thakkar, M.P. 1986 AIR 1655 1986 SCR (3) 113 1986 SCC Supl. 190 JT 1986 363 1986 SCALE (1)931 ACT:

Criminal Courts and Court Martial (Adjustment of Jurisdiction) PETITIONER: Rules, 1952, Rules 3 and 4-Oences SUPDT. & REMEMBRANCER falling within purview of section 52 of OF LEGAL AFFAIRS, WEST BEN- Army Act, 1950-Trial by MagistrateProcedure to be followed-Special GAL Judge, whether deemed to be a Magv. istrate. RESPONDENT: Criminal Law (Amendment) Act, USHA RANJAN ROY CHOUD1952. Section 8(3A). Special JudgeHURY & ANR. Whether deemed to be a Magistrate DATE OF JUDGMENT21/05/1986 Trial of oences under section 52 for of the Army Act, 1950. BENCH: THAKKAR, M.P. (J) BENCH: HEADNOTE: The three respondents-accused were charged with oences which fell THAKKAR, M.P. (J) within the scope of section 52 of ERADI, V. BALAKRISHNA (J) the Army Act of 1950. The ordiCITATION: nary criminal court and the Court Martial both had concurrent jurisdic-

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Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy Choudhury 1986 accused to a fresh trial after following the procedure prescribed by the Rules. [125D-F] 2.1 In order to avoid any conict of jurisdiction between the criminal court and the court martial in regard to oenders who are charged with having committed oences which fall under the purview of Section 52 of the Army Act, 1950, Section 549(1) of Cr.P.C. provides that Central Government may make Rules consistent with Cr.P.C. and the Army Act. In pursuance of this provision contained in Section 549(1), Cr.P.C., the Central Government has framed Rules known as Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1952. [117H; 118A-B] 2.2 Rule 3 of the Rules requires that when a person subject to military, Naval or Air Force law is brought before a Magistrate on accusation of an oence for which he is liable to be tried by Court Martial also, the magistrate shall not proceed with the case unless he is requested to do so by the appropriate military authority. A combined reading of rules 3 and 4 shows that in case the Magistrate is of the opinion that he should proceed with the case without there being any such request from the appropriate military authority, the concerned Magistrate is enjoined to give notice to the commanding ocer in this behalf. Till the expiry of seven days from the service of such notice on the commanding ocer, the Magistrate is prohibited from making any order of conviction or acquittal or framing any charges or committing the accused. Therefore, the

tion to try the said oences. They were tried by the Judge presiding over the Fourth Addl. Special Court, Calcutta. The learned Trial Judge, while convicting one of the respondents and acquitting the remaining two, failed to follow the procedure prescribed by the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 framed under Section 549(1) of the Code of Criminal Procedure of 1898. The High Court, in appeal, took the view that the learned Judge presiding over the Special Court had acted without jurisdiction in taking cognizance of the case and proceeding with the trial of three Army ocers resulting in the conviction of one of them, and the acquittal of the remaining two and quashed the proceedings. Dismissing the appeals, by the State, HELD: 1. The High Court was right in allowing the appeal of the ofcer who was convicted and dismissing the appeal of the State calling into question the acquittal of the remaining two. However, the acquittal rendered by the High Court is on the ground of lack of jurisdiction on the part of the learned Special Judge who tried the case in the Special Court and not on merits. The expression acquitted has been employed by the High Court though it was sucient to say no more than this, that the order of conviction and sentence was without jurisdiction and was therefore being quashed. In the eye of law, it is not an acquittal since it is not on merits. It is, therefore, for the competent authority to decide whether or not to subject the

175 ordinary criminal court would have no jurisdiction to take cognizance of the case and to try the accused in a matter where the procedure prescribed by the Rules has not been complied with. The initial lack of jurisdiction to take cognizance and try the case would, of logical necessity, vitiate the trial and the order of conviction and sentence would be liable to be quashed as a result thereof. [118B-F] In the instant case, admittedly the procedure prescribed by the Rules was not followed. Under the circumstances it is futile to contend that the Army authorities had voluntarily abandoned their option to try the accused person in the court martial. There is no substance in the plea and it has been rightly repelled by the High Court.[123D-E] Delhi Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya. [1973] (1)SCR 1010 relied upon. Major E.G. Barsay v. The State of Bombay [1962] (2) SCR 195 referred. 3.1 Section 13 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 in terms accords recognition to the applicability of the Criminal Law (Amendment) Act of 1952 enacted by the Parliament except and save some of the sections, namely, sections 6,7,8,9 and 10 thereof which, as provided in Section 13, shall not apply and shall be never deemed to have applied to West Bengal. It is implicit in Section 13 of the West Bengal Act that the Central Act, namely, Criminal Law (Amendment) Act of 1952 is applicable to the State of West Bengal except and save the aforesaid ve sections. There can be no doubt or debate about this position having regard to the fact that criminal law is a subject which falls under the concurrent list and the Criminal Law (Amendment) Act of 1952 enacted by the Parliament is applicable subject to inconsistency, if any, between the said Act and the West Bengal Act. Moreover, the West Bengal Act does not contain any provision pertaining to personnel governed by the Army Act. It is altogether silent in regard to the matter pertaining to the procedure to be followed in regard to Army personnel from the perspective of Section 549 Cr.P.C. and the rules framed under the authority thereof. There is thus no conict between the Criminal Law (Amendment) Act of 1952 and the West Bengal Act in so far as this matter is concerned. Such being the position the provision contained in Criminal Law (Amendment) Act of 1952 with a special eye on the procedure to be followed in Section 8(3A) and Section 11 of the Criminal Law (Amendment) Act of 1952 will operate in this sphere without any let or hindrance. And inasmuch as Section 8(3A) in terms provides that the provision of Section 549 Cr.P.C. shall so for as may be applied to the proceeding before the Special Judge and that for the purposes of that provision a Special Judge shall be deemed to be a Magistrate, the said provisions remain fully alive and unaected by the West Bengal Act. [124C-H; 125A] JUDGMENT:

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Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy Choudhury 1986

CRIMINAL APPELLATE JU- scribed by the Criminal Courts and RISDICTION: Criminal Appeal Nos. Court Martial (Adjustment of Juris170 and 171 of 1977 diction) Rules, 1952 (referred to as From the Judgment and Order Rules hereinafter) framed under Secdated 29th May, 1975 of the Calcutta tion 549 (1) of the Code of Criminal High Court in Criminal Appeal No. Procedure of 1898 (Cr.P.C.) 308 of 1972 and Govt. Appeal No. 5 of 1973. D.P. Mukherjee and G.S. Chatterjee for the Appellant. Rathin Dass and Pankaj Kalra for the Respondents. The Judgment of the Court was delivered by THAKKAR, J. The validity of the trial of three Army Ocers is in question. The High Court has taken the view that the learned Judge presiding over the Special Court had acted without jurisdiction in taking cognizance of the case and proceeding with the trial of three Army Ocers resulting in the conviction of one of them, and the acquittal of the remaining two and has quashed the proceedings. The question which calls for determination in these two allied appeals by special leave preferred by the State of West Bengal is whether the High Court was right in doing so. The following facts are not in dispute: The following contentions were urged before the High Court on behalf of the State with a view to substantiate the contention that the learned Trial Judge had jurisdiction to take cognizance of the case and that the trial was not null and void notwithstanding the fact that the procedure prescribed by the Rules had not been followed. (1) The rules framed under Section 549(1) of Cr.P.C. were not attracted inasmuch as the rules applied to Magistrates and not to a Judge presiding over a Special Court.

(2) Having regard to the provision contained in section 122 of the Army Act, 1950, which prescribes a period of limitation of three years, which period had already elapsed during the pendency of the proceedings in the High Court, the Court Martial would have no jurisdiction to try the accused and that the trial (1) Three accused persons who held by the learned Trial Judge could were tried by the Judge presiding not be said to have been vitiated in over the Fourth Addl. Special Court, view of this circumstance. Calcutta (hereinafter referred to as (3) In view of a letter addressed the learned Trial Judge for the sake by the Brigadier of the Division conof brevity) were Army Ocers. They cerned to the Police Ocer for inveswere charged with oences in respect tigating the oences, it can be said by of which the ordinary Criminal Court necessary implication that the Army and the Court Martial both had con- authorities had opted for the trial of the case by the ordinary Civil Court. current jurisdiction. (2) The Learned Trial Judge had The High Court repelled all the failed to follow the procedure pre- three contentions, allowed the ap-

177 peal of the ocer who was convicted, and dismissed the appeal of the State calling into question the acquittal of the remaining two. Besides reiterating the same three contentions before this Court, learned counsel for the appellant has raised a new point which was not urged before the High Court. We propose to deal with the submissions which were urged in the High Court before coming to grips with the new point sought to be raised by the learned counsel for the appellant State. For a proper appreciation of the rst point, a quick look at the statutory provisions and the position emerging therefrom is called for. In regard to the oences which fall within the purview of Section 70 of the Army Act of 1950, an oender can be tried only by Court Martial whereas in regard to oences falling within the purview of Section 52 of the said Act, the oences can be tried both by the ordinary criminal court as also by the Court Martial both of which have concurrent jurisdiction. The oences with which the concerned accused were charged before the learned Trial Judge were offences which fell within the scope of Section 52 of the Army Act of 1950 and accordingly the ordinary criminal court as also the Court Martial had concurrent jurisdiction. In order to avoid any conict of jurisdiction between the criminal court and the court martial in regard to offenders who are charged with having committed oences which fall under the purview of Section 52 of the Army Act, 1950, Section 549(1)1 of Cr. P.C. provides that Central Government may make Rules consistent with Cr. P.C. and the Army Act. In pursuance of this provision contained in Section 549(1) Cr. P.C. the Central Government has framed Rules known as Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952. Rule 3 of the said Rules requires that when person subject to military, Naval or Air Force law is brought before a Magistrate on accusation of an oence for which he is liable to be tried by Court Martial also the magistrate shall not proceed with the case unless he is requested to do so by the appropriate military authority. On a combined reading of rules 3 and 4/2, it is evident that in case the Megistrate is of the opinion that he should proceed with the case without there being any such request from the appropriate military authority, the concerned Magistrate is enjoined to give notice to the commanding ocer in this behalf. Till the expiry of seven days from the service of such notice on the commanding ocer, the Magistrate is prohibited from making any order of conviction or acquittal or framing any charges or committing the accused. 1 The Central Government may make rules, consistant with this Code and the Army Act, the Naval Discipline Act and the Indian Navy (Discipline) Act, 1934 and the Air Force Act and any similar law for the time being in force, as to the cases in which persons subject to military, naval or air-force law shall be tried by a Court to which this Code applies, or by court martial; and when any person is brought before a Magistrate and charged with

178

Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy Choudhury 1986 out compliance with the aforesaid mandatory procedure would vitiate the trial before the ordinary criminal court and the entire proceedings would be rendered null and void. Faced with this situation, counsel for the State contended before the High Court that the procedure embodied in Section 549(1) of the Cr. P.C. and Rules framed thereunder were applicable only to the court presided over by a magistrate and not to a Judge presiding over a Special Court. This contention was negatived by the High Court. And it has now been reiterated before us, it being an admitted position that the prescribed procedure has not been followed by the learned trial judge in the case giving rise to the present appeals. This argument was possibly inspired by a point debated in Major E.G. Barsay v. The State of Bombay. [1962] (2) S.C.R. 195. The view was taken therein that inasmuch as the aforesaid Rules refer to a Magistrate the Rules were not attracted with regard to a trial before a Special Judge. It was presumably on accout of this decision that the Criminal Law (Amendment) Act of 1952 was amended by incorporating Sections 8 (3A) and 11, reading as under: Section 8(3A): In particular, and without prejudice to the generality of the provisions contained in subsection (3), the provisions of Sections 350 and 549 of the Code of Criminal Procedure, 1898 shall, so far as may be, apply to the proceedings before a Special Judge, and for the purposes of the said provisions a Special Judge shall be deemed to be a Magistrate.

an oence for which he is liable to be tried either by a Court to which this Code applies, or by a court martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the oence of which he is accused, to the commanding ocer of the regiment, corps, ship or detachment to which he belongs, or to the commanding ocer of the nearest military, naval, or air-force station, as the case may be for the purpose of being tried by the Court Martial. 2. 3. Where a person subject to military, naval or Air Force law is brought before a Magistrate and charged with an oence for which he is liable to be tried by a court martial, such magistrate shall not proceed to try such person or to issue orders for his case to be referred to a Bench, or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any oence triable by such Court, unless (a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military, naval or Air Force Authority, or (b) he is moved thereto by such authority. It is in the background of these provisions that the High Court has taken the view that compliance with the procedure prescribed by the Rules is a mandatory requirement and that any proceedings undertaken by the learned Trial Judge with-

179 Section 11: Military, naval and tention urged on behalf of the apair force laws not to be aectedpellant State, albeit on a reasoning 4. Before proceeding under which is somewhat obscure. Conclause (a) of rule 3 the Magistrate fronted by this situation counsel for shall give written notice to the Com- the appellant State has raised a new manding Ocer of the accused and point to which a reference was made until the expiry of a period of seven in the earlier part of the judgment. days from the date of the service of The new point which has been so raised is that Sections 8(3A) and 11 such notice he shall not quoted hereinabove which were in(a) Convict or acquit the accused corporated by Central Act 11 of 1958 under sections 243, 245, 247 or 248 as further amended by Central Act of the Code of Criminal Procedure, XXII of 1966 were not applicable to 1898(V of 1898), or hear him in his the State of West Bengal from where defence under section 244 of the said the matter giving rise to the present Code, or appeals stems. Since no such argu(b) frame in writing a charge ment was advanced before the High against the accused under section 254 Court, initially, we were reluctant of the said Code; or to permit counsel to raise this new (c) make an order committing the point. But having regard to the fact accused for trial by the High Court or that it goes to the root of the matthe Court of Sessions under section ter we have permitted counsel to urge this contention. We will however deal 213 of the said Code. 120 (1) Nothing in this Act shall af- with it after exhausting all the points fect the jurisdiction exercisable by, which were urged before the High or the procedure applicable to, any Court. Court or other authority under any military, naval or air-force law. This amendement was eected by virtue of Central Act XXII of 1966. Having regard to the provision contained in Section 8 (3A) of the Criminal Law (Amendment) Act of 1952 as it now stands it is clear that a Sepcial Judge is deemed to be a Megistrate for the purposes of the Rules framed under Section 549 (1) of the Code of Criminal Procedure with the end in view to eschew the conict between Court Martial on the one hand and the ordinary criminal courts on the other. The High Court was therefore perfectly justied in repelling this conThe next point which was unsuccessfully urged before the High Court was in the context of Section 122 of the Army Act of 1950 which prescribes a period of limitation of three years. The High Court did not accede to the submission in this behalf having regard to the law enunciated by this Court in Delhi Police Establishment, New Delhi v. Lt. Col. Loraiya. [1973] (1) S.C.R. 1010. We are of the opinion that the High Court was right. This Court in the aforesaid case has taken the view to the eect that the question being essentially one of the initial jurisdiction of the ordinary criminal court on the

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one hand and the court martial on the other, unless the procedure prescribed by the rules is complied with the ordinary criminal court would not have initial jurisdiction in regard to the matter, as is evident from the following passage:

well as the court martial should not only have concurrent initial jurisdiction to take cognizance of the case but should also retain jurisdiction to try him up to the last stage of conviction or acquittal. We are unable to accept this construction of the It is an admitted fact in this phrase. case that the procedure specied in As regards the trial of oences rule 3 was not followed by the Spe- committed by Army men, the Army cial Judge, Gauhati before framing Act draws a threefold scheme. Cercharges against the respondent. Sec- tain oences enumerated in the tion 549 (1) Cr. P.C. and rule 3 are Army Act are exclusively triable by mandatory. Accordingly the charges a Court Martial; certain other offramed by the Special Judge against fences are exclusively triable by the the respondent cannot survive. But ordinary criminal courts; and certain counsel for the appellant has urged other oences are triable both by the before us that in the particular cir- ordinary criminal court and the court cumstances of this case the respon- martial. In respect of the last catedent is not Iiable to be tried by a gory both the Courts have concurCourt Martial. rent jurisdiction. Section 549 (1) Cr. Section 122 (1) of the Army Act, P.C. is designed to avoid the conict 1950, provides that no trial by court of jurisdiction in respect of the last martial of any person subject to the category of oences. The clauase for Army Act for any oence shall be which he is liable to be tried either commenced after the expiry of the by the Court to which this Code apperiod of three years from the date plies or by a court martial in our of the oence. The oences are al- view, qualies the preceding clause leged to have been committed by the when any person is charged with an respondent in November-December, oence in s. 549 (1). Accordingly 1962. So more than three years have the phrase is liable to be tried eiexpired from the alleged commission ther by a court to which this Code of the oence. It is claimed that hav- applies or a court martial imports ing regard to Sec. 122(1), the respon- that the oence for which the accused dent is not liable to be tried by court is to be tried should be an oence of which cognizance can be taken by martial. an ordinary criminal court as well This argument is built on the as a court martial. In our opinion, phrase is liable to be tried either the phrase is intended to refer to the by the court to which this Code apinitial jurisdiction of the two courts plies or by a Court Martial in secto take cognizance of the case and tion 549(1). According to counsel for not to their jurisdiction to decide it the appellant this phrase cannotes on merits. It is admitted that both that the ordinary criminal court as

181 the ordinary criminal court and the court martial have concurrent jurisdiction with respect to the oences for which the respondent has been charged by the Special Judge. So, s. 549 and the rules made thereunder are attracted to the case at hand Having regard to the enunciation of law to this eect it is evident that the ordinary criminal court would have no jurisdiction to take cognizance of the case and to try the accused in a matter where the procedure prescribed by the Rules has not been complied with. The initial lack of jurisdiction to take cognizance and try the case would of logical necessity vitiate the trial and the order of conviction and sentence would be liable to be quashed as a result thereof. We are therefore unable to accede to the submission urged on behalf of the appellant State that even if the rules are applicable, having regard the fact that more than three years have expired from the date of the commission of the alleged oence, the trial is not vitiated. The last contention raised before the High Court was that having regard to the fact that the investigation which preceded the lodging of the complaint before the learned Trial Judge was commenced in pursuance of a letter written by the Brigadier of the Division, which contained a request for investigation by the Police into alleged oences, it can be said that the Army authorities had opted for the trial of the accused person by the ordinary criminal court. The argument was that by necessary implication this would follow as a logical corollary. The High Court brushed aside this contention as untenable, taking into account the contents of the letter in question. The said letter was in the following terms: Dear Sir, (1) Please refer to Memo No. 8940 dated August 28, 1963 from Shri R.K. Bhattacharyya, Superintendent of Police, D.E.B., Darjeeling. (2) At appendix A please nd a copy of the investigation that had been carried by us. We request you to take over the case and submit your detailed report to us at your earliest convenience. The High Court relied on the fact that the Army had called for a detailed report by the Police which would show that the Army authorities had not taken any such decision either expressly or by necessary implication. Counsel for the appellant has not been able to press this point with any vigour for the obvious reason that it relates to the stage of investigation preceding the complaint. The question regarding exercise of jurisdiction by the court martial would arise only after the investigation was completed and the police report was available. What is more, it is only after the prescribed procedure under Rules 3 and 4 of the Rules is resorted to by the ordinary criminal court that the question of exercising an option can arise. In the present matter, admittedly the procedure prescribed by the Rules was not followed. Under the circumstances it is futile to contend that the Army authorities had voluntarily abandoned their op-

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tion to try the accused person in the court martial. There is no substance in the plea and it has been rightly repelled by the High Court.

forcement of the Constitution of India by incorporating Section 13 in 1953-3. The said Section 13 has great signicance from the stand point of At long last, we come to the last the present argument: Certain Secpoint, the point which was not urged tions of Act XLVI of 1952, not to apbefore the High Court but which ply to West Bengal: we have permitted the learned coun13. Sections 6, 7, 8, 9 and sel for the State to raise before us. 10 of the Criminal Law Amendment It is argued that the Criminal Law Act, 1952 shall not apply and shall (Amendment) Act of 1952 was not be deemed never to have applied to applicable to the State of West Ben- West Bengal. It will thus be seen gal inasmuch as the State of West that Section 13 of the West BenBengal had enacted an Act of its gal Act in terms accords recognition own known as West Bengal Criminal to the applicability of the Criminal Law Amendment (Special Courts) Law (Amendment) Act of 1952 exAct, 1949 which was in operation cept and save some of the sections throughout the whole of West Ben- namely sections, 6, 7, 8, 9 and 10 gal. No doubt it is true that Criminal thereof which as provided in Section Law is a subject which falls within 13 shall not apply and shall be never the scope of Entry 1 of List III (con- deemed to have applied to West Bencurrent list) embodies in 7th Sched- gal. It is implicit in Section 13 of ule to the Constitution of India. The the West Bengal Act that the Central Union Government as well as the Act namely Criminal Law (AmendState Government both can there- ment) Act of 1952 is applicable to the fore legislate in regard to criminal State of West Bengal except and save law. The contention that the Crimi- the aforesaid ve sections. There nal Law (Amendment) Act, 1952 en- can be no doubt or debate about acted by the Parliament of India is this position having regard to the not applicable to the State of West fact that criminal law is a subject Bengal is altogether misconceived. It which falls under the concurrent list is necessary to advert to the legisla- and the Criminal Law (Amendment) tive history for a proper appreciation Act of 1952 enacted by the Parliaof the point at issue. In 1938 the ment is applicable subject to inconGovernment of India had enacted the sistency, if any, between the said Act Criminal Law (Amendment) Act of and the West Bengal Act. So far as 1938. In 1949 the State of West Ben- the coverage of the present point is gal 124 concerned, there is no such inconsisintroduced the State legislation tency. The West Bengal Act does being the West Bengal Criminal Law not contain any provisions pertaining Amendment (Sepcial Courts) Act, to personnel governed by the Army 1949 (West Bengal Act). This Act Act. It is altogether silent in rewas further amended after the en- gard to the matter pertaining to the

183 procedure to be followed in regard to Army personnel from the perspective of Section 549 Cr. P.C. and the rules framed under the authority thereof. There is thus no conict between the Criminal Law (Amendment) Act of 1952 and the West Bengal Act in so far as this matter is concerned. Such being the position the provisions contained in Criminal Law (Amendment) Act of 1952 with a special eye on the procedure to be followed in Section 8(3A) and Section 11 of the Criminal Law (Amendment) Act of 1952 will operate in this sphere without any let or hindrance. And inasmuch as Section 8(3A) in terms provides that the provision of Section 549 Cr. P.C. shall so far as may be applied to the proceeding before the Special Judge 3. This section was added by Section 3 of the West Bengal Criminal Law Amendment (Special Courts) Amending Act of 1953 (West Bengal Act of 1953). and that for the purposes of that provision a Special Judge shall be deemed to be a Magistrate, the said provisions remain fully alive and uneected by the West Bengal Act. In view of this provision the procedure prescribed by Section 549 Cr. P.C. read with the rules framed thereunder which have been quoted in the earlier part of the judgment will be applicable to a proceeding before a Special Judge in West Bengal as well. In so far as the Army personnel are concerned therefore the law governing them and the procedure required to be followed in their case would be the same in West Bengal as elsewhere in India as it should be. It may incidentally be mentioned that in the West Bengal Act also the Judge presiding over the Special Court is called a Special Judge (vide Schedule to the West Bengal Act). He would therefore deemed to be a Magistrate for the Purposes of the Rules in view of Section 8(3A) of the Criminal Law (Amendment) Act of 1952. The mandatory procedure prescribed by the Rules is accordingly obligatory even in respect of proceedings before a Special Court under the West Bengal Act. There is thus no substance in this point. We are of the opinion that this feeble and faint-hearted attempt is born out of desperation and deserves no more consideration. We have therefore no hesitation in negativing this plea. No other point has been urged. The appeal must therefore fail. But before we write nis it may be made clear that the acquittal rendered by the High Court is on the ground of lack of jurisdiction on the part of the learned Special Judge who tried the case in the Special Court and not on merits. The expression acquitted has been employed by the High Court though it was sucient to say no more than this, that the order of conviction and sentence was without jurisdiction and was therefore being quashed. In the eye of law, it is not an acquittal since it is not on merits. It is thereore for the competent authority to decide whether or not to subject the accused to a fresh trial after following the procedure prescribed by the Rules. With these observations, we dismiss the appeal. M.L.A. Appeal dismissd.

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Chapter 12

Union of India v. Maj S K Sharma 1987

UNION OF INDIA THROUGH petent Authority to hold an inquiry MAJOR GENERALH.C. PATHAK for determining whether there is any v. MAJOR S.K. SHARMA case for trying the accusedIt must PETITIONER: UNION OF IN- proceed to hold the Court Martial or DIA THROUGH MAJOR GENER- take such other eectual proceedings as is contemplated by r. 7(1) of the ALH.C. PATHAK Criminal Courts and Court Martial v. (Adjustment of Jurisdiction) Rules, RESPONDENT: MAJOR S.K. 1978. SHARMA HEADNOTE: An ocer in the DATE OF JUDGMENT29/06/1987 Army led a complaint before a BENCH: PATHAK, R.S. (CJ) Magis- trate alleging that another BENCH: PATHAK, R.S. (CJ) ocer has assaulted him, that the Commanding Ocer to whom he had KHALID, V. (J) CITATION: 1987 AIR 1878 1987 complained earlier had failed to take SCR (3) 456 1987 SCC (3) 490 JT satisfactory action and thus both of them had committed oences under 1987 (3) 12 1987 SCALE (2)12 the Indian Penal Code. The MagisACT: Criminal Procedure Code, trate examined the complainant un1973S. 475Read with ss. 200 to 204 der s. 200 Cr. P.C., took cognizance of the Code, and the provisions of of the oences under s. 190(A) and, the Army Act, 1950 and the Army on being satised of the existence RulesWhen a Magistrate has taken of a prima facie case, issued sumcognizance of an oence committed mons under s. 204(A) for the appearby a member of the Armed Forces ance of the accused. Upon applicaand thereafter transferred the case tions being made by the appellants for trial under the Army Act and the urging that the case be handed over Rules, it is not open to the Com-

186

Union of India v. Maj S K Sharma 1987 communicated to the Magistrate, as soon as may be, in accordance with r. 7 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. Dismissing the appeal by Special Leave, HELD: The Army Authority is not entitled to ignore the proceeding taken by the Magistrate and to invoke the provi- sions of r. 22 and related rules of the Army Rules. The Magistrate having held that there is a case for trying the two accused ocers and having directed their appearance, the Army Authority must proceed to hold a Court Martial for their trial or take other eectual proceedings against them as contemplated by the law. [468G-H] (i) It is open to a Magistrate under ss. 200-203, Cr. P.C. to inquire into a complaint of an oence alleged to have been committed by a military person, where it falls within his jurisdiction and to take proceedings for trial of the accused. Likewise, a duly constituted Army Authority has power under the provisions of r. 22 onwards of the Army Rules to investigate into a charge against a military person accused of an oence triable under the Army Act, and after such hearing to decide whether his trial by a Court Martial should be ordered. The provisions of the Army Rules run parallel to the provisions in the Cr. P.C. Inasmuch as there is always a possibility of the same oence being triable either by a Criminal Court or by a Court Martial, s. 475, Cr. P.C. empowers the Central Government to make rules as to cases in which persons shall be tried by a Court to which the Code applies or by a Court Martial, and

to the Military Authorities for disposal, the Magistrate made an order directing that the case be transferred to the Army Authorities for disposal in accordance with the provisions of the Army Act, 1950 after trial by a Court Martial at any place within the jurisdic- tion of his Court and that the progress of the case be reported to him at intervals of two months. Upon the appel- lants making further applications praying for review of the said order on the ground that under the Army Act and the Army Rules, it was not mandatory that all disciplinary cases against military personnel should culminate in a trial by Court Martial and submitting that the disciplinary action against the ocers concerned would be initiated after an investigation of the alleged oences, the Magistrate, pointing out that the judicial process for ascertaining the prima facie existence of a case had already been completed, held that the trial of the accused by Court Martial was mandatory under s. 475 Cr. P.C. and, therefore, it was not permissible for the Army Authorities to hold a preliminary investigation. However, having regard to s. 127 of the Army Act, the Magistrate directed that the progress of the case be intimated at intervals of four months. in the Revision led by the appellants, the High Court interfered with the order of the Magistrate insofar only that it deleted the direction requiring the Army Au- thorities to inform the Magistrate of the progress of the case at intervals of four months and directed instead that the result of the Court Martial proceeding be

187 the section provides that whenever a person is brought before a Magistrate and charged with an oence for which he is liable to be tried either by a Court to which the Code applies or by a Court Martial, such Magistrate must have regard to such rules and must, in proper cases, deliver the person together with a statement of the oence of which he is accused, to the Commanding Ocer of the unit to which he belongs for the purpose of being tried by a Court Martial. The language used in s. 475 is signicant. It refers to a person who is brought before a Magistrate and charged with an oence. In other words, he must be a person respecting whom the Magistrate has taken the proceedings envisaged by ss. 200 to 204 of the Cede. He will be a person in respect of whom the Magistrate has found that there is a case for trial. It is for that reason that s. 475 goes on to say that when such person is delivered to the Commanding Ocer of the unit to which he belongs, it will be for the purpose of being tried by a Court Martial. When he is so delivered, a statement of the oence of which he is accused will also be delivered to the Commanding Ocer. The relevance of deliv- ering such statement can be easily understood, for it is to enable the Army Authority to appreciate the circumstances in which a Court Martial is required by the law. [464C-D; 465EH] (ii) It is clear from r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 framed under s. 475 of the Cr. P.C. that when the accused is made over by the Magistrate under s. 5 or 6 thereof to the competent military or other authority, it is for the purpose of trial by a Court Martial or other eectual proceedings to be taken or ordered to be taken against him inasmuch as the competent authority must, as soon as may be, inform the Magistrate, whether the accused has been tried by a Court Martial or other eectual proceedings have been taken or ordered to be taken against him and the communication of such information is mandatory. When the Magistrate is informed that the accused has not been tried or other eectu- al proceedings have not been taken or ordered to be taken against him, he is obliged to report the circumstances to the State Government and the State Government, in consulta- tion with the Central Government, may take appropriate steps to ensure that the accused person is dealt with in accord- ance with law. The policy of the law is clear. Once the Criminal Court determines that there is a case for trial, and pursuant to the aforesaid rule, delivers the accused to the competent military or other authority, the law intends that the accused must either be tried by a Court Martial or some other eectual proceedings must be taken against him. [467BE] (iii) The policy of our Constitutional Polity is that no person should be regarded as being above the law. Military, navel or air force personnel are as much subject to the law as members of the civil population. It is signicant that r. 8 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 empowers the Magistrate, on com-

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Union of India v. Maj S K Sharma 1987 diction in respect of an oence, it will he in the discre- tion of the Commanding Ocer of the accused to decide before which Court the proceedings shall he instituted, is of no assistance in deciding whether it is open to the Army Authority to take proceedings for determining prima facie whether there is substance in the allegations made against the accused and decline to try him by a Court Martial or take other eectual proceedings against him even where a Magistrate has taken cognizance of the oence and nds that there is a case for trying the accused. [468EF] (vi) There is nothing in the provisions of the Army Rules relating to Courts of Inquiry which can support the contention that notwithstanding the proceeding taken by the Magistrate it is open to the Army Authority to hold a Court of Inquiry and determine whether there is any case for trying the accused by a Court Martial. If, it is not open to the Army Authority to have recourse to r. 22 of the Army Rules and investigate the charge directed against the ac- cused ocer in this case, for the same reason, it is not open to it to hold a Court of Inquiry and supersede the proceeding already taken by the Magistrate. [469B-D] JUDGMENT: CRIMINAL APPELLATE ORIGINAL JURISDICTION: Criminal Appeal No. 271 of 1987. From the Judgment and Order dated 3.7. 1986 of the Gauhati High Court in Crl. Revn. No. 229 of 1986. A.K. Ganguli, R.P. Srivastava, P. Purameswarn and Ashok K. Srivastava for the Appellant in Crl. A.

ing to know that a person subject to the military, naval or air force law or any other law relating to the Armed Forces has committed an oence and proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except through military, navel or air force author- ities, to require the Commanding Ocer of such person either to deliver such person to a Magistrate for being proceeded against according to law or to stay the proceed- ings against such person before the Court Martial if since instituted, and to make a reference to the Central Govern- ment for determination as to the Court before which the proceedings should be instituted. [467G-H; 468A-B] (iv) Section 127 of the Army Act provides that a person convicted or acquitted by a Court Martial, may, with the previous sanction of the Central Government, be tried against by a Criminal Court for the same oence or on the same facts which is an exception to the rule contained in Art. 20 of the Constitution that no person shall be prose- cuted and punished for the same oence more than once. It is to enable the operation and application of s. 127 of the Act that r. 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 requires the compe- tent military or other authority to inform the Magistrate whether the accused has been tried by a Court Martial or other eectual proceedings have been taken against him. [468B-D] (v) Section 125 of the Army Act, which provides that when a Criminal Court and a Court Martial have each juris-

189 No. 271 of 1987 and Respondent in W.P. (Crl.) No. 664 of 1986. R.K. Jain, Gaurav Jain, Abha Jain and R.P. Singh for the Respondent in Crl. A. No. 271 of 1987 and Petitioner in W.P. (Crl.) No. 664 of 1986. The Judgment of the Court was delivered by PATHAK, CJ. Special Leave is granted. The respondent Major S.K. Sharma addressed a letter dated 21 December 1985 to Brigadier S.S. Randhawa, Command- er, HQ 41 Sub Area alleging that on 15 December, 1985 he was manhandled by Col. Mir Usman Ali in the HQ 41 Sub Area Ocers Mess at Jorhat. It was stated that the incident took place in the presence of Major M.M. Subbaiah. Major Sharma was attached to B Camp. Signal Regiment while Col. Ali belonged to HQ 41 Sub Area. Brigadier Randhawa wrote to the Ofcer Commanding, B. Comp. Signal Regiment on 14 January 1986 seeking clarication from Major Sharma on some of the allegations. It appears that correspondence was exchanged in the matter but apparently Major Sharma, having met with no satisfactory response, led a complaint 21 January 1986 in the Court of the Additional Chief Judicial Magistrate, Jorhat alleging that Col. Ali had criminally assaulted him and further that Brigadier Randhawa did not report the matter to the higher authorities and was attempt- ing to protect Col. Ali. It was alleged in the complaint that Col. Ali had committed the oences under sections 323, 352 and 355 of the Indian Penal Code and Brigadier Randhawa had committed the oence under section 2 17 of the Indian Penal Code. The Additional Chief Judicial Magistrate exam- ined the complaint, and taking cognizance of the oences alleged to have been committed by Col. Ali and Brigadier Randhawa it directed that summons be issued to them for their appearance before him on 7 March, 1986. On two applications moved by Major Sharma before him the Chief Judicial Magistrate made an order dated 25 January. 1986 directing that the venue of a Court of Inquiry insti- tuted in respect of certain complaints made against Major Sharma by his Commanding Ocer be shifted from Mohanbari, where it was convened, to a place within the jurisdiction of his Court and it was directed further that Major Sharma should not be moved out of the jurisdiction of the Court during the pendency of the case. Major Sharma had complained that the Court of Inquiry had been ordered by Brigadier Randhawa at Mohanbari as a measure of retaliation because of the institution of the criminal case by Major Sharma before the Additional Chief Judicial Magistrate. On 7 February 1986 the Union of India moved an applica- tion before the Chief Judicial Magistrate along with an application dated 3 February 1986 addressed to the Court by Major General T.S. Chaudhri informing the Chief Judicial Magistrate that the General Ocer Commanding was of opin- ion that Col. Ali should be dealt with in accordance with the procedure laid down under the Army Act and the Army Rules and the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978, and that therefore, the case

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Union of India v. Maj S K Sharma 1987 petent authority was. allowed. In this connection he made reference to Delhi Special Police Establishment v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548. He directed that the case be transferred to the Army authorities pursu- ant to the requisitions, and for disposal in accordance with the provisions of the Army Act, 1950 after trial by a court martial at any place within the jurisdiction of his Court, He directed further that the progress of the case should be reported to his Court at intervals of two months and ultimately intimating the result thereof, for the purpose of determining whether a successive trial was necessary as provided for in the Army Act. While making the order the Chief Judicial Magistrate noted that the Army authorities had not shifted the venue of the Court of Inquiry mentioned earlier to any place within the jurisdiction of his court as required by his order dated 25 January, 1986, and this prima facie amounted to contempt for which it was open to Major Sharma to apply to the High Court for necessary action. He also directed that Major Sharma should be permitted to proceed on leave to enable him to apply to the Gauhati High Court for ling a writ petition or taking other legal proceedings. On 21, March 1986 the Union of India through the General Ocer Commanding led an application before the Chief Judicial Magistrate for modication of the order dated 17 February 1986. In that application it was contended that under the Army Act and the Army Rules it was not mandatory that all dis-

may be handed over to the Military Authorities. It was pointed out by Major Chaudhri in his letter that the com- plaint before the Additional Chief Judicial Magistrate against Col. Ali should, in his opinion, be disposed of under the procedure laid down in Army Rule 22 of Army Rules, 1954 and that under s. 125 of the Army Act 1950 read with Army Rule 197A of the Army Rules and the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1978, Major General Chaudhri was the competent Military authority to claim the case. He requested that the case should be handed over to the Military authorities for further necessary action. On 12 February 1986 the Union of India moved another application before the Chief Judicial Magistrate along with an application dated 3 February 1986 addressed to the Chief Judicial Magistrate by Major General T.S. Chaudhri as Gener- al Ocer Commanding requesting that the case against Brigadier Randhawa should similarly be handed over to the Military authorities for necessary action. On 17 February 1986 the Chief Judicial Magistrate, Jothat made an order disposing of the two requisitions made by Major General Chaudhri. He noted that the cognizance of the oences had been taken by the Additional Chief Judicial Magistrate and necessary process had been issued against both accused to compel their presence, and that in the light of Rule 3 of the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1978 the prayer for trial by a Court martial by the com-

191 ciplinary cases against military personnel should culminate in a trial by the Court Martial and that the directions made by the Chief Judicial Magistrate with regard to the trial of Brigadier Randhawa and Col. Ali by Court Martial were in contravention of the Army Act and the Army Rules and the Criminal Court and Court Martial (Adjust- ment of Jurisdiction) Rules 1978. It was asserted that the proposed disciplinary action would be initiated by the General Commanding Ocer after an investigation of the alleged oences in accordance with Army Rule 22. It was prayed that the order dated 17 February 1986 be reviewed by deleting the direction for a trial by Court Martial at a place within the jurisdiction of the Court of the Chief Judicial Magistrate and of the direction further that the progress of the case should be intimated to the Chief Judi- cial Magistrate at intervals of two months. On 7 April 1986 the Union of India led another application making more detailed submissions for modication or the other dated 17 February 1986. A third application was moved by the Union of India on 30 April 1986 to the Chief Judicial Magistrate requesting that the records of the case be handed over to the Army authorities. These applications were disposed of the Chief Judicial Magistrate by his order dated 8 May 1986. In that order he noted that the Additional Chief Judicial Magistrate had, on receipt of the complaint examined the complainant Major S.K. Sharma under s. 200 of the Cr. P.C. and had taken cognizance of the oence under s. 190(A) of the Code and on being satised of the existence of a prima facie case process had been issued by him under s. 204(A) of the Code. He noted that the judicial process for ascertaining the prima facie existence of a case had thereby been completed. He held that in the circumstances the trial of the accused ocers by a court martial appeared to be mandatory under the provisions of s. 475 of the Code. He observed that the preliminary investiga- tions by a departmental court of inquiry did not seem per- missible in the case. However, having regard to s. 124 of the Army Act which conferred absolute power on the Army authorities to choose the venue of trial and keeping in view the administrative convenience of the Army authorities he decided to accept the request of the General Ocer Com- manding for deleting the direction in respect of the venue of the trial. The Chief Judicial Magistrate also directed that instead of intervals of two months the Army authorities should, having regard to the provision of s. 127 of the Army Act, inform his Court as to the progress of the case at intervals of four months. On 14 June 1986 the Union of India through the General Ocer Commanding led a revision petition before the High Court at Gauhati, which was disposed of by the High Court by its order dated 3 July 1986. The High Court interfered with the order of the Chief Judicial Magistrate in so far only that it deleted the direction requiring the Army authorities inform the Chief Judicial Magistrate of the progress of the case at intervals of four months,

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Union of India v. Maj S K Sharma 1987 has been argued by learned counsel at length. It is apparent from the provisions of the Code of Crimi- nal Procedure that it is open to a Magistrate to inquire into a complaint of an oence alleged to have been committed by a military person, where it fails within its juris- diction, and to take proceedings either for his trial or for committing the case to the Court of Sessions for trial. Likewise, there is power under the Army Act in a duly con- stituted Army authorities to investigate into a charge against a military person accused of an oence triable under the Army Act, and after such hearing to decide whether his trial by a Court Martial should be ordered. In the former case, ss. 200 to 203 of the Code of Criminal Proce- dure provide the procedure to be followed by Magistrates taking cognizance of an oence on a complaint. The Magis- trate is required to examine on oath the complaint and the witnesses present and reduce the substance of such examina- tion to writing to be subsequently signed by the complainant and the witnesses and by the Magistrate. That is the proce- dure except when the complaint is made in writing by a public servant or the Magistrate makes over the case for trial or inquiry to another Magistrate. The Magistrate may either inquire into the case himself or direct an investiga- tion to be made by a police ocer or by such other person as he thinks t for the purpose of deciding whether or not there is sucient ground for proceeding. Where, however, it appears to the Magistrate that the oence complained of its triable exclusively by

and it directed instead that the result of the Court Martial proceedings should be communicated to the Chief Judicial Magistrate as soon as may be in accordance with Rule 7 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. It may be mentioned that according to the order of the High Court the only submission raised on behalf of the appellant in the revision petition was that the Magistrate had no jurisdiction to direct the Court Martial to submit reports relating to the progress of the case, including the result thereof, at intervals of four months. Thereafter a special Leave Petition was led by the Union of India, out of which the present appal arises. Although it appears that the only point raised before the High Court on the revision petition related to the direction that the Army authorities should report periodi- cally to the Chief Judicial Magistrate 464 in regard to the progress of the case, learned counsel for the appellants has raised a more fundamental question before us. That question is whether it is open to the Army authori- ties to constitute a Court of Inquiry, enter upon an inves- tigation of the charges under Rule 22 of the Army Rules and determine whether there is a case for trial by a Court Martial. Learned Counsel contends that the proceedings already taken by the Additional Chief Judicial Magistrate must be ignored for the purpose and the Army authorities are not bound to try the accused by a Court Martial. Although the point was not taken before the High Court we have per- mitted it to be raised before us and it

193 the Court of Session no such direction for investigation can be made by him. For the purpose of inquiry be may take evidence of witnesses on oath. If the Magistrate is of opinion that the oence complained of is triable exclusively by the Court of Session he must call upon the complainant to produce all his wit- nesses and examine them on oath. If after considering the statement on oath of the complainant and of the witnesses and the result of the inquiry or investigation directed by him the Magistrate is of opinion that there is no sucient ground for proceeding he must dismiss the complaint. Where the Magistrate is of opinion that there is sucient ground for proceeding he must adopt the procedure setforth in sections 204 onwards. He must issue process for the attend- ance of the accused. In certain cases he may dispense with the personal attendence of the accused and permit him to appear by his pleader. Where, however, the proceeding is taken by an Army authority under the Army Act reference must be made to the provisions of Rule 22 onwards of the Army Rules. The Rules provide for the hearing of a charge, in which the accused has liberty to cross examine any witness against him and to call any witnesses and make any statement in his defence. If the Commanding Ocer investigating the charge nds no offence has been committed he must dismiss the charge. He may also do so if, in his discretion, he is satised that the charge has not to be proceeded with. If the charge is to be proceeded with he may pass any of the orders detailed in Rule 22(3). They include proceedings for trial by a Court Martial. It is clear that these provisions of the Army Rules run parallel to the provisions of the Code of Criminal Procedure adverted to earlier. Now inasmuch as there is always a possibility of the same oence being triable either by a Criminal Court or by a Court Martial the law has attempted to resolve the competings claims of the civil authority and the military authori- ty in such cases. Section 475 of the Code of Criminal Proce- dure empowers the Central Government to make rules as to cases in which persons shall be tried by a Court to which the Code applies or by a Court Martial, and the section provides that whenever a person is brought before a Magis- trate and charged with an oence for which he is liable to be tried either by a Court to which the Code applies or by a Court Martial such Magistrate must have regard to such rules and must, in proper cases, deliver the person together with a statement of the oence of which he is accused to the Commanding Ocer of the unit to which he belongs for the purpose of being tried by a Court Martial. The language used in s. 475 is signicant. It refers to a person who is brought before a Magistrate and charged with an oence. In other words, he must be a person respecting whom the Magis- trate has taken the proceedings envisaged by ss. 200 to 204 of the Code. He will be a person in respect of when the Magistrate has found that there is a case for trial. It is for that reason that s. 475 goes on to say that when such person is

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Union of India v. Maj S K Sharma 1987 proceeding further with the case and either proceeding to try the accused or to commit the case to the Court of Ses- sion the Magistrate must, under Rule 4, give written notice to the Commanding Ocer of the accused and refrain for a period of 15 days from doing any of the acts or making any of the orders in relation to the trial of the accused speci- ed in Rule 4. In the event of the Magistrate entering upon the trial of the accused or committing the case to the Court of Session at the instance of the military, naval or air force authority it is open to such authority or the Command- ing Ocer of the accused to give notice subsequently under Rule 5 to such Magistrate that, in the opinion of such ocer or authority the accused should be tried by a Court Martial. Upon such notice, the Magistrate, if he has not taken any action or made any order referred to specically in Rule 4 before receiving such notice, must stay the pro- ceedings and deliver the accused together with the statement referred to in s. 475(1) of the Code to the Ocer speci- ed in that subsection. In the other kind of case, where the Magistrate intends to proceed to try the accused or to commit the case to a Court of Session without being moved in that behalf by the military, naval or air force authority, and he has given notice under Rule 4 to the Commanding Ocer or the military, naval or air force authority of his intention to do so, Rule 6 empowers the Commanding Ocer or the competent authority to give notice to the Magistrate within the aforesaid period of 15 days or in any event be-

delivered to the Commanding Ocer of the unit to which he belongs it will be for the purpose of being tried by a Court Martial. When he is so delivered, a statement of the oence of which he is accused will also be delivered to the Commanding Ocer. The relevance of delivering such statement can be easily understood, for it is to enable the Army authority to appreciate the circumstances in which a Court Martial is required by the law. We now turn to the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. These Rules have been framed under s. 475 of the Code of Criminal Procedure. When a person subject to military, naval or air force law or any other law relating to the Armed Forces is brought before a Magistrate and charged with an oence for which he is also liable to be tried by a Court Martial, the Magistrate will not proceed to try such person or to commit the case to the Court of Session unless (a) he is moved to that eect by a competent military, naval or air force authority or (b) he is of opinion for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority. Rule 3, in our opinion, comes into play at the point where the person has been brought before a Magistrate and charged with an oence. That is the stage adverted to earlier where the accused is directed to appear before the Magistrate and is charged with an oence after the Magis- trate has determined that there is a case for trial. Before

195 fore the Magistrate takes any action or makes any order referred to in that Rule, that in the opinion of such ocer or authority the accused should be tried by a Court Martial. Upon such notice the Magistrate must stay the proceedings and deliver the accused together with the statement referred to in s. 475(1) of the Code to the ocer specied in that sub-section. It is clear that when the accused is made over by the Magistrate to the Commanding Ocer or the competent military, naval or air force authority it is for the purpose of trial by a court martial or other eectual proceedings to be taken or ordered to be taken against him. For Rule 7(1) provides that when an accused has been delivered by a Magistrate under Rule 5 or 6 the Commanding Ocer or the competent military, naval or air force authority must, as soon as may be, inform the Magistrate whether the accused has been tried by a Court Martial or other eectual pro- ceedings have been taken or ordered to be taken against him. The communication of such information is mandatory. When the Magistrate is informed that the accused has not been tried or other eectual proceedings have not been taken or or- dered to be taken against him, he is obliged to report the circumstance to the State Government and the State Government, in consultation with the Central Government may take appropriate steps to ensure that the accused person is dealt with in accordance with law. The policy of the law is clear. Once the Criminal Court determines that there is a case for trial. and pursuant to the aforesaid rule, delivers the accused to the Commanding Ocer or the competent military, naval or air force authority, the law intends that the accused must either be tried by a Court Martial or some other eectual proceedings must be taken against him. To ensure that proceedings are taken against the accused the Rules require the Commanding Ocer or the competent au- thority to inform the Magistrate of what has been done. Rule 7(2) appears to envisage the possibility that the Commanding Ocer or the competent military, naval or air force au- thority may not try the accused or take eectual proceed- ings against him even where the Magistrate has found a case for trial. To cover that exigency it provides that the State Government in consultation with the Central Government, on a report from the Magistrate to that eect, may take appropriate steps to ensure that the accused does not escape the attention of the law. The policy of our Constitutional polity is that no person should be regarded as being above the law. Military. naval or air force personnel are as much subject to the law as members of the civil population. It is signicant that Rule 8 empowers the Magistrate. on coming to know that a person subject to the military. naval or air force law or any other law relating to the Armed Forces has committed an offence and proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except

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Union of India v. Maj S K Sharma 1987 Section 125 provides that when a Criminal Court and a Court Martial have each jurisdiction in respect of an oence it will be in the discretion of the Commanding Ocer of the accused to decide before which Court the proceedings shall be institut- ed. This provision is of no assistance in deciding whether it is open to the Army authority to take proceedings for determining prima facie whether there is substance in the allegations made against the accused and decline to try him by a Court Martial or take other eectual proceedings against him even where a Magistrate has taken cognizance of the oence and nds that there is a case for trying the accused. On the aforesaid analysis we are of opinion that the Army authority is not entitled to ignore the proceeding taken by the Additional Chief Judicial Magistrate and to invoke the provisions of Rule 22 and related rules of the Army Rules. The Additional Chief Judicial Magistrate having hold that there is a case for trying the two accused o- cers and having directed their appearance, the Army authori- ty must proceed to held a court martial for their trial or take other eectual proceedings against them as contemplat- ed by the law. The contention advanced by learned counsel for the appellants to the contrary must be rejected. We have also been referred to the provisions of the Army Rules relating to Courts of Inquiry, and learned counsel for the appellants urges that notwithstanding the proceeding taken by the Additional

through military. navel or air force authorities. to require the Commanding Ocer of such person either to deliver such person to a Magistrate for being proceeded against according to law or to stay the proceedings against such person before the Court Martial if since instituted, and to make a reference to the Central Government for determination as to the Court before which the proceedings should be instituted. Reference may also be made to s. 127 of the Army Act. It is an important provision. It provides that a person convicted or acquitted by a Court Martial, may, with the previous sanction of the Cen- tral Government, be tried again by a Criminal Court for the same oence or on the same facts. This provision is an exception to Article 20 of the Constitution which provides that no person shall be prosecuted and punished for the same offence more than once. The provision has been made possible by reason of Article 33 of the Constitution which confers power on Parliament to modify any Fundamental Right in its application to the members of the Armed Forces. It is to enable the operation and application of s. 127 of the Act that Rule 7(1) of the Criminal courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 requires the Com- manding Ocer or the competent military, naval and air force authority to inform the Magistrate whether the accused has been tried by a Court Martial or other effectual pro- ceedings have been taken against him. Our attention has been drawn by learned counsel for the appellants to s. 125 of the Army Act.

197 Chief Judicial Magistrate it is open to the Army authority to hold a Court of Inquiry and deter- mine whether there is any case for trying the accused by a Court Martial. We have been taken through Rule 177 and the connected Rules which deal with the institution and conduct of Courts of Inquiry, but we see nothing in those provisions which can support the contention now raised before us. If, on the analysis detailed earlier, it is not open to the Army authority to have recourse to Rule 22 and investigate the charge directed against the accused ocer in this case. for the same reason it is not open to it to hold a Court of Inquiry and supersede the proceedings already taken by the Additional Chief Judicial Magistrate. We may mention that learned counsel for the parties placed a number of cases before us, but having carefully perused the judgments in those cases we do not nd any declaration of law therein which is inconsistent with the view taken by us. Accordingly, the appeal is dismissed. In the Criminal Writ Petition Major S.K. Sharma prays for a number of reliefs. The material reliefs are that a direction be issued to the Army authorities to postpone the return of the petitioner to the Unit to which he has been posted and direct the Army authorities to stay all parallel proceedings against the petitioner until the hearing and disposal of their Special Leave Petition. So far as the rst submission as concerned it refers to the mental and physical stress suered by the petitioner, apparently necessitating his treatment at a hospital with sychiatric facilities. We do not think it necessary to issue any direction because, we think, it is a matter which can be adequately and humanely dealt with by the Army authorities. If indeed the petitioner should be given a posting where the requisite medical facilities are available we have no reason to doubt that the Army authorities will aord such posting to the petitioner. In doing so it will be open to the Army authorities to obtain the latest medical report respecting the condition of the petitioner. As regards the second relief, we have already disposed of the special leave petition today and, therefore, no order need be passed in respect of that relief. In the result the writ petition is dismissed. H.L.C. Petition dismissed.

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Union of India v. Maj S K Sharma 1987

Chapter 13

Vidya Prakash v. Union Of India 1988

Vidya Prakash v. Union Of India & Ors on 10 February, 1988 Equivalent citations: 1988 AIR 705, 1988 SCR (2) 953 Bench: Ray, B.C. PETITIONER: VIDYA PRAKASH v. RESPONDENT: UNION OF INDIA & ORS. out leave-Charge sheeted-Trial by Summary Court Martial-Held guiltyDismissed from service-In writ petition assailing constitution of summary court martial by Commanding Ocer-Whether Commanding ocer of Corps competent to constitute the summary court martial-Held order of dismissal valid. HEADNOTE:

DATE OF JUDGMENT10/02/1988 The appellant was appointed to the post of Craftsman (Jawan) on BENCH: November 23, 1973. He was later RAY, B.C. (J) promoted to the post of Naik in view BENCH: of his good services and subsequently conrmed in that post. He served at RAY, B.C. (J) various places in the country, includSEN, A.P. (J) ing eld areas. He was, however, reCITATION: verted from the post of Naik to the 1988 AIR 705 1988 SCR (2) 953 post of Craftsman (Jawan). While 1988 SCC (2) 459 JT 1988 (1) 284 he was in service he incurred the displeasure of the Commanding Ocer 1988 SCALE (1)313 of his regiment (Major) as he did ACT: not comply with his directions. He Army Act, 1950/Army Rules, was consequently harassed and mal1954: Sections 39(a), 71(e), 108 and treated in various ways. Unable to 116/Rule 39(2)-Jawan-Absent with- bear the torture he surrendered to

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Vidya Prakash v. Union Of India 1988 Martial that the appellant was not allowed to be represented by his counsel, that no objection was taken as to the competence of the Commanding Ocer to act as a Judge in the Summary Court Martial, that the appellant had earlier been convicted four times and entries were made in red ink in his service record, and that as the appellant was absent from duty without leave and pleaded guilty before the court martial proceedings, there was as such no illegality in the order of dismissal made in the court martial proceedings. Dismissing the Appeal, HELD: 1. Four kinds of courts martial are specied in Section 108 of the Army Act, 1950. These are:(a) General Courts Martial; (b) District Courts Martial; (c) Summary General Courts Martial and (d) Summary Courts Martial. [959G-H; 960A] 2. Section 116 of the Act says that a summary court martial may be held by the Commanding Ocer of any corps or department or detachment of the regular Army, and he shall alone constitute the court, and that the proceedings shall be attended throughout by two other persons who shall be Ocers or junior commissioned ocers or one of either, and who shall not as such, be sworn or armed. It is only in the case if general court martial or district court martial that Rule 39(2) of the Army Rules 1954 is applicable and the Commanding Ocer is not competent to convene general or district court martial. [960B,D]

the mercy of the Commanding Ocer of the Battalion (Colonel). He, however, directed him to surrender to the Commanding Ocer of his regiment and gave him a certicate of surrender. The Commanding Ofcer took him into custody. He was charge-sheeted for the purpose and sentenced to 42 days imprisonment in military custody. During the period of his remaining in military custody, his family suered harassment. The appellant on 12th September, 1984 left station with his wife and children without taking any leave. He stated that he became unwell and was under the treatment of a doctor. When he reported back to his unit with the tness certicate the Commanding Ofcer of his regiment served him with a charge-sheet on November 2, 1984 and directed that he be tried by a summary court martial. On November 9, 1984, the order of dismissal of the appellant from service was made by the Commanding Ocer in the Summary Court Martial. The appellant challenged the aforesaid order in a writ petition to the High Court, and sought quashing of the same contending: that the Commanding Ocer was not legally competent to preside a summary court martial, that the punishment of dismissal from service was disproportionate to the charge, that he was denied a fair opportunity to defend himself, and was in fact not permitted to question the witnesses. A Division Bench of the High Court however, dismissed the writ petition holding that no objection was taken before the Summary Court

201 3. In the instant case, the summary court martial was held by the Commanding Ocer of the Corps, Major P.S. Mahant and there were two other ocers Captain K.J. Singh and another ocer to attend the proceedings. In such circumstances, the summary court martial had been convened by the Commanding Ocer according to the provisions of the Army Act, 1950. [960C, E-F] 4. Section 39(a) of the Act species that to be absent without leave constitutes an oence, while Section 71(e) provides dismissal from service as one of the punishments for such an oence. [960F] 5. The appellant in the instant case, undoubtedly absented himself from duty without taking any leave from the lines as required under the Army Act, was charge-sheeted for the said oence and tried by a summary court martial convened by the Commanding Ocer. After giving him due opportunity it was held that the appellant was previously punished also for the oence of absence from duty on four occasions and there was a red ink entry. Considering all this, in the summary court martial proceedings he was convicted and sentenced to the punishment of dismissal from service. The submission on behalf of the appellant that punishment is disproportionate to the charge is wholly unsustainable. As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality. It is also evident from the judgment of the High Court that the appellant admitted his guilt of absenting from duty without any leave. [960G-H; 961A-B,F] JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2107 of 1987. From the Judgment and Order dated 3.3.1986 of the Delhi High Court in Writ Petition No. 2503 of 1985. R.K. Garg and D.K. Garg for the Appellant. M.S. Rao and C.V. Subba Rao for the Respondents. The Judgment of the Court was delivered by RAY, J. Special leave granted. Heard arguments of learned counsel for the parties. This appeal by special leave is against the judgment and order dated 3rd March, 1986 passed by the High Court at Delhi dismissing the writ petition No. 2503 of 1985. The facts of the case in brief are that the appellant was appointed to the post of Craftsman (Jawan) on November 23, 1973. We was sent to 3 E.M.E. Centre, Bhopal for training. After completion of his two years training he was posted to 80 EME Battalion C/o 56. A.P.O. on July 25, 1975. The appellant in view of his good service was promoted to the post of Naik and subsequently he was conrmed in that post. During his service as Jawan and as a Naik, the appellant served at various places in the country including the eld area at Punj Sector in Jammu & Kashmir. The appellant was reverted from the post of Naik to the post of Jawan (Craftsman) by Lt. Col. G.S. Srivastava and he was, thereafter, directed to re-

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Vidya Prakash v. Union Of India 1988 After coming round he reported to Panagarh and reported in his Unit with the tness certicate. The appellant was called by the Ocer Commanding and he was served with a charge-sheet on November 2, 1984 wherein it was ordered by Major P.S. Mahant that the appellant be tried by a Summary Court Martial. It has been alleged that Major Mahant appointed his close associate Captain K.J. Singh to record summary of evidence. The appellant was not given proper opportunity to defend himself. In the proceedings the appellant was not allowed to raise any objections. On 9th November, 1984, the order of dismissal from service of the appellant was made by Major P.S. Mahant, Commanding Ocer, in the summary court martial. The appellant challenged this order by a writ petition being Civil Writ Petition No. 2503 of 1985 on the ground that the Commanding Ocer was not legally competent to preside a summary court martial. It was also stated in the petition that the punishment of dismissal from service was disproportionate to the charge; he was denied a fair opportunity to defend himself and was in fact not permitted to ask questions to the witnesses. The appellant so prayed for issuance of an appropriate writ for quashing the impugned order of dismissal from service and also for a direction to the respondents to pay the entire arrears of salary and allowances which are legally due to him. The writ petition was heard by a Division Bench of the High Court at Delhi and it was

port to NEFA. The appellant joined his post in NEFA. However, the appellant was subsequently transferred and posted in Panagarh. One Major N.K. Tiwari who was the Commanding Ocer of the said regiment became very much displeased with the appellant as he did not comply with his directions to go to Kanpur to bring his personal goods from Kanpur to Panagarh. The appellant was harassed and maltreated in various ways. The appellant being unable to bear the torture caused to him approached Col. R.K. Mehta, Commanding Ocer, EME Depot Battalion, Sikandrabad and surrendered to the mercy of the said Colonel. The Colonel advised the appellant to go back to Panagarh and report to his Unit. The appellant was sent with the certicate of surrender. On his return, the appellant was not permitted to join his duty; but he was taken into the custody immediately and thereafter he was directed by Major Tiwari to be treated without leave for three days and should be court martialled for the same. The appellant was charge-sheeted for the purpose and he was convicted to 42 days imprisonment in military custody. During the period of his remaining in military custody, he was given only a small sum of Rs.60 and as such his family had to suer much harassment. The appellant, however, on 12th September, 1984 left Panagarh with his wife and children for Kanpur without taking any leave. It is stated that he became unwell and he was under the treatment of a doctor.

203 dismissed on March 3, 1986 holding inter alia that no objection was taken before the Summary Court Martial that the appellant was not allowed to be represented by his counsel. It was also held that in the writ petition no objection was taken as to the competence of Major P.S. Mahant to act as a Judge in the Summary Court Martial nor objection was made to the eect that Captain K.J. Singh ordered him to keep his mouth shut. It was also observed that besides Major P.S. Mahant who was presiding Summary Court Martial there were two other members. The appellant, it was held, had earlier been convicted four times and entries were made in the red ink. The appellant was absent from duty without any leave and he pleaded guilty before the court martial proceedings and as such there was no illegality in the order of dismissal made in the court martial proceedings. It is against this judgment and order, the impugned appeal on special leave has been preferred before this Court. that the Commanding Ocer served on the Court Martial and as such the court martial proceedings are in breach of Rule 39(2) of the Army Rules, 1954. It has been further stated that the appellant was tried by a Summary Court Martial and not by a General or District Court Martial and Army Rule 39(2) does not apply to Summary Court Martial constituted under Section 116 of the Army Act, 1950. It has been further stated that a Summary Court Martial may be held by a Commanding Ocer of any Corps, Department or Detachment of the regular army, as stipulated by Section 116(c) of the Army Act. It has been submitted that the appellant has been tried by a Summary Court Martial and he was sentenced to dismissal from service on November 9, 1984. It has also been stated that the proceedings have been attended throughout by two other persons in accordance with the provisions of Section 116(1) of the said Act. It has been averred that in a case of Summary Court Martial as per Section 116 of the said Act, the Commanding Ocer shall alone constitute the Court. The proceedings of the Court shall be attended by two ocers/JCOs or one of either. It has been further stated that the appellant incurred the following red ink entries while serving with various units prior to the summary court martial:

An adavit in counter sworn by one Capt. D.K. Ghosh on behalf of the respondents has been led. In paragraph 4 of the said adavit, it has been submitted that Rule 39(2) of the Army Rules deals with the disqualication of ocers for General and District Courts Martial. The said rule says that an ocer is dis(i) 14 days R.I. in military cusqualied for serving on a general or tody under AA (Army Act) Sec. district court martial if he is the Commanding Ocer of the accused. 39(a) on September 3, 1975 by 80 The appellant has assailed the court EME Bn. (ii) 3 days R.I. in military cusmartial proceedings on the ground

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Vidya Prakash v. Union Of India 1988

tody under A.A. Sec. 39(a) on 22nd June, 1979 by 1 EME Centre. (iii) Reduced to the rank under AA Sec. 63 on 24 January, 1983 by 174 Fd. Regt.

over the same. The order of dismissal was passed in violation of the rules of natural justice. It has also been submitted that the conviction of the appellant was in utter breach of Ar(iv) 28 days R.I. and 14 days de- ticles 14 and 21 of the Constitution tention in mil. custody under AA of India and as such the said order Sec. 39(a) on 10th July, 1984 by 986 was liable to be set aside. AD. Regt WKSP. The rst submission on behalf of the appellant is that the constitution The appellant was issued a show cause notice for discharge being un- of the Summary Court Martial by the suitable inecient soldier on 30th Commanding Ocer Major P.S. MaAugust, 1984 to which he replied on hant is in contravention of Rule 39(2) 2nd September, 1984. The appellant of the Army Rules, 1954. the releagain became absent without leave vant provisions of Rules 39 are in the on 13th September, 1984. The ap- following terms: pellant did not inform the Unit authority again of taking his family to Kanpur. While leaving for Kanpur he locked his quarter securely to keep possession of the family accommodation. The proceedings of the summary court martial were in accordance with the provisions of the Army Act and the order of dismissal from service of the appellant is a valid order. A rejoinder was led by the appellant wherein he reiterated that the order of dismissal passed by the Commanding Ocer, Major P.S. Mahant was illegal and contrary to the provisions of natural justice. The charge- sheet was given to the appellant by the aforesaid Major alleging that the appellant remained absent from 13th September, 1984 to 30.10.1984 without leave from the Units line and the said ocer himself made an order that the appellant shall be tried by a summary court martial on that day. The said ocer constituted the court of summary court martial and himself presided Rule 39 ........ (2) An ocer is disqualied for serving on a general or district court martial if he: (a) is an ocer who convened the court; or (b) is the prosecutor or a witness for the prosecution; or (c) investigated the charges before trial, or took down the summary of evidence, or was a member of a court of inquiry respecting the matters on which the charges against the accused are founded, or was the squadron, battery, company, or other commander, who made preliminary inquiry into the case, or was a member of a previous court martial which tried the accused in respect of the same oence; or (d) is the commanding ocer of the accused, or of the corps to which the accused belongs; or (e) has a personal interest in the case. Rule 39(2) provides that an ocer who is the Commanding Ocer of the accused or of the corps to which the accused

205 belongs or who is an ocer who convened the court or who is the prosecutor or a witness for the prosecution and who has a personal interest in the case, is not eligible for serving on a general or district Court Martial. There are four kinds of court martials specied in Section 108 of the Army Act, 1959. These are: (a) General Courts Martial; (b) District Courts Martial (c) Summary General Courts Martial; (d) Summary Courts Martial Section 116 of the said Act says that a summary court martial may be held by the commanding ocer of any corps or department or detachment of the regular Army, and he shall alone constitute the court. It further provides that the proceedings shall be attended throughout by two other persons who shall be ocers or junior commissioned ocers or one of either, and who shall not as such, be sworn or armed. In the instant case a summary court martial was held by the Commanding Ocer, Major P.S. Mahant in accordance with the provisions of Section 116 of the Army Act. The Commanding Ocer of the Corps, Department of Detachment of the Regular Army to which the appellant belongs, is quite competent in accordance with the provisions of Section 116 of the said Act and as such the constitution of the summary court martial by the Commanding Ocer of the Corps cannot be questioned as illegal or incompetent. It is neither a general court martial nor a district court martial where the appellants case was tried and decided. In case of general court martial or district court martial Rule 39(2) of the Army Rules, 1954 is applicable and the Commanding Ocer is not competent to convene general or district court martial. The summary court martial was held by the Commanding Ocer of the corps, Major P.S. Mahant and there are two other ocers including Capt. K.J. Singh and another ocer to attend the proceedings. In such circumstances, the summary court martial having been convened by the Commanding Ocer of the corps according to the provisions of the Army Act, 1950, the rst submission made on behalf of the appellant fails. Chapter 6 of the Army Act species the oences and also the punishments for such offences. Section 39(a) species that to be absent without leave constitutes an oence and Section 71(e) of the said Act provides dismissal from service as one of the punishments for such an oence. The appellant undoubtedly absented himself from duty without taking any leave from the lines as required under the Army Act. The appellant was charge-sheeted for the said oence and he was tried by a summary court martial convened by the Commanding Ocer and after giving him due opportunity it was held that the appellant was previously punished also for the oence of absence from duty on four occasions and there was a red ink entry. Considering all this in the summary court martial proceedings he was convicted and sentenced to the punishment of dismissal from service. The submission that the pun-

206

Vidya Prakash v. Union Of India 1988 before the Chief of the Army Sta (Competent Authority), Army Headquarters, New Delhi that he raised an objection to the presiding of Major P.S. Mahant as Judge of the court martial proceedings. It has been rightly held by the High Court that this is an after-thought and as such this submission cannot be permitted to be made by the appellant after the court martial proceedings were completed and the order of dismissal from service was made. As regards the other objection that he was directed by Capt. K.J. Singh to keep his mouth shut, it is also without any substance in as much as it appears from the summary of the evidences recorded that the appellant in fact cross-examined the prosecution witnesses. It is also evident from the judgment of the Delhi High Court that the appellant admitted his guilt of absenting from duty without taking any leave. Considering all these facts and circumstances, the judgment and order passed by the High Court of Delhi appears to us as unassailable. We, therefore, dismiss the appeal and arm the judgment and order of the High Court. There will be no order as to costs. N.V.K. Appeal dismissed.

ishment is disproportionate to charge is wholly unsustainable. The summary court martial constituted by Major P.S. Mahant after considering the evidences has found the appellant guilty of the alleged charge and awarded the said punishment in accordance with the provisions of the Army Act. As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality. It has been urged on behalf of the appellant that he raised an objection to Major P.S. Mahant to preside over the summary court martial. It has also been urged that at the time of taking evidence of the witnesses, the appellant was asked to keep his mouth shut and as such the appellant could not cross-examine the witnesses examined on behalf of the prosecution, thereby the principles of natural justice have been violated. It appears that the appellant has not led any objection before the summary court martial objecting to the presiding of the court martial proceedings by Major P.S. Mahant nor any such objection had been taken in the writ petition moved before the High Court. It is for the rst time in the appeal which the appellant led

Chapter 14

Lt Col K D Gupta v. Unon of India 1988

LT. COL. K.D. GUPTA v. pointed as a Second Lieutenant. He UNION OF INDIA & ORS rose to the level of Lt. Colonel on PETITIONER: LT. COL. K.D. 27th February, 1975. In March, 1976 he was directed to report to the MilGUPTA itary Hospital for his psychiatric exv. amination, where his medical clasRESPONDENT: UNION OF IN- sication was reduced from shape-I DIA & ORS to shape-III, and he was posted as GLO and treated as Major. There DATE OF JUDGMENT20/04/1988 BENCH: MISRA RANGNATH was however no specic order reducBENCH: MISRA RANGNATH ing him in rank. DUTT, M.M. (J) CITATION: 1988 AIR 1178 1988 SCR (3) 646 1988 SCC Supl. 347 JT 1988 (2) 199 1988 SCALE (1)791 ACT: Army Act, 1950: Section 20, 191 and 192 and Special Army Instruction No. 1 dated January 9, 1974 Army Ocer- Subjected to frequent medical examinationDowngrading and upgrading between shape-I and shape-III-Treated to have been reduced in rankWhether justied? HEADNOTE: The appellant was granted a permanent Commission in the Indian Army in 1958 and apIn December, 1976, appellants Classication was upgraded to shape II and in September, 1977 to shapeI. But it was decided that he should be subjected to special review before restoration of his rank. In a special report the Brigade Commander recorded appreciation of the appellants work, and recommended his promotion as Lt. Colonel. But the Army Headquarters directed the appellant to the Military Hospital for further examination on the ground that an earlier incident of 1963 had been overlooked when the appellant was graded as shape-I. On this ex-

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Lt Col K D Gupta v. Unon of India 1988 cal category shall be taken as being continued to be shape-I from 1977 and on that basis his promotional entitlements shall be nalised by the respondents within three months hence. It is open to the respondents to release the appellant from service after this has been done. [655F] 2. The report of the Expert Committee makes it clear that there was no justication for the appellant to be subjected to psychiatric test in 1978 following which he was recategorised as shape-II. [654G] 3. This subject of categorisation on the basis of psychiatric test is technical and should ordinarily be left to experts available in the Defence Department and the guidelines indicated by the Department should be followed. This Court has no intention to disturb the discipline of the Defence Department, but on the basis of material available on the record and on the basis of the report of the Committee of Experts, the appellant is entitled to limited relief. Though there was no order reducing him from the rank of Acting Lieutenant Colonel to Major, he was treated as having been so reduced. Then followed the frequent psychiatric examinations without any real justication. This recategorisation, in these circumstances, was without any justication. [654H; 655A-B] [Reiterating that it would like the discipline of the Defence Department to be maintained by itself in the interest of the nation, this Court observed that this case may not be taken as a precedent.] [655FG] JUDGMENT: CIVIL APPEL-

amination, the appellant was permanently downgraded as shape-II. In 1980, the appellant led a writ petition in this Court, challenging the action of Army Headquarters and his downgrading. This Court directed that he should be restored to the rank of Acting Lieutenant Colonel from the date he was reverted and that his claims to advancement, pay, arrears of pay, etc. should be considered and disposed of within six months (See 1984 (1) SCC 153). After lodging his claims, the appellant waited for a reasonable time and then led a writ petition in the High Court. The respondent contended that there was nothing wrong in the recategorisation and the directions of the Supreme Court had been fully complied with. The High Court dismissed the writ petition. In this appeal by special leave, the appellant contended that a prejudicial approach developed against him in the Headquarters establishment without any justication and he had been unduly subjected to psychiatric examination from time to time, and on the basis of the records built up against him adverse opinion had been forthcoming which resulted in recategorisation from shape-I to shape-II. To remove the apprehension of bias, this Court directed that the appellant may be examined by a Board consisting of three Experts with an outsider as Chairman. After considering the report of the Experts Committee this Court allowed the appeal in part and, HELD: 1. The appellants medi-

209 LATE JURISDICTION: Civil Appeal No. 1702 of 1987 from the Judgment and order dated 31.3.1987 of the Allahabad High Court in Civil Misc. Writ Petition No. 5702 of 1985. Petitioner in-person (Lt. Col. K.D. Gupta) Kuldeep Singh, Additional Solicitor General, C.V. Subba Rao and Pramod Swarup for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal is by special leave and is directed against the judgment of the Allahabad High Court dismissing the writ application of the appellant. He was granted a permanent Commission in the Indian Army in 1958 and was initially appointed as a Second Lieutenant. He obtained successive promotions to the ranks of Lieutenant, Captain and Major. In December, 1974, he was selected for promotion to the rank of acting Lt. Colonel and was so promoted with eect from 27th February, 1975. From the following year, the appellant came to face a series of set backs in his service. On March 22, 1976, his Brigade Commander directed the appellant to report to the Ocer Commanding, Military Hospital, Kirkee for his psychiatric examination. He was examined by Lt. Colonel Mukherjee, specialist in psychiatry on 23rd March, 1976 and by Surgeon Commodore Dnetto, Psychiatry Consultant to the Indian Navy on the 26th March, 1976. On the basis of their reports, the appellants medical classication was reduced from Shape-I to Shape III by order dated August 13, 1976. By order dated November 16, 1976, the appellant was posted as GLO (Major/Captain) 152, G.L. Sec. Type Vice Captain I.K. Bedi, a post ordinarily held by a Major or Captain. Though there was no specic order reducing the appellant in rank from Acting Lt. Colonel to that of Major, he was treated as Major. On December 10, 1976, appellants classication was upgraded to Shape-II and on a second medical review on September 2, 1977 to Shape-I. His authorities, however, decided the appellant to be subjected to Special Review before restoration of the rank of Acting Lt. Colonel and on October 31, 1977, required the Brigadier Commander to initiate a special report and submit it to the Headquarters. The Brigade Commander recorded appreciation of the appellants work and recommended his promotion as Lt. Colonel. Yet, the Army Headquarters by letters dated October 12 and November 27, 1978, directed the appellant to be sent to the Military Hospital at Pune for further examination by the psychiatry consultant. It was indicated by way of justication for such requirement that when the appellant was graded as Shape I, an earlier incident of 1963 had been overlooked. On such examination the appellant was permanently downgraded as Shape II. The appellant led an application under Article 32 being Writ Petition No. 5302 of 1980 challenging these actions and his downgrading. A two-Judge bench of this Court by judgment dated August 10, 1983, allowed the same. This Court stated: According to the petitioner, this was done entirely without any basis and that even the clin-

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Lt Col K D Gupta v. Unon of India 1988 such as, consideration of the petitioners further claims to advancement, pay, arrears of pay, etc., will have to be considered by the authority and it is directed that these claims may be considered and disposed of within a period of six months from today. The appellant waited for a reasonable time after lodging his claim and ultimately went before the Allahabad High Court by ling an application under Article 226 of the Constitution being Writ Petition No. 5702 of 1985. Before the High Court he asked for quashing of the proceedings of the Review Medical Board dated 11th January, 1984, and for a declaration that he should be treated as belonging to medical category ShapeI for all purposes without interruption since 2nd September, 1977. He also asked for an appropriate posting considering his entitlement and other service benets. The claim was resisted by the respondents on the ground that there was nothing wrong in the recategorisation and the directions of the Supreme Court had been fully complied with and the appellant has no subsisting grievance. On 31st March, 1987, the High Court dismissed the petition. This appeal has been led after obtaining the special leave. The appellant as on the earlier occasion argued the appeal in person and began his arguments by contending that the respondents were guilty of not giving eect to the directions contained in the judgment of this Court. When we heard the appellant, we realised how very correct the observation of Chinnappa Reddy, J., where he re corded in the judgment of this Court were: As usual

ical reports would reveal that the petitioner was perfectly t. We do not desire to go into these claims of the petitioner since we are satised on the material placed before us that even the very reduction of the petitioners rank in 1976 from Acting Lieutenant Colonel to Major was bad. Shri Abdul Khader, learned counsel for the respondents explained to us that the petitioner had been reverted from the rank of Acting Lieutenant Colonel to Major for three reasons: (i) Reduction in rank had to follow as a matter of course on placement of the petitioner in a lower medical category; (ii) After the latest medical examination in 1978, he was not eligible to be considered for promotion for one year; his earlier reduction in rank was, therefore, justied; and (iii) He performed no duty for six months from March 22, 1976 when he was admitted in the hospital and under the rules, he stood automatically reduced in rank. This Court examined all the three points and ultimately ended by saying: As stated by us earlier, we nd no substance in any one of the reasons mentioned by Shri Abdul Khader on behalf of the respondents for the reversion of the petitioner from the rank of Acting Lieutenant Colonel to Major. The reversion or reduction in rank cannot be justied and it is 650 accordingly quashed. The petitioner is directed to be re stored to the rank of Acting Lieutenant Colonel with eect from the date he was reverted and stripped o the badges indicating his rank. As a result of the restoration of the rank of the Acting Lieutenant Colonel to the petitioner, other consequences,

211 with parties, who argued their cases themselves, he was so full of his facts and grievances, big and small, that we experienced, for quite a while, difculty in getting a picture of the case in its proper frame. After the matter was heard at length, we found that there was absolutely no merit in the contention of the appellant that the respondents were guilty of not complying with the directions of this Court. Learned Additional Solicitor General was, therefore, right in taking the stand that full eect had been given to the directions contained in the judgment of this Court. We would like to recall here that there were several other contentions made in the writ petition which this Court did not go into by saying that even without considering them the appellant was entitled to his relief. The appellant had moved this Court on the earlier occasion under Article 32 of the Constitution but on this occasion he went before the High Court under Article 226. Some of his allegations had already been made in the writ petition before this Court and others related to subsequent events. It is unnecessary to go into several aspects which the appellant in his anxiety had pleaded and even canvassed at the hearing. It is sucient to indicate that the main grievance of the appellant has been against recategorisation from Shape-I to ShapeII. We have already pointed out that the appellant enjoyed Shape-I until 1976 when he was reduced to Shape3 in August 1976. In 1977, he was brought back to Shape-I. According to the appellant, there was absolutely no justication for the direction made in March, 1976 to subject the appellant for psychiatric examination. Similarly when the appellant had been recategorised in September, 1977, as Shape-I, there was no necessity to require him to be subjected to further examination at Pune. He denied the allegation that the incident of 1963 had not been taken into account while recategorising him as Shape-I. According to the appellant, a prejudicial approach developed against him in the Headquarters establishment without any justication and he has been unduly subjected to psychiatric examination from time to time and on the basis of the records built up against him, adverse opinion has been forthcoming. To meet this objection of the appellant and remove apprehension of bias from his mind, in course of hearing, we suggested to learned Additional Solicitor General appearing on behalf of the respondents that the appellant may be examined by a board consisting of three experts specially constituted with an outsider as Chairman. Respondents learned counsel after obtaining instructions accepted the suggestion. By order made on January 25, 1988, this Court directed: In course of hearing of the appeal, we suggested to learned Additional Solicitor General appearing on behalf of the respondent to have a fresh psychiatric evaluation of the appellant by a competent body of psychiatrists by including in the board some in-service and retired Army psychiatrists and some from outside. This was initially opposed by learned Additional Solicitor General by contending that it

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Lt Col K D Gupta v. Unon of India 1988 sure his availability before the Board. The report should be made available to this Court within six weeks from today. The expenses including payment, if any, necessary to be made to any of the experts shall be borne by respondent No. 1. The evaluation shall inter alia indicate whether there was any justication to categorise the appellant as Shape-II after he had been adjudged as Shape-I and as to whether the present categorisation as Shape-II permanent is justied. We place on record that this shall not be treated as a precedent. The Board sent its report dated March 8, 1988, after examining the appellant between 22nd February, 1988 and 8th March, 1988. It evolved the following procedure: 653 (a) Each of the experts to examine the patient, independently at least twice. (b) Each expert to maintain his own observations. (c) Daily observations reports of the patient to be recorded by the Senior Resident Psychiatry. (d) Psychometeric evaluation (e) Perusal of old records of hospitalisation by the three consultants, after the current examination. (f) Maintenance of condentiality of observation by the experts, Sr. Resident and the Psychologist. (g) Review of the unit reports after current examination. (h) Joint review and report by the board on 7th and 8th March, after examining all the material collected above. In paragraph 5 of the Reports the Board observed. (a) During September 1977, when he was recommended to be upgraded to medical category S-I Lt. Col. K.D. Gupta was a symptomatic as per the medical histories examined by the board. The

would be against the discipline of the Defence Department and would create in unwholesome precedent. We adjourned the matter and gave him the opportunity to take instructions from Government and we are happy to note that on the basis of instructions, he has agreed. as a special case, to the constitution of such a board of psychiatrists. Appellant has also been heard in person in the matter. He has made writ submissions by way of an application we have taken into consideration. We direct that a board of psychiatrists consisting of three experts be constituted with the Professor and Head of the Psychiatrist wing of the All India Institute of Medical Sciences, New Delhi, Air Com. K. Sethi Consultant of the Army Hospital at Delhi and Colonel M.A. Bhasin, Senior Advisor in Psychiatry, Southern Command Hospital, Pune. The Head of the Department of the All India Institute of Medical Sciences, as referred to above, shall act as the convenor and chairman of the Board. The Board shall meet at Delhi at such place, date and time as may be xed by the convenor in consultation with the two other members. The Board shall peruse all the records relevant for the purpose of making psychiatric evaluation of the appellant and the respondents shall produce all such records as may be necessary and required for such purpose by the Board including the relevant instructions of the Defence Department in the matter of such assessment. The appellant shall appear before the Board when directed and the respondents shall take steps to en-

213 old medical records do not show any evidence of a psychiatric disorders between September 1977, when he was upgraded to S-I and the review board which took place in November 1978 following which he was recategorised to permanent S-II as per the opinion of that review board on the ground that a relapse could occur in future. (b) The current A043/78 and DG Memorandum 97 (extract attached as appendics A & B), precludes such an individual to be upgraded from medical category S-II to S-I. (c) The natural history of affective psychosis (MDP) ICD 9, is strongly supported of the fact that relapse without 654 any precipitating cause and remission without any medical intervention can take place. We felt that certain elucidation was necessary and requested the presence of the Chairman Professor Mohan in Court. Prof. Mohan appeared in due course and with reference to what was stated in paragraph 5(a), he stated: We were of the view that there was no material in the Medical reports justifying the recategorisation to S-II from S-I apart from apprehensions of relapse. In answer to a question posed by learned Additional Solicitor General, Dr. Mohan stated: During September 1977, when he was recommen- ded to be upgraded to medical category S-I Lt. Colonel K.D. Gupta was a symptomatic as per the medical histories examined by the board. We meant that there was no record in the history of medical papers to suggest that Lt. Col. Gupta was unwell. Upon the suggestion of the learned Additional Solicitor General, Dr. Mohan was asked as to whether he was of the view that the appellant was at the time of the present examination entitled to be categorised as S-I and he answered. If you take the natural history of the illness, it is dicult to say one way or the other, because it is self limiting and phasic and after the phase is over there is no residual decit left. The individual is as normal as anybody else is. The period between attacks varies from one individual to another from months to year . The report and the statement made by Professor Mohan make it clear that there was no justication for the appellant to be subjected to phychiatric test in 1978 following which he was recategorised as S-II. We agree with the learned Additional Solicitor General that the subject is technical and ordinarily should be left to experts available in the Defence Department and the guidelines indicated by the Department should be followed. This Court has no intention to disturb the discipline of the Defence Department but on the basis of material 655 available on the record which had been partly dealt with by this Court on the earlier occasion while disposing of the writ petition, and what we have now found on the basis of the report of examination by the Committee of Experts the appellant has become entitled to limited relief. Though there was no order reducing him from the rank of acting Lieutenent Colonel to Major, he was treated to have been so reduced. Then followed the frequent psychiatric examinations without any real justication. These have constituted the foundation of the appellants grievance. His recategori-

214

Lt Col K D Gupta v. Unon of India 1988 motional entilement is nalised and he is given his dues on such basis as may be determined. The appellant has claimed compensation which we see no basis to grant. The appeal is allowed in part and to the extent that the appellants medical category shall be taken as being continued to be S-I from 1977 and on that basis his promotional entitlement shall be nalised by the respondents within three months hence. We make it clear that it is open to the respondents to release the appellant from service after this has been done. This case may not be taken as a precedent and we reiterate that this Court would like the discipline of the Defence Department to be maintained by itself in the interest of the nation Parties are directed to bear their own costs. G.N. Appeal partly allowed.

sation as S-II in 1978, in these circumstances, was without justication. He is, therefore, entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation continuing as S-I. In a petition dated 2nd April, 1988, the appellant had asked for certain directions and reliefs. The application is confused one inasmuch as arguments, pleadings and prayers have been jumbled up. The appellant, inter alia, has asked for entitlements of promotion in view of promotions earned by his batchmates. We do not think that would be a safe guide but we do hope and trust that the respondents should consider his case for promotion with an open mind on the basis of his continuity in shape-I. He has also indicated in paragraph 8 of that petition that he is prepared to be released from service after his pro-

Chapter 15

Lt Col K.D. Gupta v. Union of India 1989

Lt. Colonel K.D. Gupta v. Union not been complied with. of India & Ors [1989] INSC 112 (31 The Respondents were directed March 1989) to reconsider the case of the appelMisra Rangnath Misra Rangnath lant for promotion on the basis that Dutt, M.M. (J) his medical category continues to be CITATION: 1989 AIR 2071 1989 S-I from 1977, and that the mediSCC (3) 566 JT 1989 (3) 283 1989 cal category would be taken into account if the rules for promotion so SCALE (2)174 require; otherwise not. It was also diACT: rected that the consideration of proArmy Act, 1964: Defence motion would be completed within ServicesPromotionUnlike other four weeks; (See 1988(3) SCR 646). government servants, requisite On behalf of the respondents, it experience, consequent exposure was stated that the promotional enand appropriate review by autitlements of the petitioner had been thorities, indispensableIndividual nalised as per the directions of the capacity and special qualities Court, after re-examining the petiBasis for assessmentLower medtioners case for promotion within ical categorisationEect of for the specied time and since there was purposes of promotionGrant of no failure to comply with the direccompensationRelevant factors tions, no contempt had been comConsiderations thereof. mitted. It was also submitted that HEAD NOTE: the petitioners medical categorisaThe appellant has led a con- tion has nothing to do with the retempt petition against the Respon- fusal to promote him. dents, alleging that the directions Disposing of the petition, dated 20.4.1988 of this Court, have HELD: 1. The judgment of this

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Lt Col K.D. Gupta v. Union of India 1989 suered in dignity and humiliation as a result of being looked down upon by his batch-mates, friends and relatives, has perhaps been suciently met by the appellate judgment which has declared that his lower medical categorisation was unjustied and the petitioner continued to be ShapeI without break from 1977. [368E-G]

Court did clearly proceed on the footing that the lower medical categorisation prejudiced the petitioner in the matter of obtaining appropriate promotions. For the rst time, the respondents have taken the stand in the contempt proceeding that the lower categor- isation has nothing to do with the refusal to accord promotion to the petitioner. The plea now advanced cannot therefore be accepted. [377E-F] 371

3.2 The defence personnel have peculiar incidence of service. Lifes course does not run smoothly for ev2. The .defence services have eryone. their own peculiarities and special Some relevant factors to be conrequirements. The considerations sidered for award of compensation which apply to other government ser- are the duration of time for which vants in the matter of promotion can- the petitioner was subjected to varinot as a matter of course be ap- ous medical checks and hospitalisaplied to defence personnel of the pe- tion, and the consequent suering titioners category and rank. Req- which he underwent, the loss of prouisite experience, conse- quent ex- motional prospects and the fact that poser and appropriate review are in- he would now be obliged to request to dispensable for according promotion, be released from service prematurely. and the petitioner, therefore cannot A total compensation of RS.4 be given promotions as claimed by lakhs would meet the ends of jushim on the basis that his batch-mates tice. The petitioner would not be have earned such promotions. Indientitled to any other claim on these vidual capacity and special qualities heads, but he would be entitled to all on the basis of assessment have to other service benets which an obe found but in the case of the peticer of the Lt. Colonels rank would tioner these are not available. [377Gbe entitled to hold. [378G-H; 379AH; 378A-B] B] Major K.D. Gupta v. Union of 3.1 As regards compensation, the India, [1984] 1 S.C.C. 153 and Lt. petitioner advanced tail claims by Col. K.D. Gupta, v. Union of India, contending that he has suered phys- [1988] 3 SCR 646. referred to. ical and mental torture, loss of repuThis Court directed that the tation and of social acceptance and amount of Rs.4 lakhs be paid to the nancial loss. What promotions petitioner within 2 months and the the petitioner would otherwise have petitioner may be released from the earned would be a matter of specudefence service in accordance with lation and cannot be ascertained at any decision that might be taken on this stage for lack of appropriate dehis request for such release. [379C-D] cisive criteria. His grievance that he

217 372 directed to inform you that your case CIVIL APPELLATE JURIS- has been reexamined in the light of DICTION: Civil Misc. Petition No. the judgment of the Supreme Court of India dated 20th April, 1988. 20065 of 1988. In Civil Appeal No. 1702 of 1987. From the Judgment and Order dated 31.3.1987 of the Allahabad High Court in C.M.W.P. No. 5702 of 1985. Petitioner-in-person. G. Ramaswamy, Additional Solicitor General, C.V.S. Rao and A.K. Srivastava for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. Petitioner, a Lt. Colonel in the Indian Army, has led this application for taking contempt proceeding against the respondents on the allegation that the directions contained in the judgment of this Court, dated 20th April, 1988, in Civil Appeal No. 1702 of 1987 have not been complied with. This Court in the Civil Appeal found that the petitioner was entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation continuing as S-I and directed: The appeal is allowed in part and to the extent that the appellants medical category shall be taken as being continued to be S-I from 1977 and on that basis his promotional entitlement shall be nalised by the respondents within three months hence. After this Courts decision, by a letter dated 17th of June, 1988, the respondents informed the petitioner to the following eect: In this connection, I have been It may kindly be recalled that acting rank of Lt. Col. was granted to you with your original seniority based on the earlier directions of the Honble Court. Substantive 373 rank of Lt. Col. was also granted to you along with your batch-mates. Consequent to the Supreme Courts judgment dated th August, 1983, your case for promotion to the rank of A/Colonel was considered on three occasions viz., July 86, April 87, November 87 and rejected on all the three occasions based on your overall performance and merit of your batch. Your medical category was not taken into consideration as per the laid down procedure. Therefore, upgradation of your medical category from Shape-2 to Shape-I by the Supreme Court vide their orders dated 20th April, 1988, does not warrant reconsideration of your case for promotion because your medical category had not aected your case for promotion to the rank of A/Colonel on any occasion. You failed to make the grade for promotion not on the basis of your medical category but on the basis of your overall performance and merit of your batch Upon notice in this miscellaneous proceeding a counter adavit was led on behalf of the respondents stating that the petition was misconceived and he was not entitled to any relief as claimed. It was stated that the promotional entitlements of the petitioner had been nalised as per

218

Lt Col K.D. Gupta v. Union of India 1989 ACR 84/85 (b) R (Unt) in April, 1987 with ACR 6/85 to 2/86. (c) R (Unt) in November, 1987 with ACR 6/86 to 5/87 The Ocer has been nally superseded for promotion to the rank of acting Colonel based on his overall prole and his medical category was not taken into account during the above three considerations. However, the ocer has been granted the substantive rank of Lt. Colonel w.e.f. 01 August, 1979 vide Gazette Notication No. 1774/87 dated 19th September, 1987. Therefore, no further action is required by the department in pursuance of the judgment of this Honble Court dated 20.4.1988. I state that the petitioner had addressed a demi ocial letter dated 02.5.1988 to the Chief of Army Sta in this regard. The Chief of Army Sta called for the details of the case of the petitioner and the same were placed before the Chief of Army Sta on 03.6.1988. The Chief of Army Sta after considering the note put up to him, directed the oce to intimate the petitioner accordingly. By letter dated 17.6.1983, the oce has informed the petitioner, a copy of which is enclosed herewith. It is, therefore, humbly submitted that the case of the petitioner was considered after the judgment of this Honble Court dated 20th April, 1988 by the Military Secretary of the rank of Lt. General and it was found that it is not neces- sary to send him for selection board as he was already found unt without reference to his medical certicate Shape-II.

the directions of this Court after reexamining the petitioners case for promotion within the specied time and as there was no failure to comply with the directions, no contempt had been committed. The counteradavit proceeded to state: As per the selection procedure explained in the proceeding paragraphs, the medical category of Lt. Col. K.D. Gupta was not taken into cognizance. On receipt of the directions of the Supreme Court dated 20th April, 1988, Lt. Cot. Guptas case for promotion was reexamined. Since the Honble Court had given no such directions to the eect that the case of Lt. Col. Gupta shall be placed before the Selection Board and has only directed that the petitioners promotional entitlements be nalised in view of his continued medical category in Shape-I since 1977, his case was reexamined and nalised and the same was intimated to him vide our letter dated 17th June, 1988. The record of consideration for promotion of the petitioner at the various stages by the Board was directed to be produced before the Court. In a further adavit on behalf of the respondents, Col. Bharucha stated that: By letter dated 26.5. 1988, the Military Secretary observed as under: The Ocer was considered by No. 3 Selection Board for promotion to the acting rank of Colonel and awarded the following: (a) R (Unt) in July 1986 with

219 On 24th of January, 1989, this We nd no substance in any of Court made the following order: the reasons mentioned by Shri AbAfter carefully considering the dul Khader. Shri Khader was unable matter, we direct the respondents to to draw our attention to any rule, orreconsider the case of the appellant der or circular which prescribed that for promotion on the basis that his reduction in rank should inevitably medical category continues to be S-I follow on placement of an ocer in from 1977. The medical category will a lower medical category. In fact it be taken into account if the rules for was conceded by Shri Khader that an promotion so require, otherwise not. ocer whose medical classication is The consideration of promotion will downgraded, will not be reduced in be completed within four weeks from rank on that account, but will contoday ...... We have been informed tinue to hold the same rank as 376 that the petitioners case was consid- before. We are, therefore, unable to ered on the basis of record and he was understand why the petitioner had to be reduced in rank because subsenot found t for any promotion. quent to his promotion, his medical It is relevant to notice at this classication was downgraded. The stage that the petitioner had come second reason given by Shri Khader before this Court on an earlier occathat the petitioner would not be elision by ling writ petition No. 5302 gible to be promoted for a year afof 1980 which was disposed of on Auter the latest medical examination gust 10, 1983 (1984 1 SCC 153). This and, therefore, his earlier reduction Court in its judgment indicated: in rank was justied, is only to be Shri Abdul Khader, learned stated as rejected. When the peticounsel for the respondents explained tioner was promoted, he satised all to us that the petitioner had been re- the requirements including that of verted from the rank of Acting Lt. medical categorisation, if any.. We Colonel to Major for three reasons: nd it impossible to agree with the (i) Reduction in rank had to fol- proposition that since he would be low as a matter of course on place- ineligible to be promoted today, he ment of the petitioner in a lower med- could not have been promoted yesterday when he satised all the reical category; (ii) After the latest medical ex- quirements. The reason really pressed before amination in 1978, he was not elius was the third reason, namely, that gible to be considered for promotion for one year; his earlier reduction in the petitioner had not performed any duty for six months and, therefore, rank was, therefore, justied; and (iii) He performed no duty for six he had to be reduced in rank in acmonths from March 22, 1976 when he cordance with paragraph 5 of Special was admitted in the hospital and un- Army Instruction No. 1 dated Jander the rules, he stood automatically uary 9, 1974. We do not propose to examine the question whether Spereduced in rank.

220

Lt Col K.D. Gupta v. Union of India 1989 ..... on the basis of material available on the record which had been partly dealt with by this Court on the earlier occasion while disposing of the writ petition, and what we have now found on the basis of the result of examination by the Committee of Experts the appellant has become entitled to limited relief. Though there was no order reducing him from the rank of acting Lt.Colonel to Major, he was treated to have been so reduced. Then followed the frequent psychiatric examinations without any real justication. These have constituted the foundation of the appellants grievance. His recategorisation as SII in 1978, in these circumstances, was without justication. He is, therefore, entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation continuing as S-I. The appellant, inter alia, has asked for entitlement to promotion in view of promotions earned by his batchmates. We do not think that would be a safe guide but we do hope and trust that the respondents would consider his case for promotion with an open mind on the basis of his continuity in Shape- I. The judgment of this Court did clearly proceed on the footing that the lower medical categorisation prejudiced the petitioner in the matter of obtaining appropriate promotions. For the rst time, the respondents have taken the stand in the contempt proceeding that the lower categorisation has nothing to do with the refusal to accord promotion to the petitioner. In the circumstances indicated above, the plea

cial Army Instruction No. 1 authorises a reduction in rank for failure to rejoin duties for more than six months since that appears to be the case of the petitioner also. The counter-adavit led in the writ petition and the submissions of counsel advanced at the hearing thereof clearly indicate that the medical category of the petitioner was connected with his entitlement to promotion. In fact in the civil appeal itself the petitioners claim for promotion to higher ranks, keeping the promotions accorded to his batch-mates in view, was challenged on the basis of the petitioners lower medical category. In the adavits led in the civil appeal the respondents never took the stand that entitlement to promotion as claimed by the petitioner had nothing to do with the state of his health physical and mental. If that stand had been adopted, this Court would certainly have gone into that question before directing the petitioners case to be reexamined by a Special Board of Psychiatrists, on the basis of whose report, the petitioner was allowed to be continued in shape-I from 1977 without any break. It is not disputed that the petitioner had in the second round of the litigation mainly pressed for his promotion by contending that his medical categorisation was vitiated. Counsel for the respondents at no stage during the hearing of the appeal advanced the contention that the claim for promotion was not, in any manner, connected with the medical category of the petitioner. That is why this Court in its judgment stated:

221 now advanced cannot be accepted. In fact, Mr. Ramaswamy, Additional Solicitor General, appearing for the respondents being cognizant of this situation stated to us during the hearing of this application that the petitioner has justication to feel aggrieved. He has also indicated in paragraph 8 of that petition that he is prepared to be released from service after his promotional entitlements are nalised and is given his dues on such basis as may be determined. The appellant has claimed compensation which we see no basis The respondents have maintained to grant. that the petitioner has not served in The petitioner also told us in the appropriate grades for the req- course of the hearing of this case that uisite period and has not possessed even if he is not accorded promotions the necessary experience and train- as claimed by him, he should suiting and consequential assessment of ably be compensated and thereafter ability which are a precondition for he should be released from the Army promotion. The defence services on the basis of voluntary retirement. have their own peculiarities and spe- The respondents have also indicated cial requirements. The considera- that his retirement is being processed tions which apply to other govern- separately. ment servants in the matter of proThe question for consideration motion cannot as a matter of course now is as to how the petitioner has be applied to defence personnel of the to be compensated and what should petitioners category and rank. be its measure. The petitioner has, of Requisite experience, consequent exposer and appropriate review are indispensable for according promotion and the petitioner, therefore, cannot be given promotions as claimed by him on the basis that his batch-mates have earned such promotions. Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not available. We nd force in the stand of the respondents and do not accept the petitioners contention that he can be granted promotion to the higher ranks as claimed by him by adopting the promotions obtained by his batch-mates as the measure. course, advanced tall claims by contending that he has suered physical and mental torture, loss of reputation and of social acceptance and nancial loss. What promotions the petitioner would otherwise have earned would be a matter of speculation and cannot be ascertained at this stage for lack of appropriate decisive criteria. His grievance that he suered in dignity and humiliation as a result of being looked down upon by his batch-mates, friends and relatives has perhaps been suciently met by the appellate judgment which has declared that his lower medical categorisation was unjustied and the petitioner continued to be ShapeIn the appellate judgment, this I without break from 1977. Court said: The defence personnel have pecu-

222

Lt Col K.D. Gupta v. Union of India 1989 entitled to. This judgment should serve the petitioner in vindication of his stand and to dispel clouds cast on his physical and mental health by the purported lower medical characterisation and obviously in the event of his being considered for reemployment after retirement his suitability would be considered on the basis of his service records and the judgment of this Court. We direct that the amount of Rs. four lakhs be paid to the petitioner within two months and the petitioner may be released from the defence service in accordance with any decision that may be taken on his request for such release. The contempt proceeding is disposed of with these directions and no order as to costs. G.N. Petition disposed of.

liar incidence of service. Lifes course does not run smoothly for everyone. In the present proceeding which is for contempt, we do not think that we can award compensation under every head of claim. Some of factors relevant for such purpose are the duration of time for which the petitioner was subjected to various medical checks and hospitalisation, and the consequent suering which he underwent, the loss of promotional prospects and the fact that he would now be obliged to request to be released from service prematurely. We are of the view that a total compensation of Rs. four lakhs would meet the ends of justice. This would obviously mean that the petitioner would not be entitled to any other claim on these heads but we make it clear that he would be entitled to all other service benets which an ocer of the Lt. Colonels rank, which the petitioner admittedly holds, would be

Chapter 16

S N Mukherjee v. Union Of India 1990

S.N. Mukherjee v. Union Of India on 28 August, 1990 Equivalent citations: 1990 AIR 1984, 1990 SCR Supl. (1) 44 Bench: Agrawal, S.C. PETITIONER: S.N. MUKHERJEE v. RESPONDENT: UNION OF INDIA BENCH: 1990 SCC (4) 594 JT 1990 (3) 630 1990 SCALE (2)383 CITATOR INFO : RF 1991 SC 564 (6) R 1992 SC1256 (7,9,11,14) ACT: Army Act 1950: Section 164CourtMartialPost conrmation petitionCentral Government Whether bound to give reasons. HEADNOTE:

DATE OF JUDGMENT28/08/1990

The Appellant was ociating as a Major though he held a substanAGRAWAL, S.C. (J) tive rank of Captain as a permanent BENCH: Commissioned Ocer of the army AGRAWAL, S.C. (J) when on December 27, 1974 he took MUKHARJI, SABYASACHI over as the Ocer Commanding 38 Coy. A.S.C. (Sup) Type A attached (CJ) to the Military Hospital, Jhansi. In KANIA, M.H. August, 1975 the Appellant went SHETTY, K.J. (J) to attend a training course and reSAIKIA, K.N. (J) turned in the rst week of November. 1975. In his absence Captain CITATION: 1990 AIR 1984 1990 SCR Supl. G.C. Chhabra was commanding the unit of the appellant and he submit(1) 44 ted a Contingent Bill dated Septem-

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S N Mukherjee v. Union Of India 1990 the charges. The General Court Martial on November 29, 1978 found him guilty of rst and third charge and awarded the sentence of dismissal from service. Thereupon the appellant submitted petition dated December 18, 1978 to the Chief of Army Sta praying that the ndings of the General Court Martial be not conrmed. The Chief of the Army Sta by his order dated May 11, 1979 conrmed the ndings and sentence of the General Court Martial. The appellant thereafter submitted a post-conrmation petition under section 164(2) of the Act. This was rejected by the Central Government by order dated May 6, 1980. Thereupon the appellant led a writ petition in the High Court of Delhi which was dismissed in limine. Hence this appeal by special leave directed to be heard by the Constitution Bench for the reason that it involves the question as to whether it was incumbent for the Chief of the Army Sta, while conrming the ndings and sentence of the General Court Martial and for the Central Government while rejecting the post-conrmation petition of the appellant to record their reasons for the orders passed by them. Dismissing Court, the appeal, this

ber 25, 1975 for Rs.16,280 for winter liveries of the depot civilian chowkidars and sweepers. The said Bill was returned by the Controller of Defence Accounts (CDA) with certain objections. Thereupon the appellant submitted a fresh contingent Bill dated December 25, 1975 for a sum of Rs.7,029.57. In view of the wide dierence in the two Contingent Bills, the CDA reported the matter to the Headquarters for investigation and a Court Enquiry blamed the appellant for certain lapses. After considering the said report of the Court of Enquiry the General Ocer Commanding, M.P., Bihar and Orissa recommended that severe displeasure (to be recorded) of the General Ocer Commanding-in-Chief of the Central Command be awarded to the appellant. The General Ocer Commanding-in-Chief Central Command, however. did not agree with the said opinion and by order dated August 26, 1977 directed that disciplinary action be taken against the appellant for the lapses. Pursuant to the said order a charge sheet dated July 20, 1978 containing three charges was served on the appellant and it was directed that he be tried by General Court Martial. The rst charge was, doing of a thing with intent to defraud under section 52(f) of the Act. The second charge was alternative to the rst charge i.e. committing an act prejudicial to good order and military discipline under section 63 of the Act and the third charge was also in respect of oence under section 63 of the Act. the appellant pleaded not guilty to

HELD: The requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be

225 as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. [62H; 63A-B] The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it arms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge. [63B] Except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. The provisions contained in the Army Act, 1950 and the Army Rules, 1954 negative a requirement to give reasons for its ndings and sentence by a Court Martial and reasons are not required to be recorded in cases where the Court Martial makes a recommendation to mercy. Similarly, reasons are not required to be recorded for an order passed by the conrming authority conrming the ndings and sentence recorded by the Court Martial as well as for the order passed by the Central Government dismissing the post-conrmation petition. [70E-F] the Army Act enables a person aggrieved by an order passed by a Court Martial to present a petition against the same. The expression order under sub-section (1) does not include a nding or sentence of the Court Martial and in so far as the nding and sentence of the Court Martial is concerned the only remedy that is available to a person aggrieved by the same is under subsection (2) of section 164 of the Army Act and the said remedy can be invoked only after the nding or sentence has been conrmed by the conrming authority and not before the conrmation of the same. [72B; D-E] Though a person aggrieved by the nding or sentence of a Court Martial has no right to make a representation before the conrmation of the same by the conrming authority, but in case such a representation is made by a person aggrieved by the nding or sentence of a Court Martial it is expected that the conrming authority shall give due consideration to the same while conrming the nding and sentence of the Court Martial. [72H; 73A]

Som Datt Datta v. Union of India & Ors., [1969] 2 S.C.R. 177; Bhagat Raja v. The Union of India & Ors., [1967] 3 S.C.R. 302; Mahabir Prasad Santosh Kumar v. State of U.P. & Ors., [1971] 1 S.C.R. 201; Woolcombers of India Ltd. v. Woolcombers Workers Union & Ant., [1974] I S.C.R. 503; Siemens Engineering & Manufacturing Co. of India Ltd. v. Union of India & Anr., [1976] Suppl. S.C.R. 489; Phelps Sub-section (1) of section 164 of Dodge Corporation v. National

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S N Mukherjee v. Union Of India 1990 721; A.K. Kraipak & Ors. v. Union of India & Ors., [1970] 1 S.C.R. 457; R. v. Deputy Industrial Injuries Commissioner ex P. Moore, [1965] 1 Q.B. 456 and Mahon v. Air New Zealand Ltd., [1984] A.C. 648, referred to. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 417 of 1984. From the Judgment and Order dated 12.8.1981 of the Delhi High Court in C.W.P. No. 1835 of 1981. A.K. Ganguli, A. Sharan for the Appellant. Kapil Sibal, Additional Solicitor General, Raju Ramachandran, Rajiv Dhawan, C.V. Subba Rao and Mrs. Sushma Suri for the Respondents. T. Prasad for the Secretary, Ministry of Defence. The Judgment of the Court was delivered by S.C. AGRAWAL, J. This appeal, by special leave, is directed against the order dated August 12, 1981, passed by the High Court of Delhi dismissing the writ petition led by the appellant. In the writ petition the appellant had challenged the validity of the nding and the sentence recorded by the General Court Martial on November 29, 1978, the order dated May 11, 1979, passed by the Chief of Army Sta conrming the ndings and the sentence recorded by the General Court Martial and the order dated May 6, 1980, passed by the Central Government dismissing the petition led by the appellant under Section 164(2) of the Army Act, 1950 (hereinafter referred to as the

Labour Relations Board, [1940] 85 Law Edn. 1271 at p. 1284; Securities and Exchange Commission v. Chenery Corporation, [1942] 87 Law Ed. 626 at p. 636; John T. Dunlop v. Waiter Bachewski, [1975] 44 Law Ed. 2 377; Regina v. Gaming Board for Great Britain, Exparte Benaim & Khaida, [1970] 2 Q.B. 417 at p. 431; Mc Innes v. Onslow-Fane & Anr., [1978] 1 W.I..R. 1520 at p. 1531; Breen v. Amalgamated Engineering Union & Ors., [1971] 2 Q.B. 175; Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] I.C.R. 120; Regina v. Immigration Appeal Tribunal Ex Parte Khan (Mahmud), [1983] Q.B. 790; Pure Spring Co. Ltd. v. Minister of National Revenue, 47 [1947] 1 D.L.R. 501 at p. 539; Re R.D.R. Construction Ltd. & Rent Review Commission, [1983] 139 D.L.R. 3d. 168; Re Yarmouth Housing Ltd. & Rent Review Commission, [1983] 139 D.L.R. (3d). 544; Osmond v. Public Service Board of New South Wales, [1985] 3 NSWLR 447; Public Service Board of New South Wales v. Osmond, [1986] 63 A.L.R. 559; M/s. Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala & Ors., [1962] 2 S.C.R. 339; Madhya Pradesh Industries Ltd. v. Union of India & Ors., [1966] 1 S.C.R. 466; Tranvancore Rayon Ltd. v. Union of India, [1970] 3 S.C.R. 40; Tarachand Khatri v. Municipal Corporation of Delhi & Ors., [1977] 2 S.C.R. 198; Raipur Development Authority & Ors. v. M/s. Chokhamal Contractors & Ors., [1989] 2 S.C.C.

227 Act). 48 The appellant held a permanent commission, as an ocer, in the regular army and was holding the substantive rank of Captain. He was ofciating as a Major. On December 27, 1974, the appellant took over as the Ocer Commanding of 38 Coy. ASC (Sup) Type A attached to the Military Hospital, Jhansi. In August 1975, the appellant had gone to attend a training course and he returned in the rst week of November 1975. In his absence Captain G.C. Chhabra was the ocer commanding the unit of the appellant. During this period Captain Chhabra submitted a Contingent Bill dated September 25, 1975 for Rs.16,280 for winter liveries of the depot civilian chowkidars and sweepers. The said Contingent Bill was returned by the Controller of Defence Accounts (CDA) Meerut with certain objections. Thereupon the appellant submitted a fresh Contingent Bill dated December 25, 1975 for a sum of Rs.7,029.57. In view of the dierence in the amounts mentioned in the two Contingent Bills, the CDA reported the matter to the headquarters for investigation and a Court of Enquiry blamed the appellant for certain lapses. The said report of the Court of Enquiry was considered by the General Ocer Commanding, M.P., Bihar and Orissa Area, who, on January 7, 1977 recommended that severe displeasure (to be recorded) of the General Ocer Commanding-inChief of the Central Command be awarded to the appellant. The General Ocer Commanding-in-Chief. Central Command did not agree with the said opinion and by order dated August 26, 1977, directed that disciplinary action be taken against the appellant for the lapses. In view of the aforesaid order passed by the General Ocer Commanding-in-Chief, Central Command, a charge sheet dated July 20. 1978, containing three charges was served on the appellant and it was directed that he be tried by General Court Martial. The rst charge was in respect of the oence under Section 52(f) of the Act, i.e. doing a thing with intent to defraud. the second charge was alternative to the rst charge and was in respect of oence under Section 63 of the Act, i.e. committing an act prejudicial to good order and military discipline and the third charge was also in respect of oence under Section 63 of the Act. The appellant pleaded not guilty to the charges. The prosecution examined 22 witnesses to prove the charges. The General Court Martial. on November 29, 1978, found the appellant not guilty of the second charge but found him guilty of the rst and the third charge and awarded the sentence of dismissal from service. The appellant submitted a petition dated December 18, 1978, to the Chief of Army Sta wherein he prayed that the ndings and the sentence of the General Court Martial be not conrmed. The ndings and sentence of the General Court Martial were conrmed by the Chief of the Army Sta by his order dated May 11, 1979. The appellant, thereafter, sub-

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S N Mukherjee v. Union Of India 1990 gal since no reason had been given in support of the order by the Chief of the Army Sta and that the Central Government had also not given any reason while dismissing the appeal of the petitioner in that case under Section 165 of the Act and that the order of the Central Government was also illegal. This contention was negatived. After referring to the provisions contained in Sections 164, 165 and 162 of the Act this Court pointed that while Section 162 of the Act expressly provides that the Chief of the Army Sta may for reasons based on the merits of the case set aside the proceedings or reduce the sentence to any other sentence which the Court might have passed, there is no express obligation imposed by Sections 164 and 165 of the Act on the conrming authority or upon the Central Government to give reasons in support of its decision to conrm the proceedings of the Court Martial. This Court observed that no other section of the Act or any of the rules made 50 therein had been brought to its notice from which necessary implication can be drawn that such a duty is cast upon the Central Government or upon the conrming authority. This Court did not accept the contention that apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, there is a general principle or a rule of natural justice that a statutory tribunal should always and in every case give reasons m support of its decision.

mitted a post-conrmation petition under Section 164(2) of the Act. The said petition of the appellant was rejected by the Central Government by order dated May 6, 1980. The appellant thereupon led the writ petition in the High Court of Delhi. The said writ petition was dismissed, in limine, by the High Court by order dated August 12, 1981. The appellant approached this Court for grant of special leave to appeal against the said order of the Delhi High Court. By order dated January 24, 1984, special leave to appeal was granted by this Court. By the said order it was directed that the appeal be listed for nal hearing before the Constitution Bench. The said order does not indicate the reason why the appeal was directed to be heard by the Constitution Bench. The learned counsel for the appellant has stated that this direction has been given by this Court for the reason that the appeal involves the question as to whether it was incumbent for the Chief of the Army Sta, while conrming the ndings and the sentence of the General Court Martial, and for the Central Government, while rejecting the post-conrmation petition of the appellant, to record their reasons for the orders passed by them. We propose to deal with this question rst. It may be mentioned that this question has been considered by this Court in Som Datt Datta v. Union of India and Others, [1969] 2 S.C.R. 177. In that case it was contended before this Court that the order of the Chief of Army Sta conrming the proceedings of the Court Martial under Section 164 of the Act was ille-

229 Shri A.K. Ganguli has urged that the decision of this Court in Som Datt Dattas case (supra) to the extent it holds that there is no general principle or rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision needs reconsideration inasmuch as it is not in consonance with the other decisions of this Court. In support of this submission Shri Ganguli has placed reliance on the decisions of this Court in Bhagat Raja v. The Union of India and Others, [1967] 3 SCR 302; Mahabir Prasad Santosh Kumar v. State of U.P. and Others, [1971] 1 SCR 201; Woolcombers of India Ltd. v. Woolcombers Workers Union and Another, [1974] 1 S.C.R. 503 and Siemens Engineering & Manufacturing Co. of India Limited v. Union of India and Another, [1976] Suppl. S.C.R. 489. The learned Additional Solicitor General has refuted the said submission of Shri Ganguli and has submitted that there is no requirement in law that reasons be given by the conrming authority while conrming the nding or sentence of the Court Martial or by the Central Government while dealing with the postconrmation petition submitted under Section 164 of the Act and that the decision of this Court in Som Datt Dattas case (supra) in this regard does not call for reconsideration. The question under consideration can be divided into two parts: (i) Is there any general principle of law which requires an administrative authority to record the reasons for its decision; and (ii) If so, does the said principle apply to an order conrming the ndings and sentence of a Court Martial and post-conrmation proceedings under the Act? On the rst part of the question there is divergence of opinion in the common law countries. The legal position in the United States is dierent from that in other common law countries. 51 In the United States the courts have insisted upon recording of reasons for its decision by an administrative authority on the premise that the authority should give clear indication that it has exercised the discretion with which it has been empowered because administrative process will best be vindicated by clarity in its exercise Phelps Dodge Corporation v. National Labour Relations Board, [1940] 85 Law Edn. 1271 at P. 1284. The said requirement of recording of reasons has also been justied on the basis that such a decision is subject to judicial review and the Courts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review and that the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained. Securities and Exchange Commission v. Chenery Corporation, [1942] 87 Law Ed. 626 at P. 636. In John T. Dunlop v. Waiter Bachowski, [1975] 44 Law Ed. 2 377) it has been observed that a statement of reasons serves

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S N Mukherjee v. Union Of India 1990 ley) Ltd. v. Crabtree, [1974] ICR 120 Sir John Donaldson, as President of the National Industrial Relations Court, has observed that: 52 failure to give reasons amounts to a denial of justice. In Regina v. Immigration Appeal Tribunal Ex parte Khan (Mahmud), [1983] QB 790 Lord Lane, CJ., while expressing his reservation on the proposition that any failure to give reasons means a denial of justice, has observed: A party appearing before a tribunal is entitled to know either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. (P. 794) The Committee on Ministers Powers (Donoughmore Committee) in its report submitted in 1932, recommended that any party aected by a decision should be informed of the reasons on which the decision is based and that such a decision should be in the form of a reasoned document available to the parties aected. (P. 100) The Committee on Administrative Tribunals and Enquiries (Franks Committee) in its report submitted in 1957, recommended that decisions of tribunals should be reasoned and as full as possible. The said Committee has observed:

purposes other than judicial review inasmuch as the reasons promotes thought by the authority and compels it to cover the relevant points and eschew irrelevancies and assures careful administrative consideration. The Federal Administrative Procedure Act, 1946 which prescribed the basic procedural principles which are to govern formal administrative procedures contained an express provision (Section g(b) ) to the eect that all decisions shall indicate a statement of ndings and conclusions as well as reasons or basis the, for upon all the material issues of fact, law or discretion presented on the record. The said provision is now contained in Section 557(c) of Title 5 of the United States Code (1982 edition). Similar provision is contained in the state statutes.

In England the position at Common law is that there is no requirement that reasons should be given for its decision by the administrative authority (See: Regina v. Gaming Board for Great Britain Ex Party Benaim and Khaida, [1970] 2 Q.B. 417 at p. 431 and McInnes v. OnslowFane and Another, [1978] 1 W.L.R. 1520 at p. 1531). There are, however, observations in some judgments wherein the importance of reasons has been emphasised. In his dissenting judgment in Breen v. AmalgaAlmost all witnesses have advomated Engineering Union and Othcated the giving of reasoned decisions ers, [1971] 2 Q.B. 175 Lord Denning by tribunals. We are convinced that M.R., has observed that: if tribunal proceedings are to be fair the giving of reasons is one of to the citizen reasons should be given the fundamental of good administra- to the fullest practicable extent. A tion. (P. 191) decision is apt to be better if the In Alexander Machinery (Dud- reasons for it have to be set out in

231 writing because the reasons are then more likely to have been properly thought out. Further, a reasoned decision is essential in order that, where there is a right of appeal, the applicant can assess whether he has good grounds of appeal and know the case he will have to meet if he decides to appeal. (Para 98) The recommendations of the Donoughmore Committee and the Franks Committee led to the enactment of the Tribunals and Enquiries Act, 1958 in United Kingdom. Section 12 of that Act prescribed that it shall be the duty of the Tribunal or Minister to furnish a statement, either written or oral, of the reasons for the decision if requested, on or before the giving of notication of the decision to support the decision. The said Act has been replaced by the Tribunals and Enquiries Act, 1971 which contains a similar provision in Section 12. This requirement is. however, conned. in its applications to tribunals and statutory authorities specied in Schedule I to the said enactment. In respect of the tribunals and authorities which are not covered by the aforesaid enactment, the position, as prevails at common law, applies. The Committee of JUSTICE in its Report, Administration Under Law, submitted in 1971, has expressed the view: No single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions. The law in Canada appears to be the same as in England. In Pure Spring Co. Ltd. v. Minister of National Revenue, [1947] 1 DLR 501 at P. 539 it was held that when a Minister makes a determination in his discretion he is not required by law to give any reasons for such a determination. In some recent decisions, however, the Courts have recognised that in certain situations there would be an implied duty to state the reasons or grounds for a decision (See: Re R D.R. Construction Ltd. And Rent Review Commission, [1983] 139 DLR (3d) 168) and Re Yarmouth Housing Ltd. And Rent Review Commission, [1983] 139 DLR (3d) 544. In the Province of Ontario the Statutory Powers Procedure Act, 1971 was enacted which provided that a tribunal shall give its nal decision, if any, in any proceedings in writing and shall give reasons in writing therefore if requested by a party. (Section 17). The said Act has now been replaced by the Statutory Powers and Procedure Act, 1980, which contains a similar provision. The position at common law is no dierent in Australia. The Court of Appeal of the Supreme Court of New South Wales in Osmond v. Public service Board of New South Wales, [1985] 3 NSWLR 447) had held that the common law requires those entrusted by Statute with the discretionary power to make decisions which will aect other persons to act fairly in the performance of their statutory functions and normally this will require an obligation to state the reasons for their deci-

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S N Mukherjee v. Union Of India 1990 fected by a decision an adequate opportunity of being heard. is bound to furnish reasons for the exercise of a statutory decision making power. (P. 572). The learned Judge has further observed that the common law rules of natural justice or procedural fair play are neither standardized nor immutable and that their content may vary with changes in contemporary practice and standards. In view of the statutory developments that have taken place in other countries to which reference was made by the Court of Appeal, Deane, J. has observed that the said developments are conducive to an environment within which the courts should be less reluctant than they would have been in times past to discern in statutory provisions a legislative intent that the particular decision maker should be under a duty to give reasons. (P. 573). This position at common law has been altered by the Commonwealth Administrative Decisions (Judicial Review) Act. 1977. Section 13 of the said Act enables a person who is entitled to apply for review the decision before the Federal Court to request the decision maker to furnish him with a statement in writing setting out the ndings on material questions of fact, referring to the evidence or other material on which those ndings were based and giving the reasons for the decision and on such a request being made the decision maker has to prepare the statement and furnish it to the persons who made the request as soon as practicable and in any event within

sions. The said decision was overruled by the High Court of Australia in Public Service Board of New South Wales v. Osmond, [1986] 63 ALR 559 and it has been held that there is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely aect the interests or defeat the legitimate or reasonable expectations, of other persons. Gibbs CJ., in his leading judgment, has expressed the view that the rules of natural justice are designed to ensure fairness in the making of a decision and it is dicult to see how the fairness of an administrative decision can be aected by what is done after the decision has been made. The learned Chief Justice has. however. observed that even assuming that in special circumstances natural justice may require reasons to be given, the present case is not such a case. (P. 568). Deane J., gave a concurring judgment, wherein after stating that the exercise of a decision making power in a way which adversely aects others is less likely to be. or appear to be, arbitrary if the decision maker formulates and provides reasons for his decision, the learned Judge has proceeded to hold that the stage has not been reached in this country where it is a general prima facie requirement of the common law rules of natural justice or procedural fair play that the administrative decision maker having extended to persons who might be adversely af-

233 28 days. The provisions of this Act are not applicable to the classes of decisions mentioned in Schedule I to the Act. A similar duty to give reasons has also been imposed by Sections 28 and 37 of the commonwealth Administrative Appeals Tribunal Act. 1975. In India the matter was considered by the Law Commission in the 14th Report relating to reform in Judicial Administration. The Law Commission recommended: In the case of administrative decisions provision should be made that they should be accompanied by reasons. The reasons will make it possible to test the validity of these decisions by the machinery of appropriate writs. (Vol. II P. 694). No laws has, however, been enacted in pursuance of these recommendations, imposing a general duty to record the reasons for its decision by an administrative authority though the requirement to give reasons is found in some statutes. The question as to whether an administrative authority should record the reasons for its decision has come up for consideration before this Court in a number of cases. In M/s. Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala and Others, [1962] 2 SCR 339, a Constitution Bench of this Court. while dealing with an order passed by the Central Government in exercise of its appellate powers under Section 111(3) of the Companies Act, 1956 in the matter of refusal by a company to register the transfer of shares, has held that there was no proper trial of the appeals before the Central Government since no reasons had been given in support of the order passed by the Deputy Secretary who heard the appeals. In that case it has been observed: If the Central Government acts as a tribunal exercising judicial powers and the exercise of that power is subject to the jurisdiction of this Court under Article 136 of the Constitution we fail to see how the power of this Court can be eectively exercised if reasons are not given by the Central Government in support of its order. (P. 357) In Madhya Pradesh Industries Ltd. v. Union of India and Others, [1966] 1 S.C.R. 466 the order passed by the Central Government dismissing the revision petition under Rule 55 of the Mineral Concession Roles, 1960, was challenged before this Court on the ground that it did not contain reasons. Bachawat, J., speaking for himself and Mudholkar, J., rejected this contention on the view that the reason for rejecting the revision application appeared on the face of the order because the Central Government had agreed with the reasons given by the State Government in its order. The learned Judges did not agree with the submission that omission to give reasons for the decision is of itself a sucient ground for quashing it and held that for the purpose of an appeal under Article 136 orders of courts and tribunals stand on the same footing. The learned Judges pointed out that an order of court dismissing a revision application of-

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S N Mukherjee v. Union Of India 1990 tribunals within bounds, A reasoned order is a desirable condition of judicial disposal. (P. 472). If tribunals can make orders without giving reasons, the said power in the hands of unscrupulous or dishonest ocer may turn out to be a potent weapon for abuse of power. But, if reasons for an order are given, it will be an eective restraint on such abuse, as the order, if its discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and correction. A speaking order will at its best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. (P. 472). There is an essential distinction between a court and an administrative tribunal. A Judge is trained to look at things objectively, uninuenced by considerations of policy or expediency; but an executive ocer generally looks at things from the standpoint of policy and expediency. The habit of mind of an executive ofcer so formed cannot be expected to change from function to function or from act to act. So it is essential that some restrictions shall be imposed on tribunals in the matter of passing orders aecting the rights of parties; and the least they should do is to give reasons for their orders. Even in the case of appellate courts invariably reasons are given, except when they dismiss an appeal or revision in limine and that is because the appellate or revisional court agrees with the reasoned judgment of the subordinate court or there are no legally permissible grounds to interfere with

ten gives no reasons but this is not a sucient ground for quashing it and likewise an order of an administrative tribunal rejecting a revision application cannot be pronounced to be invalid on the sole ground that it does not give reasons for the rejection. The decision in Hari Nagar Sugar Mills case (supra) was distinguished on the ground that in that case the Central Government had reversed the decision appealed against without giving any reasons and the record did not disclose any apparent ground for the reversal. According to the learned Judges there is a vital dierence between an order of reversal and an order of armance. Subba Rao, J., as he then was, did to concur with this view and found that the order of the Central Government was vitiated as it did not disclose any reasons for rejecting the revision application. The learned Judge has observed: In the context of a welfare State, administrative tribunals have come to stay. Indeed, they are the necessary concomitants of a Welfare State. But arbitrariness in their functioning destroys the concept of a welfare State itself. Self-discipline and supervision exclude or at any rate minimize arbitrariness. The least a tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the

235 it. But the same reasoning cannot apply to an appellate tribunal, for as often as not the order of the rst tribunal is laconic and does not give any reasons. (P. 472-73). ably only exercise its appeallate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the appeal. With reference to an order of af- This will certainly be a very unsatrmance the learned Judge observed isfactory method of dealing with the that where the original tribunal gives appeal. (P. 309). reasons, the appellate tribunal may This Court has referred to the dedismiss the appeal or the revision, as cision in Madhya pradesh Industries the case may be, agreeing with those case (supra) and the observations of reasons and that what is essential Subba Rao, J., referred to above, is that reasons shall be given by an in that decision have been quoted appellate or revisional tribunal ex- with approval. After taking note of pressly or by reference to those given the observations of Bachawat, J., in by the original tribunal. This mat- that case, the learned Judges have ter was considered by a Constitution held: After all a tribunal which exBench of this Court in Bhagat Raja ercises judicial or quasijudicial powcase (supra) where also the order un- ers can certainly indicate its mind as der challenge had been passed by the to why it acts in a particular way Central Government in exercise of its and when important rights of parties revisional powers under Section 30 of far reaching consequences to them of the Mines and Minerals (Regu- are adjudicated upon in a summary lation and Development) Act, 1957 fashion, without giving a personal read with rules 54 and 55 of the Min- hearing when proposals and counter eral Concession Rules, 1960. Dealing proposals are made and examined, with the question as to whether it the least that can be expected is that was incumbent on the Central Gov- the tribunals shall tell the party why ernment to give any reasons for its the decision is going against him in decision on review this Court has ob- all cases where the law gives a furserved: ther right of appeal. (P.315). The decisions of tribunals in India are subject to the supervisory powers of the High Courts under Art. 227 of the Constitution and of appellate powers of this Court under Art. 136. It goes without saying that both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word rejected, or dismissed. In such a case, this Court can probReference has already been made to Som Datt Dattas case (supra) wherein a Constitution Bench of this Court has held that the conrming authority, while conrming the ndings and sentence of a Court Martial, and the Central Government, while dealing with an appeal under Section 165 of the Act, are not required to record the reasons for their decision and it has been observed that apart from any requirement imposed by the

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S N Mukherjee v. Union Of India 1990 peal against the said order of the District Magistrate without recording the reasons. This Court has held: The practice of the executive authority dismissing statutory appeal against orders which prima facie seriously prejudice the rights of the aggrieved party without giving reasons is a negation of the rule of law. (P. 204) Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just. (P. 205) In Woolcombers of India Ltd. case (supra) this Court was dealing with an award of an Industrial Tribunal. It was found that the award stated only the conclusions and it did not give the supporting reasons. This Court has observed: The giving of reasons in support of their conclusions by judicial and quasi-judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put

statute or statutory rule either expressly or by necessary implication, it could not be said that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. In that case the Court was primarily concerned with the interpretation of the provisions of Act and the Army Rules, 1954. There is no reference to the earlier decisions in Harinagar Sugar Mills case (supra) and Bhagat Raja case (supra) wherein the duty to record reasons was imposed in view of the appellate jurisdiction of this Court and the supervisory jurisdiction of the High Court under Articles 136 and 227 of the Constitution of India respectively. In Travancore Rayon Ltd. v. Union of India, [1970] 3 SCR 4(1 this Court has observed: The Court insists upon disclosure of reasons in support of the order on two grounds; one, that the party aggrieved in a proceedings before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power. (P. 46) In Mahabir Prasad Santosh Kumar v. State of U.P. and Others (supra) the District Magistrate had cancelled the licence granted under the U.P Sugar Dealers Licensing Order, 1962 without giving any reason and the State Government had dismissed the ap-

237 the authority on the alert and minimise the chances of unconscious inltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decision of judicial and quasi-judicial authorities to this Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court. (P. 507) In Siemens Engineering & Manufacturing Co. of India Limited case (supra) this Court was dealing with an appeal against the order of the Central Government on a revision application under the Sea Customs Act, 1878. This Court has laid down: It is now settled law that where an authority makes an order in exercise of a quasi-judicial function it must record its reasons in support of the order it makes. Every quasijudicial order must be supported by reasons. (P 495) If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be aected by their orders and give suciently clear and explicit reasons in support of the orders made by them. Then along administrative authorities and tribunals, exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring condence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partera, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. (496) Tarachand Khatri v. Municipal Corporation of Delhi & Others, [1977] 2 SCR 198 was a case where an inquiry was conducted into charges of misconduct and the disciplinary authority, agreeing with the ndings of the Inquiry Ocer, had imposed the penalty of dismissal. The said order of dismissal was challenged on the ground that the disciplinary authority had not given its reasons for passing the order. The said contention was negatived by this Court and distinction was drawn between an order of armance and an order of reversal. It was observed: ..... while it may be necessary for a disciplinary or administrative authority exercising quasijudicial functions to state the reasons in support of its order if it diers

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S N Mukherjee v. Union Of India 1990 to settlement of disputes by authorities governed by public law need not be extended to all cases arising under private law such as those arising under the law of arbitration which is intended for settlement of private disputes. (P. 751-52) The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasijudicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to eectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decisionmaking. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninuenced by considera-

from the conclusions arrived at and the recommendations made by the Inquiry Ocer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition too broadly to say that even an ordinary concurrence must be supported by reasons. (P. 208) In Raipur Development Authority and Others v. Mls. Chokhamal Contractors and Others, [1989] 2 S.C.C. 721 a Constitution Bench of this Court was considering the question whether it is obligatory for an arbitrator under the Arbitration Act, 194(1 to give reasons for the award. It was argued that the requirement of giving reasons for the decision is a part of the rules of natural justice which are also applicable to the award of an arbitrator and reliance was placed on the decisions in Bhagat Raja case (Supra) and Siemens Engineering Co. case (Supra). The said contention was rejected by this Court. After referring to the decisions in Bhagat Raja case (Supra); Som Datt Datta case (Supra) and Siemens Engineering Co. case (Supra) this Court has observed: It is no doubt true that in the decisions pertaining to Administrative Law, this court in some cases has observed that the giving of reasons in an administrative decision is a rule of natural justice by an extension of the prevailing rules. It would be in the interest of the world of commerce that the said rule is conned to the area of Administrative Law ..... But at the same time it has to be borne in mind that what applies generally

239 tions of policy or expediency whereas an executive ocer generally looks at things from the standpoint of policy and expediency. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasijudicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less signicance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be conned to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasijudicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added 63 that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it arms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge. Having considered the rationale for the requirement to record the reasons for the decision of an administrative authority exercising quasijudicial functions we may now examine the legal basis for imposing this obligation. While considering this aspect the Donough more Committee observed that it may well be argued that there is a third principle of natural justice, namely, that a party is entitled to know the reason for the decision, be it judicial or quasi-judicial. The committee expressed the opinion that there are some cases where the refusal to give grounds for a decision may be plainly unfair; and this may be so, even when the decision is nal and no further proceedings are open to the disappointed party by way of appeal or otherwise and that where further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive them of the opportunity. (P 80) Prof. H.W.R. Wade has also expressed the view that natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary mans sense of justice. (See

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S N Mukherjee v. Union Of India 1990 rules of natural justice. (P. 468-69) A similar trend is discernible in the decisions of English Courts wherein it has been held that natural justice demands that the decision should be based on some evidence of probative value. (See: R. v. Deputy Industrial Injuries Commissioner ex P. Moore, [1965] 1 Q.B. 456; Mahon v. Air New Zealand Ltd., [1984] A.C. 648. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fairplay in action. As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the adminis-

Wade, Administrative Law, 6th Edn. P. 548). In Siemens Engineering Co. case (Supra) this Court has taken the same view when it observed that the rule requiring reasons to be given in support of an order is, like the principles of audi alteram parlem, a basic principle of natural justice which must inform every quasi-judicial process. This decision proceeds on the basis that the two well known principles of natural justice, namely (i) that no man should be a Judge in his own cause and (ii) that no person should be judged without a hearing, are not exhaustive and that in addition to these two principles there may be rules which seek to ensure fairness in the process of decision making and can be regarded as part of the principles of natural justice. This view is in consonance with the law laid down by this Court in A.K. Kraipak and Others v. Union of India and Others, [1970] 1 SCR 457, wherein it has been held: The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without aording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the

241 trative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that aect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specied authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the 65 enactment. The public interest underlying such a provision would outweight the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. We may now come to the second part of the question, namely, whether the conrming authority is required to record its reasons for conrming the nding and sentence of the court martial and the Central Government or the competent authority entitled to deal with the post-conrmation petition is required to record its reasons for the order passed by it on such petition. For that purpose it will be necessary to determine whether the Act or the Army Rules, 1954 (hereinafter referred to as the Rules) expressly or by necessary implication dispense with the requirement of recording reasons. We propose to consider this aspect in a broader perspective to include the ndings and sentence of the court martial and examine whether reasons are required to be recorded at the stage of (i) recording of ndings and sentence by the court martial; (ii) conrmation of the ndings and sentence of the court martial; and (iii) consideration of postconrmation petition. Before referring to the relevant provisions of the Act and the Rules it may be mentioned that the Constitution contains certain special provisions in regard to members of the Armed Forces. Article 33 empowers Parliament to make law determining the extent to which any of the rights conferred by Part Ill shall, in their application to the members of the Armed Forces be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them. By clause (2) of Article 136 the appellate jurisdiction of this Court under Article 136 of the Constitution has been excluded in relation to any judgment, determination, sentence or order passed or made by any Court or tribunal constituted by or under any law relating to the Armed Forces. Similarly clause (4) of Article 227 denies to the High Courts the power of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces. This Court under Article 32 and the High

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S N Mukherjee v. Union Of India 1990 the sentence, the decision shall be in favour of the accused. In subsection (2) it is laid down that no sentence of death shall be passed by a general courtmartial without the concurrence of at least two-thirds of the members of the court and subsection (3) provides that no sentence of death shall be passed by a summary general court martial without the concurrence of all the members. With regard to the procedure at trial before the General and District courts martial further provisions are made in Rules 37 to 105 of the Rules. In Rule 60 it is provided that the judge advocate (if any) shall sum up in open court the evidence and advise the court upon the law relating to the case and that after the summing up of the judge advocate no other address shall be allowed. Rule 61 prescribes that the Court shall deliberate on its ndings in closed court in the presence of the judge advocate and the opinion of each member of the court as to the nding shall be given by word of mouth on each charge separately. Rule 62 prescribes the form, record and announcement of nding and in sub-rule (1) it is provided that the nding on every charge upon which the accused is arraigned shall be recorded and, except as provided in these rules, shall be recorded simply as a nding of Guilty or of Not guilty. Sub-rule (10) of Rule 62 lays down that the nding on charge shall be announced forthwith in open court as subject to conrmation. Rule 64 lays down that in cases where the nding on any charge is guilty, the court, before deliberating on its sentence, shall,

Courts under Article 226 have, however, the power of judicial review in respect of proceedings of courts martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suer from a jurisdictional error or any error of law apparent on the face of the record. Reference may now be made to the provisions of the Act and the Rules which have a bearing on the requirement to record reasons for the ndings and sentence of the court martial. Section 108 of the Act makes provision for four kinds of courts martial, namely, (a) general courts martial; (b) district courts martial; (c) summary general courts martial and (d) summary courts martial. The procedure of court martial is prescribed in Chapter XI (Sections 128 to 152) of the Act. Section 129 prescribes that every general court martial shall, and every district or summary general court martial, may be attended by a judge advocate, who shall be either an ocer belonging to the department of the Judge Advocate General, or if no such ocer is available, an ocer approved of by the Judge Advocate General or any of his deputies. In sub-section (1) of Section 131 it is provided that subject to the provisions of sub-sections (2) and (3) every decision of a courtmartial shall be passed by an absolute majority of votes, and where there is an equality of votes on either the nding or

243 whenever possible take evidence in the matters specied in sub-rule (1) and thereafter the accused has a right to address the court thereon and in mitigation of punishment. Rule 65 makes provision for sentence and provides that the court shall award a single sentence in respect of all the offences of which the accused is found guilty, and such sentence shall be deemed to be awarded in respect of the oence in each charge and in respect of which it can be legally given, and not to be awarded in respect of any oence in a charge in respect of which it cannot be legally given. Rule 66 makes provisions for recommendation to mercy and subrule (1) prescribes that if the court makes a recommendation to mercy, it shall give its reasons for its recommendation. Sub-rule (1) of Rule 67 lays down that the sentence together with any recommendation to mercy and the reasons for any such recommendation will be announced forthwith in open court. The powers and duties of judge advocate are prescribed in Rule 105 which, among other things, lays down that at the conclusion of the case he shall sum up the evidence and give his opinion upon the legal bearing of the case before the court proceeds to deliberate upon its nding and the court, in following the opinion of the judge advocate on a legal point may record that it has decided in consequences of that opinion. The said rule also prescribes that the judge advocate has, equally with the presiding ocer, the duty of taking care that the accused does not suer any disadvantage in consequences of his position as such, or of his ignorance or incapacity to examine or cross-examine witnesses or otherwise, and may, for that purpose, with the permission of the court, call witnesses and put questions to witnesses, which appear to him necessary or desirable to elicit the truth. It is further laid down that in fullling his duties, the judgeadvocate must be careful to maintain an entirely impartial position. From the provisions referred to above it is evident that the judge advocate plays an important role during the courts of trial at a general court martial and he is enjoined to maintain an impartial position. The court martial records its ndings 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 nding by word of mouth on each charge separately and the nding on each charge is to be recorded simply as a nding of guilty or of not guilty. It is also required that the sentence should be announced forthwith 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. There is no such requirement in other provisions relating to recording of ndings and sentence. Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was there it would not have been necessary to have a specic provision for recording of reasons for the recommendation to mercy. The said provisions thus negative a requirement to give reasons for its nding and

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S N Mukherjee v. Union Of India 1990 the prescribed ocer; and such ocer or the Chief of the Army Sta or any ocer empowered in this behalf may, for reasons based on the merits of the case, but not any merely 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 submitted by 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 conrming ocer and in case of district court martial it is provided that the proceedings should be sent by the presiding ocer, 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 conrmation. Rule 70 lays down that upon receiving the proceedings of a general or district Court Martial, the conrming authority may conrm or refuse conrmation or reserve conrmation for superior authority, and the conrmation, non-conrmation, or reservation shall be entered in and form part of the proceedings. Rule 71 lays down that the charge, nding and sentence, and any recommendation to mercy shall, together with the conrmation or non-conrmation of the proceedings, be promulgated in such manner as the conrming authority may direct, and if no direction is given, according to custom of the service and until promulgation has been eected, conrmation is not complete and the nding and sentence shall not be held to have been

sentence by the court martial and reasons are required to be recorded only in cases where the courtmartial makes a recommendation to mercy. In our opinion, therefore, at the stage of recording of ndings 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 conrmation of the ndings and sentence of the court martial it may be mentioned that Section 153 of the Act lays down that no nding or sentence of a General, District or summary General Court Martial shall be valid except so far as it may be conrmed as provided by the Act. Section 158 lays down that the conrming authority may while conrming 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 conrming authority to revise the nding 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 conrming authority, may take additional evidence. The conrmation of the nding 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 ocer commanding the division or brigade within which the trial was held or to

245 conrmed until they have been pro- reasons while conrming the ndings mulgated. and sentence of the courtmartial. The provisions mentioned above show that conrmation of the ndings and sentence of the court martial is necessary before the said nding or sentence become operative. In other words the conrmation of the ndings and sentence is an integral part of the proceedings of a court martial and before the ndings and sentence of a court martial are conrmed the same are examined by the deputy or assistant judge advocate general of the command which is intended as a check on the legality and propriety of the proceedings as well as the ndings and sentence of the court martial. Moreover we nd that in Section 162 an express provision has been made for recording of reasons based on merits of the case in relation to the proceedings of the summary courtmartial in cases where the said proceedings are set aside or the sentence is reduced and no other requirement for recording of reasons is laid down either in the Act or in the Rules in respect of proceedings for conrmation. The only inference that can be drawn from Section 162 is that reasons have to be recorded only in cases where the proceedings of a summary court martial are set aside or the sentence is reduced and not when the ndings and sentence are conrmed. Section 162 thus negatives a requirement to give reasons on the part of the conrming authority while conrming the ndings and sentence of a court martial and it must be held that the conrming authority is not required to record With regard to post-conrmation proceedings we nd that subsection (2) of Section 164 of the Act provides that any person subject to the Act who considers himself aggrieved by a nding or sentence of any court martial which has been conrmed, may present a petition to the Central Government, the Chief of the Army Sta or any prescribed ocer superior in command to the one who conrmed such nding or sentence and the Central Government, the Chief of the Army Sta or other ocer, as the case may be, may pass such orders thereon as it or he thinks t. In so far as the ndings and sentence of a court martial and the proceedings for conrmation of such ndings and sentence are concerned it has been found that the scheme of the Act and the Rules is such that reasons are not required to be recorded for the same. Has the legislature made a departure from the said scheme in respect of post-conrmation proceedings? There is nothing in the language of sub-section (2) of Section 164 which may lend support to such an intention. Nor is there anything in the nature of post conrmation proceedings which may require recording of reasons for an order passed on the post-conrmation petition even though reasons are not required to be recorded at the stage of recording of ndings and sentence by a court martial and at the stage of conrmation of the ndings and sentence of the court martial by the conrming authority. With regard to recording

246

S N Mukherjee v. Union Of India 1990 the High Court under Article 226 of the Constitution and he can obtain appropriate relief in those proceedings. We will, therefore, examine the other contentions that have been urged by Shri Ganguli in support of the appeal. The rst contention that has been urged by Shri Ganguli in this regard is that under sub-section (1) of Section 164 of the Act the appellant had a right to make a representation to the conrming authority before the conrmation of the ndings and sentence recorded by the court martial and that the said right was denied inasmuch as the appellant was not supplied with the copies of the relevant record of the court martial to enable him to make a complete representation and further that the representation submitted by the appellant under sub-section (1) of Section 164 was not considered by the conrming authority before it passed the order dated May 11, 1979 conrming the ndings and sentence of the court martial. The learned Additional Solicitor General, on the other hand, has urged that under sub-section (1) of Section 164 no right has been conferred on a person aggrieved by the ndings or sentence of a court martial to make a representation to the conrming authority before the conrmation of the said ndings or sentence. The submission of learned Additional Solicitor General is that while sub-section (1) of Section 164 refers to an order passed by a court martial, sub-section (2) of Section 164 deals with the ndings or sentence of a court martial and that the only right that has been conferred

of reasons the considerations which apply at the stage of recording of ndings and sentence by the court martial and at the stage of conrmation of ndings and sentence of the courtmartial by the conrming authority are equally applicable at the stage of consideration of the postconrmation petition. Since reasons are not required to be recorded at the rst two stages referred to above, the said requirement cannot, in our opinion, be insisted upon at the stage of consideration of post-conrmation petition under Section 164(2) of the Act. For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the conrming authority conrming the ndings and sentence recorded by the court martial as well as for the order passed by the Central Government dismissing the postconrmation petition. Since we have arrived at the same conclusion as in Sorn Datt Datta case (Supra) the submission of Shri Ganguli that the said decision needs reconsideration cannot be accepted and is. therefore, rejected. But that is not the end of the matter because even though there is no requirement to record reasons by the conrming authority while passing the order conrming the ndings and sentence of the CourtMartial or by the Central Government while passing its order on the post-conrmation petition, it is open to the person aggrieved by such an order to challenge the validity of the same before this Court under Article 32 of the Constitution or before

247 on a person aggrieved by the nding or sentence of a court martial is that under sub-section (2) of Section 164 and the said right is available after the nding and sentence has been conrmed by the conrming authority. We nd considerable force in the aforesaid submission of learned Additional Solicitor General. Section 164 of the Act provides as under: (1) Any person subject to this Act who considers himself aggrieved by any order passed by any court martial may present a petition to the ocer or authority empowered to conrm any tinging or sentence of such court martial and the conrming authority may take such steps as may be considered necessary to satisfy itself as to the correctness. legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. (2) Any person subject to this Act who considers himself aggrieved by a nding or sentence of any court martial which has been conrmed, may present a petition to the Central Government, the Chief of the Army Sta or any prescribed ocer superior in command to the one who conrmed such nding or sentence and the Central Government, the Chief of the Army Sta or other ocer, as the case may be, may pass such orders thereon as it or he thinks t. In sub-section (1) reference is made to orders passed by a courtmartial and enables a person aggrieved by an order to present a petition against the same. The said petition has to be presented to the ocer or the authority empowered to conrm any nding or sentence of such court martial and the said authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order or as to the regularity of any proceedings to which the order relates. Sub-section (2), on the other hand, makes specic reference to nding or sentence of a court martial. and confers a right on any person feeling aggrieved by a nding or sentence of any court martial which has been conrmed, to present a petition to the Central Government, Chief of the Army Sta or any prescribed ocer. The use of the expression order in sub-section (1) and the expression nding or sentence in sub-section (2) indicates that the scope of sub-section (1) and sub-section (2) is not the same and the expression order in sub-section (1) cannot be construed to include a nding or sentence. In other words in so far as the nding and sentence of the court martial is concerned the only remedy that is available to a person aggrieved by the same is under sub-section (2) and the said remedy can be invoked only after the nding or sentence has been conrmed by the conrming authority and not before the conrmation of the same. Rule 147 of the Rules also lends support to this view. In the said Rule it is laid down that every person tried by a court martial shall be entitled on demand, at any time after the conrmation of the nding and sentence, when such conrmation is required, and before the proceedings are destroyed, to ob-

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S N Mukherjee v. Union Of India 1990 tion had not been received by the conrming authority till the passing of the order of conrmation. It appears that due to some communication gap within the department the representation submitted by the appellant did not reach the conrming authority till the passing of the order of conrmation. Since we have held that the appellant had no legal right to make a representation at that stage the non-consideration of the same by the conrming authority before the passing of the order of conrmation would not vitiate the said order. Shri Ganguli next contended that the rst and the second charge levelled against the appellant are identical in nature and since the appellant was acquitted of the second charge by the court martial his conviction for the rst charge can not be sustained. It is no doubt true that the allegations contained in the rst and the second charge are practically the same. But as mentioned earlier, the second charge was by way of alternative to the rst charge. The appellant could be held guilty of either of these charges and he could not be held guilty of both the charges at the same time. Since the appellant had been found guilty of the rst charge he was acquitted of the second charge. There is, therefore, no inrmity in the court martial having found the appellant guilty of the rst charge while holding him not guilty of the second charge. Shri Ganguli has also urged that the ndings recorded by the court martial on the rst and third charges are perverse

tain from the ocer or person having the custody of the proceeding a copy thereof including the proceedings upon revision, if any. This Rule envisages that the copies of proceedings of a court martial are to be supplied only after conrmation of the nding and sentence and that there is no right to obtain the copies of the proceedings till the nding and sentence have been conrmed. This means that the appellant cannot make a grievance about nonsupply of the copies of the proceedings of the court martial and consequent denial of his right to make a representation to the conrming authority against the ndings and sentence of the court martial before the conrmation of the said nding and sentence. Though a person aggrieved by the nding or sentence of a court martial has no right to make a representation before the conramtion of the same by the conrming authority, but in case such a representation is made by a person aggrieved by the nding or sentence of a court martial it is expected that the conrming authority shall give due consideration to the same while conrming the nding and sentence of the court martial. In the present case the representation dated December 18, 1978 submitted by the appellant to the conrming authority was not considered by the conrming authority when it passed the order of conrmation dated May 11, 1979. According to the counter adavit led on behalf of Union of India this was due to the reason that the said representa-

249 inasmuch as there is no evidence to establish these charges. We nd no substance in this contention. The rst charge was that the appellant on or about December 1975, having received 60.61 meters woollen serge from M/s Ram Chandra & Brothers, Sadar Bazar, Jhansi for stitching 19 coats and pants for Class IV civilian employees of his unit with intent to defraud got altered ordnance pattern woollen pants issued to the said civilian employees instead of pants stitched out of the cloth received. To prove this charge the prosecution examined Ram Chander P.W. 1 and Triloki Nath P.W. 2 of M/s Ram Chandra & Brothers, Sadar Bazar, Jhansi who have deposed that 60.61 meters of woollen serge cloth was delivered by them to the appellant in his oce in December, 1975. The evidence of these witnesses is corroborated by B.D. Joshi, Chowkidar, P.W. 3, who has deposed that in the last week of December, 1975, the appellant had told him in his oce that cloth for their liveries had been received and they should give their measurements. As regards the alteration of 19 ordnance pattern woollen pants which were issued to the civilian employees instead of the pants stitched out of the cloth that was received, there is the evidence of N/sub. P. Vishwambharam P.W. 19 who has deposed that he was called by the appellant to his oce in the last week of December, 1975 or the rst week of January, 1976 and that on reaching there he found ordnance pattern woolien pants lying by the side of the room wall next to the appellants table and that the appellant had called Mohd. Sharif P.W. 15 to his oce and had asked him to take out 19 woolien trousers out of the lot kept there in the ofce. After Mohd. Sharif had selected 19 woollen trousers the appellant told Mohd. Sharif to take away these pants for alteration and retting. The judge advocate, in his summing up, before the court martial, has referred to this evidence on the rst charge and the court martial, in holding the appellant guilty of the rst charge, has acted upon it. It cannot, therefore, be said that there is no evidence to establish the rst charge levelled against the appellant and the ndings recorded by the court martial in respect of the said charge is based on no evidence or is perverse. The third charge, is that the appellant having come to know that Capt. Gian Chand Chhabra while ociating OC of his unit, improperly submitted wrong Contingent Bill No. 341/Q dated September 25, 1975 for Rs.16,280 omitted to initiate action against Capt. Chhabra. In his summing up before the court martial the judge advocate referred to the CDA letter M/IV/191 dated November 20, 1975 (Exh. CC) raising cert in objection with regard to Contingent Bill No. 341/Q dated September 25, 1975 for Rs.16,280 and pointed out that the said letter was received in the unit on or about November 28, 1975 and bears the initials of the appellant with the aforesaid date and remark Q Spk with details. This would show that the appellant had

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S N Mukherjee v. Union Of India 1990 based on no evidence and is perverse. In the result we nd no merit in this appeal and the same is accordingly dismissed. But in the circumstances there will be no order as to costs. R.N.J. Appeal dismissed.

knowledge of the Contingent Bill on November 28, 1975. It is not the case of the appellant that he made any complaint against Captain Chhabra thereafter. It cannot, therefore, be said that the nding recorded by the court martial on the third charge is

Chapter 17

Ex-Hav Ratan Singh v. Union of India 1991

EX-HAVILDAR RATAN SINGH mary Court Martial held without juv. UNION OF INDIA AND ORS. risdiction. PETITIONER: EX-HAVILDAR HEADNOTE: The appellant, a RATAN SINGH Havildar, was charge-sheeted on the ground that during an armed action v. against a group of militants when RESPONDENT: UNION OF INthe militants opened re he ran away DIA AND ORS. in a cowardly manner and left his DATE OF JUDGMENT19/11/1991 post without permission of his suBENCH: SHARMA, L.M. (J) perior. The respondent-authorities BENCH: SHARMA, L.M. (J) proceeded on the ground that his ofVERMA, JAGDISH SARAN (J) fence was covered by section 36 of the Army Act, 1950 and accordingly secAGRAWAL, S.C. (J) CITATION: 1992 AIR 415 1991 tion 120 (1) of the Act was applicaSCR Supl. (2) 370 1992 SCC Supl. ble. Consequently, he was tried by a (1) 716 JT 1991 (4) 427 1991 SCALE summary court Martial and was convicted and reduced in rank and im(2)1047 prisoned for one year. He led an ACT: Army Act, 1950. Section application under Article 226 before 3(x), 34(a)(h), 36 and 120. Summary the Delhi High Court which was disCourt MartialJurisdiction ofHavildar missed. In appeal to this Court it engaged in armed action against milwas contended on behalf of the appelitantsCharge of running away in a lant that having regard to the nature cowardly manner and leaving the of the charge against him section 34 post without permission of superiof the Army Act was attracted and orNature of oence and jurisdictionin view of section 120(2) of the Act Held oence covered by Section 34 trial by summary Court was not perand not by section 36Trial by Sum-

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Ex-Hav Ratan Singh v. Union of India 1991 in accordance with law. [374.-C] JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 710 of 1991. From the Judgment and Order dated 29.1. 1991 of the Delhi High Court in Cr. W.P. No. 9 of 1991. B.Pajha and Manoj Prasad for the Appellant. V.C.Mahajan, S.D.Sharma and S.N.Terde for the Respondents. The Judgment of the Court was delivered by SHARMA, J. Special leave is granted. 2. The appellant, Havildar Ratan Singh was tried and convicted by Summary Court martial. He was reduced in rank and sentenced to suer rigorous imprisonment for one year. He led an application under Article 226 of the Constitution of India before the Delhi High Court, which was dismissed by the impugned judgment. 372 3. Although a number of questions were raised in the writ petition and the special leave petition, the ground urged by the learned counsel for the appellant before us is conned to one point. It has been contended that having regard to the nature of the charge against the appellant, the provisions of section 34 of the Army Act, 1950 (herein-after referred to as the Act) are attracted, and in view of section 120 (2) of the Act, trial by summary not permitted. The learned counsel has placed the relevant provisions of the Act indicating that the appellant would have been entitled to a qualitatively better right of defence before a court martial other than a summary court martial which was denied to him on a wrong assumption that the case

mitted. Allowing the apeal and setting aside the judgment of the High Court, this Court, HELD: 1. Under section 120 (2) of the Army Act, 1950 if an oence is covered by section 34 and immediate action for the specied reasons is not warranted, the summary court martial shall not have jurisdiction to hold the trial. [372 D-F] 2. Section 36 covers a wide range of oences and the scope of 371 section 34 is limited to a smaller area where the oence is more serious attracting more severe punishments. The operation in which the appellant was engaged was directed against the militants who were undisputedly included in the expression enemy within section 3 (x). If the allegations are assumed to be true, than the appellant, on the militants opening re shamefully abandoned the place comitted to his charge and which he was under a duty to defend. Both clauses (a) and (h) of section 34 are clearly attracted. The appellant was therefore guilty of a more serious oence under clauses (a) and (h) of section 34 of the Act than under section 36. 1373 D-G] It is also not suggested on behalf of the respondents that there was in existence any grave reason for immediate action so as to justify trial by an ocer holding summary court martial. Consequently the impugned, hed trial by Summary Court Martial and the decision thereby must be held to be without jurisdiction and is quashed. The conviction and sentence passed against the appellant is set aside. [373 E-G] 3. The respondents-authorities can proceed to hold a fresh trial of the appellant

253 was covered by section 36, and not by section 34. The question which arises in this case, is whether the Summary Court Martial had jurisdiction to try the appellant in the facts as alleged in the present case. 4. The charge sheet states that when red upon by a group of terroristmilitants during an armed operation against them, the appellant quitted his place without orders from his superior ocer. Section 120 of the Act states that subject to the provisions of sub-section (2) of the section a summary court martial may try any oence punishable under the Act. Sub-section (2) reads as follows :- (2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the ocer empowered to convene a district court martial or on active service a summary general court martial for the trial of the alleged oender, an ocer holding a summary court martial shall not try without such reference any oence punishable under any of the sections 34, 37 and 69, or any oence against the ocer holding the Court. The position, thus, is that if the oence is covered by section 34 and immediate action for the specied reasons is not warranted, the summary court martial shall not have jurisdiction to hold the trial. 5. Section 34 states that any person subject to the Act, who commits any of the oences enumerated thereunder, shall on conviction by court martial, be liable to suffer death or such less punishment as prescribed. The oences are detailed in 12 clauses and clauses (a) and (h) appear to be relevant in the present context. They are quoted below:(a) shamefully abandons or delivers up any garrison, fortress, post, place or guard, committed to his charge, or which it is his duty to defend or uses any means to compel or induce any 373 commanding ocer or other person to commit any or the said acts; or (h) in time of action leaves his commanding ocer or his post,guard, picquet, patrol or party without being regularly, relived or without leave; or. 6. The evidence in the case, included in the paper book prepared by the appellant, indicates that the appellant while engaged in an armed action against a group of militants is alleged to have run away when the militants opened re and he, thus, in a cowardly manner left his post without permission of his superior ocer. The allegations included in the charge sheet on the basis of which the appellant was tried are also to the same eect. The appellant is, therefore, right in his stand that if the prosecution case be assumed to be correct (which he denies) he was guilty of a more serious oence under clauses (a) and (h) of section 34 of the Act than under section 36. In reply it is contended on behalf of the respondents that the case is covered by section 36, and, therefore, the Summary Court Martial was fully authorised to try the appellant under section 120 (1). 7. There is no dispute that the appellant is governed by the provisions of the Act. It is also not suggested on behalf of the respondents that there was in existence any grave reason for immediate action so as to justify trial by an ocer holding summary court

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Ex-Hav Ratan Singh v. Union of India 1991 learned counsel for the appellant that if he succeeded on the basis that the Summary Court Martial was without jurisdiction, he (the appellant) may have to be retired and awarded a more severe punishment, The learned counsel, however, decided to press the point even at the risk of a second trial of the. appellant. The learned counsel for the respondents stated that a fresh proceeding may now be barred by the law of Limitation, and in view of the fact that the appellant is guilty of a very serious charge, this Court should decline to exercise its power under Article 136. In reply the learned counsel for the appellant pointed out that the period of limitation for commencing a fresh proceeding against the appellant shall not expire before 05.02.92 and the apprehension expressed on behalf of the respondents that the appellant, even if guilty, may escape a trial is misconceived. We hold that the appellant is correct. Accordingly we set aside the impugned judgment of the High Court as also the conviction and sentence passed against the appellant by the Summary Court Martial, but allow the respondentsauthorities to proceed to hold a fresh trial of the appellant in accordance with law. The appeal is accordingly allowed. T.N.A. Appeal allowed.

martial. The Operation in which the appellant was engaged was directed against the militants who were undisputedly included in the expression enemy within section 3(x). The impugned order is attempted to be justied solely on the ground that section 36 covers the case. The argument overlooks the position that it is not the scope of section 36 which can answer the question raised in the present case. The issue is whether the oence is punishable under section 34 or not. Section 36 covers a wide range of oences and the scope of section 34 is limited to a smaller area where the oence is more serious attracting more severe punishments. If the allegations are assumed to be true then the appellant, on the militants opening re, shamefully abandoned the place committed to his charge and which he was under a duty to defend. Both clauses (a) and (h) are, therefore, clearly attracted. The impugned trial by summary court martial and the decision thereby must be held to be without jurisdiction and have to be quashed. 8. We do not nd any merit in the other points mentioned in the writ petition or in the special leave petition. They are nally rejected. 9. During the course of the hearing we drew the pointed attention of the

Chapter 18

P Chandramouli v. Union Of India 1994

P. CHANDRAMOULY UNION OF INDIA AND ANR. v. inal Appeal No. 625 of 1987 by the Union of India are against the CASE NO.: Appeal (crl.) 623-24 common judgment and order dated 31.3.1987 passed by a Division Bench of 1987 Of the Gauhati High Court in Writ PETITIONER: P. CHANAppeals Nos. 1,2 and 3 of 1980. DRAMOULY The four appellants, members of RESPONDENT: UNION OF INthe General Reserve Engineers Force DIA AND ANR. (hereinafter referred to as the Force) DATE OF JUDGMENT: were accused of having committed of22/07/1994 fences punishable under Section 63 of BENCH: M.M. PUNCHHI & KJ. the Army Act under four counts, as also under Section 39(a) and 41 of REDDY the said Act under one count each. JUDGMENT: For the six charges framed they were WITH tried by a Court Martial and conCriminal Appeal Nos. 620-22 of victed under all the six counts and 1987 and Criminal Appeal No. 625 awarded sentences of imprisonment, of 1987. They invoked the jurisdiction of the Central Government under Sections 1994 SUPPL. (2) SCR 43 The following Order of the Court 164 and 165 of the Army Act, 1950 but with no success. They led was delivered ; two separate writ petitions before Criminal Appeal Nos. 620 to 622 the Gauhati High Court challenging of 1987 on behalf of three members of their convictions and sentences. The the General Reserve Engineers Force, writ petitions to the ocers were acCriminal Appeals Nos. 623-624 by cepted partially to the extent that ofone more such member and Crim-

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P Chandramouli v. Union Of India 1994 are at large. It is the conceded case of the ocer-appellants that the provisions of the Army Act, subject to some exceptions are applicable to the Force with eect from 23.9.1960. The offences herein were committed in the year 1971. The plea of the appellants is that the Court Martial set up under a warrant of the Chief of the Army Sta, authorising the Chief Engineer to conduct it, was not legally constituted under the Army Act since there was no parallel ocer of an Army rank posted in the Force. It is stated that this objection to jurisdiction was taken before the Court Martial but not ignored. The appellants learned counsel was unable to support his contention. We do not nd any material in support thereof because the proceedings of the Court Martial have not been placed before us as part of the record. The judgment under appeal is also not reective of the question of jurisdiction having been raised in such manner. Even otherwise it is not available to the appellants because of the settled position in law that the General Reserve Engineers Force is part and parcel of the Armed Forces to which the Army Act is applicable. In this connection R. Viswan & Ors. v. The Union of India & Ors, [1983] 3 S.C. R. 60 and Devi Prasad Mishra v: Union of India and Ors., S L P. (Crl.) No. 1020 of 1978 may with advantage be seen. Such argument is not open to the appellants. The ancillary question raised that those judgments applied prospective and did not cover the state of law as exist-

fence under Section 63 in relation to one count was quashed. The learned Single Judge also took the view that orders of the Competent Authority under Sections 164 and 165 of the Army Act required a speaking order. The learned Single Judge in relation to the other charges suggested to the Competent Authority whether it would be worthwhile to keep operating the sentence s imposed under other charges due to the quashing of one of the charges under Section 63 of the Act. Against the partial acceptance of their writ petitions, the four ocers led their respective letters patent appeals before the Division Bench of that Court as did the Union of India, aggrieved as it was against the quashing of charge under one count under Section 63 of the Act. The Division Bench on reappraisal of the entire matter came to the conclusion that all the six charges against the ocers stood established and that there was no occasion for the learned Single Judge to have quashed one charge. While doing so it agreed with the learned Single Judge that the Authority exercising jurisdiction under Sections 164 and 165 of the Army Act was required to pass a speaking order. All the same, the convictions and sentences were maintained despite the requirement of the Authority passing a speaking order. Recommendation, however, as made to the Union of India that it was a case where sentences of the ocers deserve commuting. We are told that the Union of India accepting the suggestion committed accordingly the sentences of imprisonment of the four members and they

257 ing prior thereto and the instant being a case which arose priority is to be noted and rejected. That Court, in those cases, not only declared the state of law as existing but interpreted it to have always existed from the date of the notication applying the Army Act to the Force. Undeniably, when the Army Act is applicable, the Chief of the Army Sta is the person, besides the Central Government, to issue a warrant for convening a Court Martial. He can, therefore, authorise not only anyone from the personnel directly governed under the Army Act but also from the personnel to which the Army Act stands extended. Here the Chief Engineer could be issued a warrant for the purpose being on the roll of the Force to which the Army Act had been extended. The argument thus being of no substance is rejected. Lastly, it has been contended on behalf of the appellants that while these appeals were pending in this Court they have been served Show Cause Notices under the Central Civil Services (Classication, Control and Appeal) Rules so as to take disciplinary action against them on the basis of their convictions. It has been urged that oence of violation of good Order and discipline punishable under Section 63 of the Army Act had come to be committed because the appellants genuinely believed that they were not members of the Armed Forces and thus not bound by the strict standards of good order and discipline as expected from the Armed Forces. Now while proceeding with this judgment our attention has been drawn to the limited leave granted in these matters, only on two questions. One of the questions is to examine the eect of substitution of the word discipline in place of the expression military discipline in Section 63 of the Act by order of the Central Government dated September 23, 1960 issued in exercise of the powers conferred under Section 4(1) of the Act, as applicable to the members belonging the General Reserve Engineers Force and questions incidental thereto. It was also made clear that such grant of leave would not entitle the parties to reopen the questions decided by the Constitution Bench in R. Viswan & Ors. v. Union of India & Ors., yet the learned counsel for the appellants went on raising the question of applicability of the Army Act to the members of the General Reserve Engineers Force and transgressed the limits of special leave. Keeping that apart. Section 63 of the Act nevertheless is applicable to the members of the Force and they can be tried for any act or omission which, though not specied in the Act, is prejudicial to good order and discipline and can be convicted by a Court Martial and be held liable to suer imprisonment for a term which may extend to seven years or less, As we view it, the dropping of the word military from the text of Section 63 rather enlarges its scops in a sense for it obligates maintenance of discipline in a wider sense. It may be true, as has been contended by the learned counsel for the appellants, that the discipline envisaged for the Engineers Force can-

258

P Chandramouli v. Union Of India 1994 members of the Engineers Force subjected to good order and discipline cannot work to its prejudice. Anyone violating that good order and discipline would thus have to suer. We hold accordingly. The second question on which the limited leave was granted was to discover the duty of the Conrming Authority to pass a reasoned order under Sections 150, 154 and 164 of the Act. The understanding of Sections 154, 164 of the Act would govern the role assigned under Section 165 of the Act. These provisions do not specically require any speaking order to be passed. The learned Single Judge as also the Division Bench of the High Court opined that passing of a speaking order would be: necessary. The High Court has taken this view against the Constitution Bench of this Court in Som Datta v. Union of India & Ors., [1969] 2 S.C.R. 177 wherein it has been authoritatively held that there is no express obligation imposed by Section 164 or Section 165 of the Army Act on the Conforming Authority or upon the Central Government to give reasons in support of its decision to conrm the proceedings of the Court Martial. Before the Constitution Bench, as here, no provision of the Act or any Rule made thereunder has been shown from which implication can be drawn that such a duty was cast upon the Government and the Conrming Authority. This Bench is bound by the view express by the Constitution Bench. Additionally, we do not see that absence of a speaking order, in these circum-

not be of such strict standards as is regimental or military discipline but it is, however, forgotten when so canvassing that even ordinary discipline, which is expected to be observed by the members of the Engineers Force, when violated, would attract the jurisdiction of the Court Martial which is empowered to impose sentences of imprisonment. Such imprisonment is extendable upto seven years and can be either rigorous or simple as is plain from the language of Section 71(c) of the Army Act. Other punishments enumerated in clauses (d), (e), (f), (g) and (h) of Section 71, though forming part of the Army Act, are excepted from application to the Engineers Force. Those are cashiering, dismissal from service, reduction in rank, forfeiture of seniority of rank or forfeiture of service. These cannot be imposes by the Court Martial when trying offences against the members of the Engineers Force. Since these punishments do hot fall within the domain of the Court Martial insofar as members of the Engineers Force are concerned, then obviously the Central Civil Services (C.CA) Rules come in to ll the vacuum. The members of the Engineers Force are not due for a better treatment than ordinary Government servants who have to suer disciplinary action under the said Rules on the basis of criminal convictions. Therefore, we are of the considered view that the expression military discipline when substituted as discipline, for the purpose of the Engineers Force serves the purpose above-mentioned. It goes without saying that the behaviour of the

259 stances, b any way thwarts judicial review should the court undertake the exercise since the parent order is always available to build argument? upon. This part of the view of the High Court relating to the passing of the speaking order, we cannot approve and thus we set it aside retrieving it from the judgment under appeal. Counsel without bringing to our notice the limitations within which the debate could go on terms of the special leave. Therefore, We are constrained to award costs. Criminal Appeals Nos. 620 to 624 are, therefore, dismissed with costs which we quantify at Rs. 5,000.

Criminal Appeal No. 625 of 1987 led on behalf of the Union. of India Before we part With the judg- is allowed in the above terms. In this ment, we need to observe that much appeal there shall be no costs. of our time was employed by learned

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P Chandramouli v. Union Of India 1994

Chapter 19

Union Of India v. R.K.L.D. Azad 1995

Union Of India & Ors v. M.K. MUKHERJEE, J. R.K.L.D. Azad on 9 August, 1995 Special leave granted. Equivalent citations: 1996 AIR 845, The two short questions that ate 1995 SCC Supl. (3) 426 Author: M required to be answered in these apMukherjee Bench: M M.K. peals are:PETITIONER: (i) whether a person who is subUNION OF INDIA & ORS. ject to the Army Act, 1950 (Act v. for short) can be dismissed from service for committing an oence unRESPONDENT: der the Act even after he had retired R.K.L.D. AZAD on attaining the age of superannuaDATE OF JUDGMENT09/08/1995 tion? and (ii) whether a Junior Commissioned Ocer of the Indian Army BENCH: who has to his credit the minimum MUKHERJEE M.K. (J) period of qualifying service required BENCH: to earn a pension or gratuity is eliMUKHERJEE M.K. (J) gible for the same in case he is dismissed from service under the proviJEEVAN REDDY, B.P. (J) sions of the Act? The question arise CITATION: in the wake of the following undis1996 AIR 845 1995 SCC Supl. (3) puted facts. While employed as a Ju426 1995 SCALE (4)711 nior Commissioned Ocer in the InACT: dian Army the respondent herein was placed under closed arrest on August HEADNOTE: 7, 1990 pending his trial by a General JUDGMENT: Court Martial for an oence under JUDGMENT Section 64 (e) of the Act. Since the

262

Union Of India v. R.K.L.D. Azad 1995 123 of the Act, the learned Judge observed, could not give any statutory imprimatur to an order of dismissal passed against an ocer of the Army after he had ceased to hold his post consequent upon his retirement. As success of either of the contesting parties in the writ petition was only partial, both preferred Letters Patent Appeals in the High Court but they were dismissed and the order of the learned Single Judge was conrmed. Aggrieved thereby these appeals have been led at the instance of the Army authorities.

respondent was due to retire on August 31, 1990 on attaining the age of superannuation the Army authorities passed an order on August 23, 1990, extending his subjection to the Act till completion of the trial. In the trial that commenced from November 1, 1990 and ended on November 26, 1990, the respondent was convicted and the sentences imposed for the conviction were rigorous imprisonment for one year and dismissal from service. After due conrmation in accordance with Section 154 of the Act the order of conviction and sentence was promulgated on January 15, 1991.

Relying upon the provisions of sub-section (1) and (2) of Section 123 Assailing the above order of the of the Act which read as under: 123 General Court Martial the respon- Liability of oender who ceases to be dent led a writ petition in the subject to ActAndhra Pradesh High Court which (1) Where an oence under this was heard by a learned Single Judge. Act had been committed by any perThe learned Judge allowed the writ son while subject to this Act, and he petition in part by setting aside the has ceased to be so subject, he may order of dismissal of the responbe taken into and kept in military dent, but upholding his conviction custody, and tried and punished for and sentence of rigorous imprisonsuch oence as if he continued to be ment for one year. The reason which so subject. weighed with the learned Judge in (2) No such persons shall be tried setting aside the dismissal was that consequent his retirement on August for an oence, unless his trial com31, 1990 the question of his dis- mences within a period of three years missal from service could not have after he had ceased to be subject to arisen. According to the learned this Act; and in computing such peJudge the order dated August 23, riod, the time duting which such per1990, whereby the respondent was to son has avoided arrest by absconding be subject to the Act till conclusion or concealing himself or where the of the trial, only entitled the General institution of the proceeding in reCourt Martial to proceed with the spect of the oence has been stayed trial which, otherwise, would have by an injunction or order, the pebeen impermissible and illegal from riod of the continuance of the injuncthe date of the respondents retire- tion or order, the day on which it ment. Such an order under Section was issued or made, and the day on

263 which it was withdrawn, shall be excluded. it was contended on behalf of the appellants that a plain reading thereof made it abundantly clear that notwithstanding the fact that the respondent had ceased to be subject to the Act consequent upon his retirement, he could be tried for the offence under Section 64(e) of the Act, as it was committed before his retirement, and punished for the same in view of the deemed extension of his subjection to the Act under Section 123 of the Act. It was next contended that both the trial, and the punishment of dismissal that followed, were legal and valid as the former commenced within the period stipulated under sub-section (2) of Section 123 and the latter could be combined with the sentence of imprisonment imposed upon the respondent in view of Section 73 of the Act. In support of their contention the appellant relied upon Major (Retd.) Hari Chand Pahwa v. Union of India & Anr. 1995 Supp (1) SCC 221. While repudiating the above contention of the appellants by adopting the reasoning of the learned single Judge in this regard, as conrmed by the Division Bench in the Letters Patent Appeal, the learned counsel for the respondent submitted that in case it was held that the order of dismissal of the respondent was legally sustainable still he could not be deprived of his pension and gratuity in the absence of any express embargo to that eect in the dismissal order. on behalf of the appellant therein that he could only be awarded a punishment of imprisonment after conviction but not also of being cashiered from the Army (which was imposed upon the appellant therein) because he had earlier retired this Court observed: Though the appellant had retired from the Army service but by operation of sub-section (1) of Section 123 of the Army Act, he could be tried by the GCM in respect of the oences committed by him during the period of his actual service and could be committed and punished in the same manner who was subject to the Army Act could be tried and punished. The said provision clearly states that a retired person can be tried and punished for such oences as if he continued to be so subject. We, therefore, do not agree with the rst contention raised by the learned counsel for the appellant and reject the same. The GCM could award any of the punishments which could be awarded by the said court under law including to be cashiered from the Army. The provisions of section 123 make no dierence between an ocer who is still in service and who was retired from service provided the GCM proceedings are initiated within the period of limitation provided under sub-section (2) of Section 123 of the Army Act.

As the facts of the case presented before us are on all fours with those in Hari Chand Pahwa (Supra) and as In the case of Maj. (Retd.) Hari we respectfully agree with the above Chand Pahwa (supra) this Court quoted observations, the rst queswhile repelling the contention raised tion must be answered in the ar-

264

Union Of India v. R.K.L.D. Azad 1995 gratuity under these Regulations. In view of the plain language of the above regulation the respondent cannot lay anylegal or legitimate claim for pension and gratuity on the basis of his previous service as, admittedly, he stands dismissed in accordance with Section 73 read with Section 71 of the Act. The second question must, therefore, be answered in the negative. On the conclusions as above these appeals are allowed. The impugned judgments of the High Court so far as they held that the dismissal of the respondent was legally unsustainable are hereby set aside and the writ petition led by the respondent is dismissed. There will be no order as to costs.

mative. Coming now to the second question we nd that the grant of pension and gratuity to Junior Commissioned Ocers, other Ranks and Non-Combatants (Enrolled) is regulated by Chapter III of the Pension Regulations for the Army, 1961 (Part I). Regulation 113 which comes under Section I of the above Chapter reads, after its amendment in 1967, as follows: 113 (a) An individual who is dismissed under the provisions of the Army Act, is ineligible for pension or gratuity in respect of all previous service.

In exceptional cases, however, hemay, at the discretion of the President be granted service pension or gratuity at a rate not exceeding that for which he would have otherwise Before we part with this record qualied had he been discharged on we make it clear that this judgment the same date. of ours will not stand in the way of (b) An individual who is dis- the respondent to make a represencharged under the provisions of tation seeking exercise of the discreArmy Act and the rules made there- tionary powers of the President ununder remains eligible for pension or der Regulation 113 to grant pension or gratuity.

Chapter 20

Union Of India v. Major General Madan Lal Yadav 1996

Union Of India & Ors v. MaJT 1996 (3) 465 1996 SCALE jor General Madan Lal Yadav ... on (3)72 22 March, 1996 Equivalent citations: ACT: 1996 AIR 1340, 1996 SCC (4) 127 HEADNOTE: Author: K Ramaswamy Bench: RaJUDGMENT: maswamy, K. JUDGMENT PETITIONER: UNION OF INDIA & ORS. v. K. Ramaswamy, J. This appeal on reference to this Bench raises an interesting question RESPONDENT: of law. The respondent while workMAJOR GENERAL MADAN ing as Major General, Army OrdLAL YADAV [RETD.] nance Corps., Southern Command, DATE OF JUDGMENT: Pune between December 1, 1982 and 22/03/1996 July 7, 1985 was in-charge of purchase. The Controller General of DeBENCH: fence Accounts in special audit on RAMASWAMY, K. the local purchases sanctioned by the BENCH: respondent prima facie found that respondent had derelicted his duty RAMASWAMY, K. and action under the Act was iniAHMAD SAGHIR S. (J) tiated against him. At that time, G.B. PATTANAIK (J) the respondent was attached to ColCITATION: lege of Military Engineering, Pune 1996 AIR 1340 1996 SCC (4) 127 and was promoted as Major Gen-

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Union Of India v. Major General Madan Lal Yadav 1996 fence Accounts, Southern Command to carry out special audit for the period in question. The respondent had sought permission to go to Delhi in connection with his writ petition which was granted between December 16 and 18, 1986. The writ petition was dismissed by this Court on December 18, 1986 against which he led special leave petition. On January 3, 1987, the recording of summary evidence against the respondent was concluded. He sought permission to go to Delhi in connection with his special leave petition which was granted between January 12 and February 5, 1987. The summary evidence was considered and GOC in Command, Southern Command submitted his report on February 2, 1987. The special leave petition came to be dismissed by this Court on February 5, 1987. Pursuant thereto, general Court martial [for short, GCM] was ordered on February 24, 1987; the GCM assembled to try the respondent on February 25, 1987. On perusal of the report, it was found that the respondent should be tried for the oence. He was directed to be produced on February 26, 1987 but it transpired that the respondent had escaped lawful military custody on the intervening night of February 15 and 16, 1987. Warrant was issued for his arrest. The respondent voluntarily surrendered on March 1, 1987 and was placed under closed arrest w.e.f. 2130 hours on the said day. The Court Martial assembled on March 2, 1987 but it appears that the respondent had, in the meanwhile, led writ petition in the Bombay High Court challenging the ju-

eral. After initiation of the proceedings he was ordered to retire which he had challenged by ling Writ Petition No.3189 of 1986 in the Bombay High Court which stood dismissed on August 29, 1986. On August 30, 1986, action was initiated against the respondent under Section 123 of the Army Act, 1950 [for short, the Act]. He was kept under open arrest from that date onwards and retired from service on August 31, 1986 as Major General. On September 22, 1986, the respondent was issued a chargesheet and recording of the summary evidence commenced on September 25, 1986. The respondent led habeas corpus petition in this Court under Article 32 of the Constitution on September 26, 1986 and refused to cross-examine witnesses examined at preliminary enquiry between October 20 and 25, 1986. He sought for, and the proceedings were adjourned to November 3, 1986, on the ground that his lawyer from Delhi was to come to Pune for cross-examination of the witnesses. Due to nonavailment of the opportunity given to the respondent to cross-examine the witnesses between November 20, 1986 and December 8, 1986, the case was closed for prosecution on November 20, 1986. The respondent sought 14 days time to prepare his case which was duly allowed. However, the respondent did not give list of his defence witnesses till November 30, 1986. Consequent upon it, on December 26, 1986, the Controller General of Defence Accounts directed the Controller, De-

267 risdiction of the Court Martial to try him. In W.P. No.301 or 1987, invoking the provisions of Section 123 [2] of the Acts the Division Bench had held that the trial of the accused had not commenced within six months of his ceasing to be subject to the Act. The trial by the Court Martial was, therefore, held to be illegal and accordingly writ was issued. Calling in question this order, this appeal has been led. It is undisputably clear that the respondent had retired from service on August 31, 1986. He was kept under open arrest from August 26, 1986 and had escaped from lawful military custody on the intervening night of February 15 and 16, 1987 and voluntarily surrendered on March 1, 1987. Though the respondent has pleaded in the High Court that he had gone with prior permission of the authorities, the same has been denied by the ocer concerned. The High Court has recorded, as a fact, that the respondent had absconded himself. Section 123 of the Act fastens culpability of the oender who ceased to be subject to the provisions of the Act. Sub-section [1] postulates that where an oence under the Act had been committed by any person while subject to the Act, and he has ceased to be so subject, he may be taken into and kept in military custody, and tried and punished for such oence as if he continued to be so subject. Sub section [2] which stands amended by Army Act [Amendment] Act, 37 of 1992, prescribed limitation on such action, at the relevant time, that no such person shall be tried for an oence, unless his trial commences within six months after he had ceased to be subject to the Act. The amended sub-section [2] is not relevant for our purpose since the oence in question was indisputably committed prior to the Amendment came into existence. The proviso and other sub-sections are also not relevant for our purpose. The question, therefore, is: on which date did the trial of the respondent commence? In other words, whether the trial of the respondent commenced within six months from the date of his retirement, viz., August 31, 1986? By prescription of six months limitation under sub-section [2], the trial of the respondent was to commence before February 28, 1987. Consequently, the question, therefore, is: what is the meaning of the words trial commenced as used in subsection [2] of Section 123 and as to when it commences? It is contended by Shri Malhotra, learned counsel for the appellants, that the word commenced must be understood and considered in the setting and scenario of the operation of relevant provisions of the Act and the rules framed thereunder, viz., the Army Rules, 1954 [for short, the Rules]. Their conjoint reading would indicate that the moment the Court martial assembles, takes cognisance of the oence and direct to proceed further, the trial must be deemed to have been commenced, as all the steps from the stage are integrally connected with the trial. When Court martial assembled on February 25, 1987 and found prima

268

Union Of India v. Major General Madan Lal Yadav 1996 Court martial assembled, took oath in terms of Rule 45; applied their mind under Rule 41 to proceed further under Rule 43. The oath envisages thus: .....I will well and truly try the accused before the Court according to the evidence and that I will duly administer justice according to the Army Act without partiality, favour or aection and if any doubt shall arise, then, according to my conscience, the best of my understanding and the customs of war and..... The scheme would indicate that there is a distinction between inquiry and trial and the trial commences only when the Court Martial arraigns the accused on the charge against him under Rule 48 whereby the accused shall be required to plead separately to each charge. Since the above Procedure had not been followed, the trial did not commence. It is further argued that the accused has a valuable right under Rule 48 to object to the charge. If the objection is sustained, the charge is required to be amended under Rule 50. He has also right to object to the members of the Court Martial empanelled. He is also entitled under Rule 51 to object to the jurisdiction of the Court Martial. Until the Court martial assembles to proceed further, the trial cannot be said to have commenced. The question, therefore, is: as to when the trial commences within the meaning of Section 123 [2]? With a view to appreciate the rival contentions it is necessary to grasp the relevant provision of the Act and the Rules. Article 33 of the Constitution empowers the Parliament to modify the funda-

facie case against the respondent to proceed with the trial and directed to secure his presence, it was discovered that the respondent had escaped the lawful open military custody and made himself unavailable. Consequently, Court Martial could not proceed with the trial of the respondent until he was arrested and brought before the Court martial or he himself surrendered. Since presence and participation by the respondent in the trial was a condition precedent, due to non-availability of the respondent, the Court martial could not be proceeded with. After re-appearance of the respondent or, March 1, 1987, further steps were taken to conduct the trial by the Court martial. The trial, therefore, was not barred by operation of sub-section [2] of Section 123. Shri Bobde, appearing for the respondent, on the other hand, contended that Section 122 [3] provides for exclusion of time during which the accused avoided arrest after the commission of the oence. Similar provision, preceding amendment to sub-section [2] of Section 123 is not expressly made available on statute. The oence being of criminal nature, having regard to the provisions of Section 123 limitation should strictly be construed, particularly when it involves liberty of the citizen. He argues that the legislature had made a dichotomy of Sections 122 and 123 of the Act. The time during which the accused was not available cannot, therefore, be excluded in computation of six months period prescribed in sub-section [2] of Section 123. It is further contended that the trial commenced only when the

269 mental rights enshrined in Part III in their application to the members of the Armed Forces or members of the Forces charged with the maintenance of the public order etc. The Act was made to regulate the governance of the regular Army. Under Section 2 [1] (a), ocers shall be subject to the Act wherever they may be. Under Section 3, unless the context otherwise requires active service as applied to a person subject to this Act, means the time during which such person is attached to, or forms part of, a force which is engaged in operations against any enemy, or... Court Martial under sub-section [vii] means a court martial held under the Act. Military custody under sub-section [xiii] means the arrest or connement of a person according to the usages of the service and includes naval or air force custody. Oence has been dened under sub-section [xvii] to mean any act or omission punishable under the Act and includes a civil oence as hereinbefore dened. Chapter IX deals with arrest and proceedings before trial. Section 101 enables custody of oenders. Under sub-section [1] thereof, any person subject to the Act who is charged with an oence may be taken into military custody. Under subsection [3] thereof, an ocer may order into military custody of any ocer, though he may be of a higher rank, engaged in a quarrel, aray or disorder. Chapter X deals with Court Martial The details thereof are not material for the purpose of this case since the admitted position is that G.C.M. was ordered against the respondent which is not under challenge. Section 122 deals with period of limitation for trial of any person subject to the Act. As stated earlier, sub-section [3] thereof make provision for exclusion of time, in computation of the prescribed periods i.e., of any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the oence. Section 123 deals with liability of oenders who cease to be subject to the provisions of the Act. Sub-section [1] thereof envisages that where an oence under the Act had been committed by any person while subject to the Act, and he has ceased to be so subjects he may be taken into and kept in military custody, and tried and punished for such offence as if he continued to be so subject In other words, though the ocer governed by the provisions of Act ceases to be the person governed by the provisions of the Act, no trial for an oence under the Act shall be proceeded with and no such person shall be tried for an oence unless the trial commences within six months of his ceasing to be subject to the Act. Chapter V of the Rules relates to investigation of the charge and trial by court martial. Rule 22 deals with hearing of charge. Subrule [1] provides the procedure to deal with the charge in the presence of the accused who shall have full liberty to cross-examine any witness examined against him and he may call any witness and make any statement in his defence. Rule 23 provides procedure for taking down the summery of evidence. Rule 24 empowers remand of the accused. Rule 25 pre-

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Union Of India v. Major General Madan Lal Yadav 1996 vant for the purposes of this Court. The rule reads as under: 41. Inquiry be court as to legal constitution. [1] 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 ranks, names, and corps of the ocers appointed to serve on the court; and the court shall satisfy itself that it is legally constituted; that is to say(a) that, so far as the court can ascertain, the court has been convened in accordance with the provisions of the Act and these rules; (b) that the court consists of a number of ocers, not less than the minimum required by law and, save as mentioned in rule 38, not less than the number detailed; (c) that each of the ocers so assembled is eligible and not disqualied for serving on that court martial; and

scribes procedure on charge against ocer. Rule 26 provides procedure for summary disposal of the charge against the ocers. If delay occasions in postal, under Rule 27, it is required to be reported. Rule 28 deals with framing of charge-sheet containing the details and issue or issues to be tried by a Court Martial. The charge-sheet may contain one charge or several charges. Rule 29 deals with commencement of the charge-sheet. Rule 30 contains contents of the charge. Rule 33 provides procedure for preparation or defence by the accused. Rule 34 enjoins that before the accused is arraigned for an oence, he shall be informed by an ocer of every charge for which he is to be tried and also that on his giving the names of the witnesses whom he desire to call in his defence, reasonable steps will be taken for procuring their attendance etc. Rule 35 deals with Joint-trial of several accused persons. Due to military exigencies or on grounds of necessity of discipline Rule 36 empowers the suspension of rules.

(d) that in the case of general court martial, the oces are of the In Section 2 of the Rules deal- required rank. ing with General and District Courts [2] The court shall, further, if it is Martial, convening the Court mar- a general or district court martial to tial has been envisaged. Under Rule which a judge advocate has been ap38, Court Martial may be adjourned pointed, ascertain that the judge adif before arraigning the accused in- vocate is duly appointed and is not sucient number of ocers of the disqualied for sitting on that court Court martial are noticed. Rule 39 martial. speaks of disqualication and ineli[3] The court, if not satised with gibility of ocers for Court Martial. regard to the compliance with the Rule 40 envisages composition of the aforesaid provisions, shall report its GCM Rule 41 prescribes procedure opinion to the convening authority, to be followed at trial and constitu- and may adjourn for that purpose. tion of Court Martial which is releRule 43 prescribes procedure of

271 trial - challenge and swearing. if the court has satised itself that the provisions of Rule 41 and 42 have been complied with, it shall cause the accused to be brought before the court and the prosecutor, who must be a person subject to the Act, shall take his due place in the court. As seen, under Rule 45, oath is to be administered to the members of the Court Martial etc. They are required to swear by Almighty God or armation to well and truly try the accused. Similar oath may be administered to Judge Advocate and other ocers under Rules 46 and 47. Rule 48 speaks of arraignment of accused. It envisages that after the members of the Court Martial and other persons are sworn or armed as above mentioned, the accused shall be arraigned on the charges against him which shall be read out and, if necessary, translated to him in his mother tongue, and he shall be required to plead separately to each charge. Rule 49 deals with objection by the accused to the charge and Rules 50 allows amendment of the charge, if necessary. Rule 51 gives him right to take a special plea on the jurisdiction of GCM and under Rule 52 he can plead guilty or not guilty. Rule 53 deals with plea in bar and Rule 54 with procedure after plea of guilty. Rule 56 deals with plea of not guilty, application and adduction of evidence by the prosecution. Rule 57 deals with plea of no case and Rule 58 with close of case for the prosecution and procedure for defence where accused does not call witness. Rule 59 deals with the defence where the accused calls witnesses and Rule 60 with summing up of the case by the judge advocate. Rule 61 deals with consideration of nding and Rule 62 with forms record and announcement of nding. Rule 63 concerns procedure on acquittal and Rule 64 procedure on conviction. Rule 65 gives power to the Court Martial to impose sentence and Rule 66 deals with recommendation to mercy. Rule 67 deals with announcement of sentence and signing and transmission of proceedings. It is true, as rightly contended by Shri Bobde that on administration of oath to the members of the Court Martial, the members swear to try the accused according to the provisions of Act and Rules etc. and to administer justice according to the Act without partiality, favour or aection. Under Rule 44, names of the members of the Court and presiding ocer will be read over to the accused. He shall be asked, under Section 130, of his objections, if any, for trial by any ocer sitting on the court. Any such objection shall be disposed or according to the Rules. The presence and participation by the accused, therefore, is an indispensable pre-condition. Rule 42 enjoins the court to be satised that the requirements of Rule 41 have been complied with. It shall, further, satisfy itself in respect of the charge brought before it and then proceed further. If he pleads guilty, the procedure contemplated in Rule 54 is to be followed and if he pleads not guilty, the procedure contemplated in Rule 56 shall be proceeded with and evidence recorded etc.

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Union Of India v. Major General Madan Lal Yadav 1996 of law or facts, before a court that has proper jurisdiction. In Websters Comprehensive Dictionary International Edition, at page 1339, the word trial is dened thus: ....The examination, before a tribunal having assigned jurisdiction, of the facts or law involved in ail issue in order to determine that issue. A former method of determining guilt or innocence by subjecting the accused to physical tests of endurance, as by ordeal or by combat with his accuser... In the process of being tried or tested... Made or performed in the course of trying or testing....

The words trial commences employed in Section 123 [2] shall be required to be understood in the light of the scheme of the Act and the Rules. The question is as to when the trial is said to commence? The word trial according to Collins English Dictionary means:

the act or an instance of trying or proving; test or experiment... Law. a. the judicial examination of the issues in a civil or criminal cause by a competent tribunal and the determination of these issues in accordance with the law of the land. b. the determination of an accused persons guilt or innocence after hearing evidence for the prosecution and nor The word commence is dened the accused and the judicial exami- in Collins English Dictionary to nation of the issues involved. mean to start or begin; come or According to Ballentines Law cause to come into being, operation Dictionary [2nd ed.] trial means: etc. In Blacks Law Dictionary it is an examination before a compe- dened to mean : to initiate by pertent tribunal according to the law forming the rst act or step. To beof the land, of the facts or law put gin, institute or start Civil action in in issue in a cause, for the purpose most jurisdictions is commenced by of determining such issue. When a ling a complaint with the court.... court hears and determines any issue Criminal action is commenced within of fact or law for the purpose of de- statute of limitations at time prelimitermining the right of the parties, it nary complaint or information is led with magistrate in good faith and a may be considered a trial warrant issued thereon... A crimiIn Blocks Law Dictionary [Sixth nal prosecution is commenced [1] Edition] Centennial Edition, the when information is laid before magword trial is dened thus: A judiistrate charging commission of crime, cial examination and determination and a warrant of arrest is issued, or of issues between parties to action, [2] when grand jury has returned an whether they be issues of law or of indictment. fact, before a court that has jurisdicIn the Words and Phrases [Pertion... A judicial examination, in accordance with law of the land, of a manent Edition] Vol.42A, at page cause, either civil or Criminal, of the 171, under the head Commenceissues between the parties, whether ment, it is stated that .4 trial commences at least from the time

273 when work of empanelling of a jury be administered to the members of begins. the court martial the Judge AdvoThe regular It would, therefore, be clear that cate and the sta. trial begins and ends with recordtrial means act of proving or judicial examination or determination of ing the proceedings either convicting the issues including its own jurisdic- and sentencing or acquitting the action or authority in accordance with cused. Thus two views would be poslaw or adjudging guilt or innocence of sible while considering as to when the the accused including all steps neces- trial commences. The broader view sary thereto. The trial commences is that the trial commences the mowith performance of the rst act or ment the GCM assembles for prosteps necessary or essential to pro- ceeding with the trial, consideration ceed with trial. It would be seen from of the charge and arraignment of the the scheme of the Act and the Rules accused to proceed further with the that constitution of court martial for trial including all preliminaries like trial of an oence under the Act is objections to the inclusion of the a pre-condition for commencement of members of the Court Martial. readtrial. Members of the court martial ing out the charge/charges, amendand the presiding ocer on nomina- ment thereof etc. The narrow view is tion get jurisdiction to try the person that trial commences with the actual for oence under the Act. On their administration of oath to the memassembly, the accused has the right bers etc. and to the prosecution to to object to the nomination of any examine the witnesses when the acor some of the members of the court cused pleads not guilty. The quesmartial or even the presiding ocer, tion then emerges: which of the two On the objection(s) so raised, it is to views would be consistent with and be dealt with and thereafter the pre- conducive to a fair trial in accordance liminary report recorded after sum- with the Act and the Rules? mary trial and the charge trammed would be considered. The charge is required, if need be or asked by the accused to be read over and could be objected by the accused and found tenable, to be amended. Thereafter, the accused would be arraigned and in his presence the trial would begin. The accused may plead guilty or not guilty. If he pleads guilty, the procedure prescribed under Rule 54 should be followed and if he pleads not guilty, procedure prescribed under Rule 56 is to be followed. Before actual trial begins, oath would It is true that the legislature has made a distinction between Section 122 [3] and Section 123 [2]. While in the former, power to exclude time taken in specied contingencies is given, in the little, no such provision is made for exclusion of the time since the accused will be kept under detention after he ceased to be governed by the Act. It is equally settled law that penal provisions would be construed strictly. As posed earlier, which of the two views broader or narrow - would subserve the object are purpose of the Act is the ques-

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Union Of India v. Major General Madan Lal Yadav 1996 GCM and the right of the member of the GCM arises with their empanelment GCM and they get power to try the accused the moment they assemble and commence examination of the case, i.e., charge-sheet and the record. The trial, therefore, must be deemed to have commenced the moment the GCM assembles and examination of the charge is undertaken. Our view gets fortied by two decisions of this Court in Harish Chandra Baijapi & Anr. v Triloki Singh & Anr. [AIR 1957 SC 444] wherein the question was: as to when the trial begins in an election dispute under the provisions of the Representation of the People Act, 1951? The respondents had led election petitions against the appellant under Section 81 of that Act alleging that the appellant had committed number of corrupt practices and the respondents prayed for declaration that the appellants election was void. After trial, the election was set aside against which the appeal came to be led ultimately in this Court. One of the questions was: whether the particulars of the corrupt practices and amendment therefore is vaild in law and whether they are maintainable in appeal? In that context, the question arose: as to when the trial began? It was contended therein that the order amending pleadings under Order 6 Rule 17, CPC was not part of the trial and, therefore, it could not be subject of consideration in appeal. Considering the above question, this Court held that: Taking the rst contention, the point for decision is as to what the

tion We are of the considered view that from a conpectus of the scheme or the Act and Rules the broader view appears to be more conducive to and consistent with the scheme of the Act and the Rules. As soon as GCM assembles the members are charged with the duty to examine the charge/charges framed in summary trial to give an opportunity to the accused to exercise his right to object to the empanelment of member/members of the GCM to amend the charge and the right to plead guilty or not guilty. These procedural steps are integral and inseparable parts of trial. If the accused pleads guilty further trial by adducing evidence by the prosecution is obviated. The need for adduction of evidence arises only where the accused pleads not guilty. In that situation, the members are required to take oath or armation according to Rule 45. It is to remember that the members get right power and duty to try an accused only on appointment and the same ends with the close of the particular case. Therefore, Rule 45 insists on administration of oath in the prescribed manner. For a judicial ocer the act of appointment gives power to try the oender under Criminal Procedure Code; warrant of appointment by the President of India and the oath taken as per the form prescribed in Schedule III of the Constitution empowers the High Court/Supreme Court Judges to hear the petition or appeals. For them, need to take oath on each occasion of trial or hearing is obviated. Therefore, the occasion to take oath as per the procedure for

275 word trial in s.90(2) means. According to the appellants, it must be understood in a limited sense, as meaning the nal hearing of the petition, consisting of examination of witnesses, ling documents and addressing arguments. According to the respondent, it connotes the entire proceedings before the Tribunal from the time that the petition is transferred to it under s.86 of the Act until the pronouncement of the award. While the word trial standing by itself is susceptible of both the narrow and the wider senses indicated above, the question is, what meaning attaches to it in s.90(2), and to decide that, we must have regard to the context and the setting of the enactment. Now, the provisions of the Act leave us in no doubt as to in what sense the word is used in s.90(2). It occurs in Chapter III which is headed Trial of election petitions. Section 86(4) provides that if during the course of the trial any member of a Tribunal is unable to perform his functions, the Election Commission is to appoint another members, and thereupon the trial is to be continued. This provision must apply to retirement or relinquishment by a member, even before the hearing commences and the expression during the course of trial must therefore include the stages prior to the hearing. Section 88 again provides that the trial is to be held at such places as the Election Commission may appoint. The trial here must necessarily include the matters preliminary to the hearing such as the settlement of issues, issuing direction and the like. After the petition is transferred to the Election Tribunal under s.86, various steps have to be taken before the stage can be set for hearing it. The respondent has to le his written statement, issues have to be settled. If trial for the purpose of s.90(2) is to be interpreted as meaning only the hearing, then what is the provision of law under which the Tribunals to call for written statements and settle issues? Section 90(4) enacts that when an election petition does not comply with the provisions s.81, s.83 or s.117, the Tribunal may dismiss it. But if it does not dismiss it, it must necessarily have the powers to order rectication of the defects arising by reason of non-compliance with the requirements of s.81, s.83 or s.117. That not being a power expressly conferred on it under s.92 can only be sought under s. 90(2), and resort to that section can be had only if trial is understood as including proceedings prior to hearing. Section 92 enacts that the Tribunal shall have powers in respect of various matters which are vested in 3 court under the Civil Procedure Code when trying a suit, and among the matters set out therein are discovery and inspection, enforcing attendance of witnesses and compelling the production of documents, which clearly do not form part of the hearing but precede it. In our opinion, the provisions of Chapter III read as a whole, clearly show that trial is used as meaning the entire proceedings before the Tribunal from the time when the petition is transferred to it under s.86 until the pronounce-

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Union Of India v. Major General Madan Lal Yadav 1996 ing Ocer have taken their respective places but the accused is not present before the court. The Prosecutor submits that the accused Shri Madan Lal Yadava formerly Lt Gen [Substantive Maj Gen] Madan Lal Yadava of Army Ordnance Corps School, Jabalpur retired from service with eect from 31 August 86 [AN]. He has been subjected to the provisions of Section 123 of the AA with eect from the same date and put under open arrest with eect from 1200 h on 30 August 1986. According to a note dated 15 February 1987, found in his room the accused had proceeded to Bombay to engage a suitable counsel. Though he had stated therein that he would keep the Comdt, NDA Khadakwasla informed about his whereabouts, they are not yet known. Vigorous eorts are being made to trace him out and produce him before the Court. In view of this he requests that the Court be adjourned till 1100 h 26 February 1987. The Defending Ocer, IC-6727F Maj Gen Yadav Yitendra Kumar, who is present in the court submits in reply that he too had had no opportunity to get in touch with the accused and as such has no information regarding whereabouts of the accused. Advice by the Judge Advocate Gentlemen, you have heard the submission made by the Prosecutor with regard to the absence of the accused as also reply of the learned Defending Ocer. The Prosecutor has given the detailed circumstances in which the accused had escaped from mili-

ment of the award. In Om Prabha Jain v. Gian Chand & Anr. [AIR 1959 SC 837], it was held that the word trial clearly means entire proceedings before tribunal from the reference to it by the Election Commission to the conclusion. This Court found no reason to attribute a restricted meaning to the word trial in Section 98 of the Representation of the People Act, 1951. In the light of the above discussion, we hold that the trial commences the moment GCM assembles to consider the charge and examines whether they would proceed with the trial. The preceding preliminary investigation is only part of the process of investigation to nd whether a charge could be framed and placed before the competent authority to constitute GCM. On February 25, 1987, the GCM assembled and recorded the proceedings as under: Trial of Shri Yadava, Madan Lal formerly IC-5122N Lt. Gen [Substantive Maj Gen] Yadava Madan Lal of Army Ordnance Corps. School Jabalpur, attached to National Defence Academy, Khadakwasla. The order convening the court, the charge-sheet and the summary of evidence are laid before the court. The court satisfy themselves as provided by Army Rules 41 and 42. I have satised myself, that no Court of Inquiry was held respect the matters forming the subject or the charge before this court martial. At this stage, the court observe that the Prosecutor and the Defend-

277 tary custody. He further submitted before you that vigorous eorts were being made to secure his presence before you to stand the trial and to this eect, prayed for the adjournment of the Court until 1100 h on 26 Feb 87. In view of the foresaid submission made by the Prosecutor, I advise you to consider granting him suitable adjournment to secure the presence of the accused. The Court decide to adjourn until 1100 h 26th Feb 1987. The above decision is announced in the court. yet been able to nd out his whereabouts and as such unable to produce him before the court. It is, however, earnestly hoped that he would be able to get some clue about his whereabouts by 01 March 1987. In that event he would be able to produce him before the court on 02 March 1987. He therefore, prays that an adjournment until 1000 h 02 March 1987 be granted. He further gives an undertaking that he will seek no further adjournment on this account and if he is not in a position On February 26, 1987 when it to produce the accused by that dates again assembled, the GCM was in- will seek sine die adjournment of the formed by the prosecutor that de- Court. The learned Defending Ocer spite their diligent steps taken to have the accused traced and pro- submits that he too has so far no induced before the court they were un- formation about the accused. able to do that and a request for adAdvice by the Judge Advocate: journing the proceedings to the next Gentlemen, you have heard the day was made and the defence counsubmissions of the Prosecutor and sel also had expressed his inability to the learned Defending Ocer. The know the whereabouts of the responProsecutor submitted before you dent. On advice by the Judge Adthat he would be in a position to provocate, the court adjourned the case duce the accused on 02 March 1987 to February 27, 1987. Similarly, the and that he would not seek any furcase was adjourned to February 28, ther adjournment of the Court on 1987 on which date when it assemthis account in case he failed to sebled, the proceedings were recorded cure his presence on or before that as under: date. In the interest of the justice, At 1000 h on 28 February 1987, you may therefore, consider granting Court re-assemble, pursuant to the him yet another adjournment to help adjournment; present the same mem- secure the presence of the accused . bers and the Judge Advocate as on The Court decide to adjourn un27 February, 1987. The Court obtil 0900 h on 2 March 1987. serve that the accused is still not Accordingly, on March 2, 1987 present before the court. when the court re-assembled the acThe Prosecutor submits that decused was present, the charge was spite the best eorts including takhanded over to him and he asked for ing help from the various civil agenadjournment for 15 days and on adcies to locate the accused he has not

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Union Of India v. Major General Madan Lal Yadav 1996 Even if narrow interpretation is plausible, on the facts in this case, we have no hesitation to conclude that the trial began on February 25, 1987 on which date the Court Martial assembled, considered the charge and the prosecution undertook to produce the respondent who was found escaped from the open detention, before the Court. It is an admitted position that GCM assembled on February 25, 1987. On consideration of the charge, the proceedings were adjourned from day to day till the respondent appeared on March 2, 1987. It is obvious that the respondent had avoided trial to see that the trial would not get commenced. Under the scheme of the Act and the Rules, presence of the accused is a precondition for commencement of trial. In his absence and until his presence was secured, it became dicult, may impossible, to proceed with the trial of the respondent-accused. In this behalf, the maxim nullus commodum capere potest de injuria sua propriameaning no man can take advantage of his own wrong - squarely stands in the way of avoidance by the respondent and he is estopped to plead bar of limitation contained in Section 123 [2]. In Brooms Legal Maximum [10th Edn.] at page 191 it is stated it is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure. The reasonableness of the rule being manifest, we proceed at once to show its

vice it was adjourned to March 18, 1987 on which day the respondent informed the court of his ling the writ petition and the assurance given by the counsel appearing for the appellants in the High Court not to proceed with the trial. Accordingly, it was adjourned pending Writ Petition No.301 of 1987, the subject of this appeal. It would thus be clear that the respondent having escaped from the open military detention caused adjournment of the trial beyond February 28, 1987 to secure the presence and arrangement of the respondent at the trial by GCM. Our conclusion further gets fortied by the scheme of the trial of a criminal case under the Code of Criminal Procedure, 1973, viz., Chapter XIV Conditions requisite for initiation of proceedings containing Sections 190 to 210, Chapter XVIII containing Sections 225 to 235 and dealing with trial before a Court of Sessions pursuant to committal order under Section 209 and in Chapter XIX trial of warrant-cases by Magistrates containing Sections 238 to 250 etc. It is settled law that under the said Code trial commences the moment cognizance of the offence is taken and process is issued to the accused for his appearance etc. Equally, at a Sessions trial, the court considers the committal order under Section 209 by the Magistrate and proceeds further. It takes cognizance of the oence from that stage and proceeds with the trial. The trial begins with the taking of the cognizance of the oence and taking further steps to conduct the trial.

279 application by reference to decided cases. It was noted therein that a man shall not take advantage of his own wrong to gain the favourable interpretation of the law. In support thereof, the author has placed reliance on another maxim frustra legis auxilium quoerit qui in legem committit. He relies on Perry v. Fitzhowe [8 Q.B. 757]. At page 192, it is stated that if a man be bound to appear on a certain day, and before that day the obligee put him in prison, the bond is void. At page 193, it is stated that it is moreover a sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. At page 195, it is further stated that a wrong doer ought not to be permitted to make a prot out of his own wrong. At page 199 it is observed that the rule applies to the extent of undoing the advantage gained where that can be done and not to the extent of taking away a right previously possessed. The Division Bench of the High Court has recorded the nding that the respondent has absconded from open military detention. From the narration of the facts it is clear that the respondent was bent upon protracting preliminary investigation. Ultimately, when the GCM was constituted, he had challenged his detention order. When he was unsuccessful and the trial was to begin he escaped the detention to frustrate the commencement of the trial and pleaded bar of limitation on and from March 1, 1987. The respondent having escaped from lawful military custody and prevented the trial from being proceeded with in accordance with law, the maxim nullus commodum capere potest de injuria sua propria squarely applies to the case and he having done the wrong, cannot take advantage of his own wrong and plead bar of limitation to frustrate the lawful trial by a competent GCM. Therefore, even on the narrow interpretation, we hold that continuation of trial from March 2, 1987 which commenced on February 25, 1987 is not a bar and it is a valid trial. It is next contended that trial of the respondent at this distance of time is not justiciable. In support of this contention, reliance is placed by Shri Bobde on Devi Lal & Anr. v. The State of Rajasthan [(1971) 3 SCC 471] wherein the High Court had conrmed the conviction under Section 302 read with Section 34, IPC and sentence for imprisonment for life. This Court found that the prosecution had not proved as to which of the two persons had opened the re as found by the Sessions Court and the distinction between Section 149 and 34, IPC was not clearly noticed by the Sessions Court and the High Court. When retrial was sought for by the prosecution, this Court rejected the contention on the ground that retrial at such a belated stage was not justiable. The ratio has no application to the facts in this case. Therein, the trial was proceeded with and when the accused was convicted by the Sessions Court and conrmed by the High Court, this Court found that the prosecution had not established the case in accordance with law and had not proved the guilt be-

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Union Of India v. Major General Madan Lal Yadav 1996 ducted by GCM at Delhi. We nd no equity in this behalf. The witnesses are at Pune; records are at Pune, and the oence has taken place at Pune. Therefore, the GCM should be conducted at Pune. We nd no justication in shifting the trial to Delhi. The appeal is accordingly allowed. The judgment of the High Court is set aside. The writ petition stands dismissed. The appellants are at liberty to secure the presence of the respondent; it would be open to the respondent to surrender himself to closed military detention; and the respondent would keep him in detention and conduct the trial as expeditiously as possible.

yond reasonable doubt. Under those circumstances, this Court had rightly declined to order retrial. But the ratio does not t into the facts of this case. It is seen that the respondent had frustrated the trial by escaping from detention and reappeared after the limitation for trial of the oence was barred. Therefore, acceptance of the contentions would amount to putting a premium on avoidance. We nd ourselves unable to agree with the view expressed by the Assam High Court in Gulab Nath Singh v. The Chief of the Army Sta [1974 Assam LR 260]. It is next contended that since the respondent had surrendered himself, trial could be con-

Chapter 21

Major Kadha Krishan v. Union Of India 1996

Major Kadha Krishan v. Union Of India & Ors on 25 March, 1996 Equivalent citations: 1996 SCC (3) 507, JT 1996 (3) 650 Author: M Mukherjee Bench: M M.K. JUDGMENT M.K. MUKHERJEE, J. Leave granted.

The appellant was a permanent Commissioned Ocer of the Indian PETITIONER: Army holding the substantive rank MAJOR KADHA KRISHAN of Major. While he was posted at v. the Military Farm in Jullunder City he was served with a notice dated RESPONDENT: September 10, 1990 issued under the UNION OF INDIA & ORS. directions and on behalf of the Chief DATE OF JUDGMENT: of the Army Sta calling upon him 25/03/1996 to show cause why his services should not be terminated under Section 19 BENCH: of the Army Act, 1950 (Act for MUKHERJEE M.K. (J) short) read with Rule 14 of the Army BENCH: Rules, 1954 (Rules for short) for MUKHERJEE M.K. (J) the misconducts he was found to have committed during his tenure as G.B. PATTANAIK (J) the Ocer in-charge of the Military CITATION: Farm, Jaipur. The misconducts are 1996 SCC (3) 507 JT 1996 (3) 650 set out in paragraph 3 of the no1996 SCALE (3)241 tice but as they are not germane for the purpose of this appeal, it is not ACT: necessary to detail them. The reaHEADNOTE: sons which prompted the Chief of the JUDGMENT: Army Sta to take recourse to the

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Major Kadha Krishan v. Union Of India 1996

above provisions of the Act and the passing the above order the learned Rules are contained in paragraph 4 Judge rstly held that the appellant of the notice, which reads as under: was made a scape goat for the lapses And whereas the Chief of the and delinquencies of others. As reArmy Sta is further satised that gards the applicability of Section 19 your trial for the above misconduct of the Act and Rule 1 of the Rules is impracticable having become time the learned Judge concurred with the barred by the time the court of in- submissions of the appellant relying quiry was nalized and he is of the principally upon the Division Bench opinion that your further retention in judgment of the Delhi High Court in Lt. Col. (T.S.) H.C. Dhingra service is undesirable. v. Union of India & Anr. 1988 In due course the appellant (2) Delhi lawyer 109. In appeal preshowed cause against his proposed ferred by the respondent - Union of termination of services but it did India a Division Bench of the High not nd favour with the authorities. Court set aside the above judgment Hence, on their recommendations, of the learned Single Judge and disthe Central Government issued an missed the writ petition of the appelorder on February 28, 1992 terminatlant. The Division Bench held that ing the service of the appellant. Agthe view taken by the Delhi High grieved thereby the appellant led a Court in H.C. Dhingras case (supra) writ position before a learned Judge was not correct and that proceedings of the Rajasthan High Court. In asunder Section 19 of the Act read with sailing the order of termination the Rule 14 of the Rules could be taken principal ground that was raised by even after the expiry of the period of the appellant was that the provisions limitation prescribed under Section of Section 19 of the Act and Rule 14 122 of the Act. The ndings of fact of the Rules could not be inverted recorded by the learned Single Judge as the period of limitation prescribed in favour of the appellant were also under Section 122 of the Act for holdupset. The above order of the Diviing his trial by a Court Martial was sion bench is under challenge in this long over. Besides, it was contended appeal. that the satisfaction of the authoriTo appreciate the contentions ties that it was impracticable to hold the trial was not obtained in accor- raised by Mr. Ramachandran in supdance with Rule 14. The appellant port of the appeal it will be approprialso denied that he was guilty of ate to rst refer to the relevant provithe misconducts alleged in the no- sions of the Act and the Rules. Sectice and gave out his defence against tion 19 of the Act reads as under: Subject to the provisions of this the same. The learned Judge allowed the writ petition, quashed the or- Act and the rules and regulations der under challenge and directed that made thereunder the Central Govthe appellant be reinstated in service ernment may dismiss or remove from with all consequential benets. In the service, any person subject to

283 this Act. tunity to show cause in the manner The other section of the Act specied in sub-Rule (2) against such which need reproduction is Section action: 122 which, at the material time, Provided that this sub-rule shall stood as under: (1) Except as pro- not apply vided by sub- section (2), no trial by (a) when the service is termicourt martial of any person subject nated on the ground of conduct to this Act for any oence shall be which has led to his conviction by a commenced after the expiration of a criminal court; or period of three years from the date (b) where the Central Governof such oence. ment is satised that for reasons, to (2) The provisions of sub-section be recorded in writing, it is not ex(1) shall not apply to a trial for an pedient or reasonably practicable to oence of desertion or fraudulent en- give to the ocer an opportunity of rollment or for any of the oences showing cause. mentioned in Section 37. (2) When after considering the (3) In the computation of the pe- reports on an ocers misconduct, riod of time mentioned in sub- sec- the Central Government, or the tion (1), any time spent by such per- Chief of the Army Sta is satised son as a prisoner of war, or in enemy that the trial of the ocer by a court territory, on in evading arrest after martial is inexpedient or impracticathe commission of the oence, shall ble, but is of the opinion that the furbe excluded. ther retention of the said ocer in (4) No trial for an oence of de- the service is undesirable, the Chief sertion other than desertion on ac- of the Army Sta shall so inform the tive service or of fraudulent enroll- ocer together with all reports adment shall be commenced if the per- verse to his had he shall be called son in question, not being an ocer, upon to submit, in writing, the exhas subsequently to the commission planation. of the oence, served continuously (emphasis supplied) in an exemplary manner for not less Mr. Ramachandran rst conthan three years with any portion of tended that one of the requisites to the regular Army. invoke the summary procedure enRule 14 of the Rules, so far as it visaged under Rule 14 (2) to termiis relevant for our present purposes, nate the services of an ocer by the reads as follows: Central Government in exercise of its Termination of service by the powers under Section 19 of the Act Central Government on account of is to obtain a satisfaction that his misconduct - (1) When it is proposed trial by a Court Martial is inexpeto terminate the service of an ocer dient or impracticable. Such a satisunder Section 19 on account of mis- faction, according to Mr. Ramachanconduct, he shall be given an oppor- dran, can be arrived only at a time

284

Major Kadha Krishan v. Union Of India 1996 must therefore be held that so long as an Ocer can be legally tried y a Court Martial the concerned authorities may, on the ground that such a trial is not impracticable for inexpedient, involve Rule 14 (2). In other words, once the period of limitation of such a trial is over the authorities cannot take action under Rule 14 (2). While passing the impugned order the Division Bench however did not at all consider, while interpreting Rule 14 (2), the import of the words impracticable or inexpedient as appearing therein and proceeded on the basis that since Section 127 of the Act (since repealed) permitted trial even after a conviction or acquittal by a Court Martial, it necessarily meant that the Rule could be pressed into service even after the period of limitation. It appears that in making the above observation the High Court did not notice that Section 127 relates to a trial by a criminal court and not Court Martial and speaks of a stage after the trial by the letter is over. The matter can be viewed from another angle also. So far as period of limitation of trials by Court Martial is concerned Section 122 of the Act is a complete Code in itself for not only it provides in its sub-section (1) the period of limitation for such trials but species in sub-section (2) thereof the offences in respect of which the limitation clause would not apply. Since the term of the above section is absolute and no provision has been made under the Act for extension of time like Section 473 Criminal Procedure Code - it is obvious that any trial commenced after the period of lim-

when trial by a Court Martial is permissible or possible. As in the instant case, admittedly, such a trial was barred by limitation under Section 122 of the Act the above Rule could not be invoked. We nd much substance in the above contention of Mr. Ramachandran. It is not in dispute that at the time the impugned notice was sent, no trial of the appellant by Court Martial could be held for sub-section (1) of Section 122 (as it then stood) clearly envisaged that it should not be commenced after expiration of three years from the date of commission of the oence which in the instant case was about 7 years prior to the issuance of the notice, indeed, as seen earlier, in the notice itself it is stated that the trial had become time barred. When, the trial itself was legally impossible and impermissible the question of its being impracticable, in our view cannot or does not arise, Impracticability is a concept dierent from impossibility for while the latter is absolute, the former introduces at all events some degree of reason and involves some regard for practice. According to Websters Third New International Dictionary impracticable means not practicable; incapable of being performed or accomplished by the means employed or at command. Impracticable presupposes that the action is possible but being to certain practical diculties or other reasons it is incapable of being performed. The same principle will equally apply to satisfy the test of inexpedient as it means not expedient; disadvantageous in the circumstances, inadvisable, impolitic. It

285 itation will be patently illegal. Such a provision of limitation prescribed under the Act cannot be overridden or circumvented by an administrative act, done in exercise or powers conferred under a Rule. Mr. Ramachandran was, therefore, fully justied in urging that power under Rule 14 of the Army Rules could not be exercised in a manner which would get over the bar of limitation laid down in the Act and that if Rule 14 was to be interpreted to give such power it would clearly be ultra vires. We are therefore in complete agreement with the observations made by the Delhi High Court in H.C. Ohinuras case (supra) that in purported exercise of administrative power Under Rule 14, in respect of allegations of misconduct tribal by Court Martial, the authorities cannot override the statutory bar of subsection (1) of Section 122 of the Act for no Administrative act or at can discard, destroy or annul a statutory provision. The other contention of Mr. Ramachandran was that the satisfaction with regard to inexpediency or impracticability of a trial by Court Martial must be only on a consideration of the reports of misconduct. According to Mr. Ramachandran if on a perused of the reports the authorities found that the nature of misconduct or the context in which it had been committed were such that it was impracticable or inexpedient to hold the Court Martial, the procedure under rule 14 might be resorted to. In other words, Mr. Ramachandran submitted, the satisfaction regarding the inexpediency or impracticability to hold a Court Martial must ow from the nature and the context of the misconduct itself and not from any extraneous factor which in the instant case was that the Court Martial proceedings would be time barred. This contention of Mr. Ramchandran is also, in our view, indefensible. As noticed earlier, Rule 14 (2) opens with the words when after considering the reports on an ocers misconduct, the Central Government, or the Chief of the Army Sta is satised.......... It is evident, therefore, that the satisfaction about the inexpediency or impracticability of the trial has to be obtained on consideration of the reports on the ocers misconduct. That necessarily means, that the misconduct and other attending circumstances relating thereto have to be the gole basis for obtaining such a satisfaction. The purport of the above Rule can be best understood by way of an illustration. The Chief of Army Sta receives a report which reveals that an Army Ocer has treacherously communicated intelligence to the enemy - an Oence punishable under Section 34 of the Act. He however nds that to successfully prosecute the ocer it will be necessary to examine some witnesses, ensuring presence of whom will not be feasible and exhibit in the interest of the security of the State. In such an eventuality he may legitimately invoke the Rule to dispense with the trial on the grounds that it would be impracticable and/or inexpedient. But to dispense with a trial on a satisfaction doctors the misconduct - like

286

Major Kadha Krishan v. Union Of India 1996 and restore that of the learned Single Judge. The appeal is thus allowed with costs which is assessed at Rs. 10,000/-.

the bar of limitation in the present case - will be wholly alien to Rule 14 (2). For the foregoing discussion we set aside the impugned order of the Division Bench of the High Court

Chapter 22

Major R.S. Budhwar v. Union Of India 1996

Major R.S. Budhwar v. Union Of India & Ors on 8 May, 1996 JUDGMENT: WITH Equivalent citations: 1996 AIR CRIMINAL APPEAL No. 625 of 2000, JT 1996 (5) 39 1996. Author: M Mukherjee. (Arising out of SLP (Crl.) No. Bench: M M.K. PETITIONER: MAJOR R.S. BUDHWAR v. RESPONDENT: UNION OF INDIA & ORS. DATE 08/05/1996 BENCH: BENCH: MUKHERJEE M.K. (J) ANAND, A.S. (J) CITATION: 1996 AIR 2000 JT 1996 (5) 39 1996 SCALE (4)269 ACT: HEADNOTE: OF 2126 of (1994) Mahavir Singh V. Union of India WITH CRIMINAL APPEAL NO. 626 OF 1996 JUDGMENT: (Arising out of SLP (Crl.) No. 2138 of 1994) Inder Pal Singh V. Union of India JUDGMENT M.K. MUKHERJEE. J. The above appeal and the two Special Leave Petitions were directed to be heard together as they relate to one and the same incident but having to the facts regard to the facts

MUKHERJEE M.K. (J)

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that over that incident two separate trials were held by General Court Martial (GCM for short), assailing their verdicts two independent writ petitions were led and the Delhi High Court dismissed them by two separate judgments, which are under challenge herein, we have heard them one after the other and proceed to dispose of them accordingly. CRIMINAL APPEAL NO. 1194 OF 1195

the ndings and sentences recorded against him be not conrmed. The GOC-in-C Eastern Command however rejected that petition and conrmed the ndings and sentences of the GCM. He then led another petition in accordance with Section 164 (2) of the Act which was rejected by the Central Government. The appellant then approached the Delhi High Court with a petition under ArtiArmy Act COMMITTING A cle 226 of the Constitution of India CIVIL OFFENCE, THAT IS TO which was also dismissed. Hence this SAY Section 69 ABETMENT OF appeal. AN OFFENCE SPECIFIED IN Mr. Lalit, the learned counsel apSECTION 302 OF INDIAN PE- pearing for the appellant, rst conNAL CODE, IN CONSEQUENCE tended that there being not an iota OF WHICH ABETMENT SUCH of evidence in the proceedings of the OFFENCE WITH COMMITTED, G.C.M.to indicate that L/NK Inder CONTRARY TO SECTION 109 Pal Singh and Sep. Mahavir Singh READ WITH SECTION 34 OF IN- (the petitioners in the two special DIAN PENAL CODE. leave petitions) committed the murin that they together, at Field, ders of the two ocers mentioned in on or before 14 June, 1987, abetted the charge the High Court ought to No. 3173368H Sep (L/nk) Inder Pal have held that the ndings of the Singh and No. 3174523 L. Sep Ma- G.C.M. as recorded against the aphavir Singh, both of 8 JAT to com- pellant were perverse. While on this mit murders of IC 14807N Colonel SS point, Mr. Lalit however fairly conSahota and IC 28739H Major Jaspal ceded that having regard to the limSingh of the same unit, which was ited scope of enquiry the High Court committed in consequence of such exercises while sitting in its extraabetment by the said Sep (L/NK) ordinary writ jurisdiction it was difInder Pal Singh and Sep. Mahavir cult for him to assail the nding rcorded by the G.C.M. that the apSingh. pellant had instigated the above two The GCM found the appellant persons to commit the murders on and one of the other two (since the ground that it was based on no dead) guilty of the above charge and evidence, but he strenuously urged awarded them punishment of impristhat mere proof of the said fact could onment for life and cashiering. Agnot in any way saddle the appellant grieved thereby the appellant prewith the oence of abetment of the sented a petition under Section 164 commission of the murders, in ab(1) of the Army Act, 1950 (Act sence of any evidence whatsoever to for short) wherein he prayed that

289 prove that they actually committed the murders, and, that too on being instigated by the appellant. The other point that was raised by Mr. Lalit was that even if it was assumed that there was some evidence to connect the appellant with the oence alleged against him as furnished by Inder Pal Singh and Mahabir Singh, even then the GCM, which functions as a judicial Tribunal, ought not to have relied upon ths same, in absence of any independent corroboration thereof, as such evidence was adduced by the two assailants mentioned in the charge, who were undoubtedly accomnplices. Mr. Goswami, learned cuunsel appearing for the respondents on the other hand contended that ib could not be said that there was no evidence to cnnnect the appellant with the charge leveiled against him and, therefore, this Court would nut be justied in interfering with the ndings of the G.C.H.even if it, on its, own appraisal, found the evidence to be insucient or unreliable. In responding to the other contention of Mr. Lalit, Mr. Goswami rst drew our attention to Section 133 ot the Act which makes, subject to its provisions, Evidence Act, 1872 applicable to a]l proceedings before a Court Martial and contended that in view of section 133 thereof (Evidence Act), a conviction based on the uncorrcborated testimony of an accomplice could not be held to be illegai. However, Mr. Goswami submitted that in the instant case there was ampie material to corroborate the evidence of the accomplices. In the context of the rival stands of the parties the crucial point that falls for our consideratinn is whether there is any evidence to prove that Inder Pal Singh and Mahavir Singh committed the murders of Col. S.S. Sahola, the Commanding Ocer and major Jaspal Singh, Second-in-Command of 8, JAT Unit (hereinafter referred to as CO and 2IC respectively) on June 16, 1987 as alleged by the prosecution. If this question is to be answered in the negative, then the fact that there is evidence to prove that the appellant had instigated them to commit the murder - which is conceded by Mr. Lalit also - would be redundant; and, resultantly, the impugned order of the G.C.M. would have to be quashed. To nd an answer to the above question we have carefully gone through the evidence adduced during the G.C.M. proceedings. On perusal of the evidence of Mahavir Singh (PW 10 ) and Inder Pal Singh (PW 16), the two accomplices, who, admittedly were the most important witnesses for the prosecution, we nd that they rst spoke of the orders they had earlier received from the appellant and others to commit the two murders. In narrating the incident of the fateful day, both of them stated that at or about 12 noon they went towards the oce of CO and 2IC with arms and ammunitions. After moving some distance together, Mahavir Singh went towards the oce of CO and Inder Pal Singh towards that of 2IC. According to Mahavir Singh, enroute he met L/NK Ranbir Singh (PW 21) who asked him why he had come there. Mahavir Singh then red one round towards him, who im-

290

Major R.S. Budhwar v. Union Of India 1996 during crial PW 10 testied: It is correct that I alongwith L/NK Inder Pal Singh had killed the CO and 2IC on the orders of accused No. 1 (the appellant). He further stated: It is correct that accused No.1 appellant) had asked me a question as to with what aim I was trying to implicate him in this case and I had replied that I was not trying to implicate him in any case and he had given a task which I had aacomplished.

mediately caught hold of the muzzle of his (Mahavirs) rie. Mahavir Singh next stated what at that point of time, rapid re came from the drill shed side towards the COs jonga which was standing there. Simultaneously, he (Mahavir Singh) red one round which injured Ranbirs hand and he fell down. The version of Inder Pal Singh (PW 16) as regards the ring is that when he reached the oce of the 21C he found that he was not there. He then went towards the oce of the Adjutant. On the way he heard sounds of ring. When he reached the oce of Adjutant he could not see clearly as to who were inside as the room was dark and windows were covered with curtains. Through the window he saw a Captain sitting inside and talking to some one, who might be 2IC. He then red several rounds in the air. In the meantime Mahavir Singh came there and told him to run away. Then both of them ran towards the jungle.

Then again when asked about what he knew about the loss of grenades of the Unit he said the grenades were stolen to kill CO and 2IC. He also stated that he has already been sentenced to be hanged for committing the murders of CO and 2IC for obeying the orders of Major Sahib (the appellant). Again in cross-examination he testied that his job was to eliminate CO and 2IC. The other piece of his evidence, which clearly indicates that he had Drawing our attention to the committed the murders on the instiabove statements of the two accom- gation of the appellant, reads as unplices, Mr. Lalit argued that as nei- der: ther of them admitted to have comOn 18 June 87, after 1600 hrs. mitted the murders it must be said I and L/NK Inder Pal surrendered that the nding of the G.C.M. That to Hav Nav Rattan of my unit near the appellant was guilty of the charge Kambang Bridge. We have also surlevelled against him was perverse rendered our arms to him. We were being based on no evidence. We made to sit in a 1 Ton vehicle of our are unable to accept the contention unit. After some time one capt. of of Mr. Lalit for, later on in his ev16 Madras alongwith a guard of 3-4 idence P.W.10 fully supported the OR came to the 1 Ton vehicle. 2 or charge levelled against the appellant 3 OR sat with us in the vehicle. The - though PW 16 did not - and there guard Commander remained outside is other circumstantial evidence on the vehicle. The rst ocer of my record to substantiate the prosecuunit to come the site of surrender tion case. On being examined further was Maj Lamba. He had come in

291 a RCL and it was parked ahead of 1 Ton vehicle. He wished him Ram Ram while his vehicle crossed 1 Ton vehicle. He replied by saluting but did not speak anything. After about half an hour of our surrender, accused No.1 came to us to the 1 Ton vehicle. He was looking as if he had come running and he was perspiring. When he came close to us, we wished him Ram Ram. He came further close to us and patted me on my back and said Shabash Kam Kar Diya, Chettri Sahib or Doctor Sahib Ko Kiyon Rager Diya meaning thereby,well done, the job has been done, why Chettri Sahib and Doctor Sahib killed. In view of the above testimony of P.W.10 it cannot at all be said that he did not support the charge levelled against the appellant. It is of course true that PW 10 is an accomplice but from the proceedings of the trial we nd that the Judge Advocate in his closing address properly explained to the GCM the value of the evidence of an accomplice with reference to Section 133 and Section 114 (Illustration b) of the Evidence Act. If inspite of such explanation the GCM found the appellant guilty it could not be said that its nding was perverse. This apart, the following circumstances proved through other witnesses amply corroborate the evidence of P.W. 10: i) on 16 June, 1987 both Inder Pal Singh and Mahavir Singh were found going towards the main oce building with ries and some rounds of ammunitions. While Mahavir Singh went towards the oce of the CO, Inder Pal Singh went towards the oce of the 2IC: ii) Near COs oce when NK Ranbir (PW 21) caught hold of the muzzle of the rie of Mahavir Singh he red or round as a result of which Ranbir sustained an injury on his hand and fell down unconscious. After regaining his senses when he went to the oce of the CO he found him lying on the ground near his revolving chair gasping for breeth; iii) After the ring incident Mahavir Singh and Inder Pal Singh together ran away towards the jungle along with their arms and ammunition; iv) Both of them surrendered on June 18, 1987 with their ries and ammunitions which were seized and sent to Forensic Science Laboratory, Calcutta for examination; v) On examination it was found that ten cartridges cases were red through one of those ries bearing Regd. No 9744 which was issued to Inder Pal Singh and two cases were red through the other rie, bearing. Regd No.7343 which was issued to Mahavir Singh, in the morning of June 16, 1987: vi) While sitting in the oce of Adjutant, Major Chandal (CW 1) saw through the window Ranbir Singh holding the muzzle of a rie. At that moment he heard another bullet being red from the side of his back. He than ducked down on the table with face downward and saw, through the window, Inder Pal Singh ring about 10 to 15 rounds. After the ring had stopped when he came out of the oce of the CO he found him lying in a reclining position against the wall and he was

292

Major R.S. Budhwar v. Union Of India 1996 302 Field Ambulance. The two appellants were also attached to the above unit. By its order dated December 10, 1988 the GCM held them guilty of the above oences and sentenced each of them to death. Aggrieved thereby they presented petitions under Section 164 (1) of the Army Act (Act for short) wherein they prayed that the ndings and sentence of the GCM be not conrmed. Those petitions were rejected and the ndings and sentence recorded against thems were conrmed. The appellants thereafter led another petition under Section 164 (2) of the Act which was also rejected. They then moved the Delhi High Court with a petition under Article 226 of the constitution of India wherein they conned their challenge to the sentence imposed upon them on the ground that the GCM did not take into consideration the mitigating circumstances while awarding the punishment. In resisting the petition, the respondents contended that having regard to the fact that the appellants committed the murders in a planned manner they deserved the sentence of death. The High court rejected the contention of the appellants and for that matter their writ petition with the following observations: The question of sentence has to be decided by taking into account the aggravating circumstances as well as mitigating circumstances and then drawing a balance. The manner in which the crime was commited, the weapons used and brutality or lack of it are some of these relevant consid-

badly injured and gasping for breath; and vii) Dr. Senewal, (PW 15) who held post mortem examination on the dead bodies of CO and 2IC found injuries on their persons which, in his opinion, were caused by bullets and resulted in their deaths. When the above circumstantial evidene is considered along with the evidence of P.W.10 the conclusion is irresistable that it is not a case of no evidence but one of sucient evidence . The ndings of the GCM not having been assailed in any other court, the conviction and sentence of the appellant is well merited. We therefore hold that there is no merit in this appeal. It is accordingly dismissed. CRIMINAL APPEAL NO .......OF 1996 OUT OF SLP (CRL .NO.2126 OF 1994) AND CRIMINAL APPEAL NO.....OF 1994 (ARISING OUT OF S.L.P.(CRL.) NO.2158 OF 1994) Leave granted in both the petitions, limited to the question of sentence. Sep Mahavir Singh and L/NK Inder Pal Singh the appellants in these two appeals, were tried by the General Court Martial (GCM) for committing the murders of four Army Ofcers, namely, Col.S.S. Sahota, Major Jaspal Singh, Captain B.K. Chottri and Captain A. Srivastava on June 16, 1987. Of them Col. Sahota was the Commanding Ocer, Major Jaspal Singh was the Second-inCommand and Captain Chottri was an ocer attached to 8 JAT Unit while Captain Srivastava belonged to

293 erations to be borne in mind. Due regard is to be given both to the crime and the criminal. This was a case of killing of a Commanding Ocer, an Ocer Second in Command and two other ocers. The Commanding Ocer in an Army Regiment is like a father of his subordinates. The contention that the petitioners had good service record and had no advantage in killing these ocers and they had killed these ocers on instigation of major Budhwar cannot be accepted in the present petition as without going into these aspects but assuming two views on question of sentence were possible, it is not for this court to substitute its view for that of the authority under the Act. It cannot be held that the view of authorities in awarding death penalty was in manner perverse. We may notice that according to respondents life sentence was imposed on Major Budhwar as he was charged for abetment whereas petitioners were actual perpetrators of the crime. Hence these two appeals. Drawing inspiration from the judgment of this Court in Triveniben & ors. v. State of Gujarat & Ors. 1989 (1) SCR 509, wherein this Court has held that undue and prolonged delays occurring at the instance of the executive in dealing with the petitions of convicts led in exercise of their legitimate right is a material consideration for commuting the death penalty, the learned counsel for the appellants submitted that the appellants were entitled to the commutation of their sentence as it took the respondent more than three and half years to dispose of the petitions presented by the appellants under sub-sections (1) and (2) of section 164 of the Act. On going through the record we nd much substance in the above grievance of the appellants. Following the death sentence pronounced by the GCM on December 10, 1988 the appellants led their application under sub-section (i) of Section 164 on December 31, 1988 which was disposed of on February 13, 1991, that is, after a period of more than two years and one month. Thereafter the appellants moved their petition under subsection (2) of Section 164 on March 7, 1991 and this petition was disposed of after a delay of more than one year and six months. The total delay therefore, comes to more than three years and seven months; and needless to say during this period the appellants were being haunted by the shadow of death over their heads. No explanation is forthcoming for these unduly long delays and therefore, the appellants can legitimately claim consideration of the above factor in their favour, but, then, it has also been observed in Trivenibens case (supra), relying upon the following passage from the earlier judgment of this Court in Sher Singh v. State of Punjab (1983) 2 SCC 344: The nature of the oence, the upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which

294

Major R.S. Budhwar v. Union Of India 1996 of circumstances as they happened to be present at the time of the incident. Another mitigating factor which in our opinion calls for commutation of the sentence is that Major Budhwar who alongwith another ocer (since dead) masterminded the two murders were awarded life imprisonment whereas the appellants who carried out their orders have been sentenced to death. In dealing with this aspect of the matter the High Court however observed, as noticed earlier, that the appellants committed the oences while the ocers were only abettors. In our considered view in a case of the present nature which relates to a disciplined force as the Army, the oence committed by the ocers who conceived the plan, was more heinous that of the appellants who executed the plan as per their orders and directions. It is of course true that those orders being not lawful the appellants, even as disciplined soldiers, were not bound to comply with the same nor their carrying out such order minimised the offences but certainly this is a factor which cannot be ignored while deciding the question of sentence. Another factor which persuades us to commute the sentence is the post murder repentance of the appellants who not only surrendered before the authorities within two days but also spoke out the truth in their confessional statements. In fact, but for their confessional statements the Ocers, who were the masterminimize, could not have been brought to book. None of the mitigating circumstances, as noticed by us above, were taken into consideration by the

must enter into the verdict as to whether the sentence should be vacated for the reseon that its execution is delayed. that such consideration cannot be divorced from the dastardly and diabolic circumstance of the crime itself. Having given our anxious consideration to all aspects of this case in the light of the above principles we feel that the appellants do not deserve the extreme penalty of death, notwithstanding the fact that two of the murders, namely, that of the Commanding Ocer and Second-inCommand were diabolically planned and committed in cold blood. From the record, particularly the confessions made by the two appellants which formed the principal basis for their conviction we nd that the appellants did not commit the above two murders on their own volition prompted by any motive or greed much less, evincing total depravity and meanness. Indeed, it was the case of the respondents themselves at the GCM - which has been accepted by us also in the earlier appeal, that Major R.S. Budhwar alongwith other Ocers of the Unit of the appellants instigated and compelled them to commit the above two murders by exploiting their religious feelings. The record further indicates that initially the appellants declined to take any step towards the commission of the oences but ultimately they succumbed to the threat, command and inuence of their superiors. So far as the murders of the other two ocers are concerned we nd that they became the unfortunate victims

295 High Court. It was obliged to consider both the aggravating and the mitigating circumstances and therefore by ignoring consideration of the mitigating circumstances, the High Court apparently fell in error. For the foregoning discussion we allow those appeals and commute the sentence of death imposed upon each of the appellants to imprisonment for life, for the conviction recorded against them.

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Major R.S. Budhwar v. Union Of India 1996

Chapter 23

Anuj Kumar Dey & Anr vs Union Of India 1996

Anuj Kumar Dey & Anr vs Union Of India & Ors on 28 November, 1996 Author: Sen Bench: J Verma, S C Sen PETITIONER: ANUJ KUMAR DEY & ANR. v. RESPONDENT: UNION OF INDIA & ORS. DATE 28/11/1996 BENCH: J.S. VERMA, SUHAS C. SEN ACT: HEADNOTE: JUDGMENT: (With Writ Petition (C) No. 831 of 1993 and Writ Petition (C) Nos. 293, 752 & 601 of 1994) JUDGMENT SEN, J. Anuj Kumar Dey, the appellant herein, joined Indian Navy as Articer Apprentice on 12th August, 1971. OF JUDGMENT: On 17th August, 1971 the statutory oath of allegiance was administered to him. He claims that his service in the Indian Navy must be calculated from that date, that is, 17th August, 1971. ON 11th August, 1975 the appellants training as Articer Apprentice was over. Immediately thereafter, he was advanced to Electrical Articer Vth Class on 12th August, 1975. Various promotions were given to the appellant thereafter from time to time. On 31st January, 1988 the appellant was released from the Nay. The dispute in this case is about the entitlement of the appellant to get pensionary benets for his service under the Navy. According to the appellant, he has served the Navy for more than fteen years which must be counted from 17th August, 1971 when he was administrated oath of allegiance. According to the respondents, the four years spent by the appellant as Articer Apprentice was training period only and, therefore, the service of the appellant commenced only on 12th

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Anuj Kumar Dey & Anr vs Union Of India 1996 ordinate ocers shall be appointed by commission granted by the President. (3) Subordinate ocers shall be appointed in such manner and shall hold such rank as may be prescribed. 11. (1) Save as otherwise provided in this Act, the terms and conditions of service of sailors, the person authorised to enrol for service as sailors and the manner and procedure of such enrolment shall be such as may be prescribed. (2) No person shall be enroled as a sailor in the India Navy for a period exceeding twenty years in the rst instance; 12. Where a person after his enrolment has for a period of three months from the date of such enrolment been in receipt of pay as a sailor, he shall be deemed to have been duly enrolled and shall not thereafter be entitled to claim his discharge on the ground of any irregularity or illegality in his engagement or any other ground whatsoever; and if within the said three months such person claims his discharge, no such irregularity or illegality or other ground shall, until such person is discharged in pursuance of his claim eect his position as a sailor in the naval service or invalidate any proceedings, act or thing taken or done prior to his discharge. 13. Every ocer and every sailor shall, as soon as may be, after appointment or enrolment make and subscribe before the commanding ofcer of the ship to which he belongs, or the prescribed ocer on oath or af-

August, 1975 when he was appointed Electrical Articer Vth Class, after completion of his training as Articer Apprentice on 11th August, 1975. The question is whether this period of four years, 17.8.71 to 11.8.75 during which the appellant was undergoing training as Articer Apprentice under the Navy, should be counted in the period of service rendered by the appellant. Before going into the merits of the case, it will be necessary to refer to the relevant provisions of the Navy Act, 1957 and also to some of the Regulations framed under the said Act:THE NAVY ACT, 1957 CHAPTER - I PRELIMINARY 3. In this Act, unless the context otherwise requires:(16) ocer means a commissioned ocer and includes a subordinate ocer but does not include a petty ocer; (17) petty ocer means a sailor rated as such and includes a chief petty ocer and a master chief petty ocer (20) sailor means a person in the naval service other than an ocer; CHAPTER - IV COMMISSIONS, APPOINTMENTS AND ENROLLMENTS 9. (1) No person who is not a citizen of India shall be eligible for appointment or enrolment in the Indian Navy or the Indian Naval Reserve Forces except with the consent of the Central Government: 10. (1) Ocers other than sub-

299 rmation in the following form that be furnished by the prescribed ois to say:cer with a certicate in the language I........... do swear in the name which is the mother tongue of such of God/solemnly arm that I will sailor and also in the English lanbear true faith and allegiance to the guage sating forthConstitution of India as by law established and that I will, as in duty bound, honestly and faithfully serve in the naval service and go wherever ordered by sea, land or air, and that I will observed and obey all commands of the President and the commands of any superior ocer set over me, even to the paril of my life. 14. Liability for service of ocers and sailors-(1) Subject to the provision of sub-section (4), ocers and sailors shall be liable to serve in the Indian Navy or the Indian Naval Reserve Forces, as the case may be, until they are duly discharged, dismissed, dismissed with disgrace, retired, permitted to resign, or released. 15. Tenure of service of ocers and sailors.-(1) Every ocer and sailor shall hold oce during the pleasure of the President. 16. Discharge on expiry of engagement. Subject to the provisions of Section 18, a sailor shall be entitled to be discharged at the expiration of the term of service for which he is engaged unless17. (1) A sailor entitled to he discharged under section 16 shall be discharged with all convenient speed and in any case within one month of his becoming so entitled: (4) Every sailor who is dismissed, discharged, retired, permitted to resign or released from service shall (a) the authority terminating his service; (b) the cause for such termination; and (c) the full period of his service in the Indian Navy and the Indian Naval Reserve Forces. Apart from the aforesaid provisions of the Navy Act, by Section 184 the Central Government has been empowered to make regulations in respect of, inter alia, the terms and conditions of service, the pay, the pensions, allowances and other benets of persons in the naval service, including special provision in this behalf during active service. In exercise of this power, the Central Government has framed the regulations called the Navy (Pension) Regulations, 1964, Service in the Indian Navy. Chapter III of the Regulations deals with Sailors. In this Chapter, Regulation 69(2) deals with Service Pension and Gratuity of the Sailors. Regulation 78 lays down, Unless otherwise provided, the minimum service which qualies for service pension is fteen years. Regulation 79 is important for the purpose of this case and lays down. All service from the date of enrolment or advancement to the rank of ordinary sea-man or equivalent to the date of discharge shall qualify for pension or gratuity. Regulation 261 deals with

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recruitment and provides:-

For 1st Good Conduct Badge ... 4 years. 261. RECRUITMENT - (1) The Chief of Naval Sta may recruit For 2nd Good Conduct Badge ... sailors required for the service. 8 years. (2) recruitment of sailors shall be made through boy entry, articer apprentice entry and direct entry as necessary. The recruitment shall be carried out by the Recruitment Organisation established for the purpose and by any other authority as may be decided upon by the Chief of the Naval Sta from time to time. Persons authorised to enrol sailors, the manner, procedure and terms and conditions of enrolment shall be as laid down in the appropriate Regulations. for 3rd Good Conduct Badge ... 12 years. The rst question in this case is whether the appellant can be regarded as a Sailor. The argument on behalf of the respondents has been that the appellant was undergoing training as an Articer Apprentice. He could not be treated as a Sailor during this period of training. It was only when he was advanced to Electrical Articer Vth Class after completion of his training that he became a Sailor.

Regulations 290 and 291 are also Various provisions of this Act and important for the purpose of this case the regulations set out hereinabove, and are as under:do not support this contention. The 290. AWARD OF GOOD CON- denition of sailor, as given in Section 3(20), is of wide amplitude and DUCT BADGE GOOD CONDUCT BADGE means person in the naval service shall not be awarded or restored as other than an ocer. The provia matter of course merely because sions of Sections 9, 10 and 11 of the a man has avoided serious punish- Act go to show that an ocer, who ments. If the Captain is satised that is not a subordinate ocer, is apa man is fully qualied in accordance pointed by commission granted by with regulations 291 to 293 and sub- the President. Subordinate ocers regulation (1) of regulation 294 and may be appointed in the prescribed is deserving of the award a badge manner, but the sailors are enrolled shall be conferred, when due, under in the Navy. The Chapter Heading provisions of this regulation. The is Commissions. Appointments and maximum number of bedges that a Enrollments. Section 13 lays down sailor may earn during his service that every ocer and every sailor shall, as soon as may be possible afshall be three. ter appointment or enrolment, make 291. SERVICE QUALIFICAand subscribe an oath on armation TION - (1) Before a sailor can be in the prescribed form. considered for the award of a Good These statutory provisions go to Conduct Badge, he must have comshow that a person can join Indian pleted the following periods:

301 Navy as an ocer or a sailor. An ocer and a petty ocer have been dened in subsections (16) and (17) of Section 3 and any person who is other than an ocer and is in naval service has been dened as a sailor. The appellant was not an ocer. He had joined Indian Navy and immediately after his enrolment he was made to take oath which every ofcer and every sailor under Section 13 is bound to take. Moreover, Regulation 261 clearly lays down that recruitment of sailors shall be made through boy entry, articer apprentice entry and direct entry as ocer. Therefore, the fact that the appellant was enrolled as an Articer Apprentice, does not in any way go to show that he was not a sailor and was not serving the Navy as a sailor. Section 12 lays down that where a person after his enrolment has for a period of three months from the date of such enrolment been in receipt of pay as Sailor, he shall be deemed to have been duly enrolled. Now, there is no dispute that the appellant had received pay regularly after his enrolment. It has been contended on behalf of the respondents that the appellant was allowed an allowance during the term of the training. The case of the appellant is that he used to get a xed pay during the period of the training. The fact that he used to get a xed pay does not go to show that he did not receive pay regularly after his enrolment. The position becomes even clearer if a reference is made to Section 13 which provides that every ocer and every Sailor shall as soon as may be after the appointment or enrolment make and subscribe an oath or armation in the prescribed form. This is something which only an ocer or a Sailor is required to do. There is no dispute that the appellant was administered oath. This could only be done under the Act if he was either an ocer or a Sailor. If the contention of the respondents that the appellant was not even a Sailor during the period of training, then it has not been explained why he was administered oath. The next objection was that even if the appellant could be treated as a sailor, he could not be said to have been in the service of the Navy during the period of training. This argument is also unacceptable in the facts of the case and in view of the provisions of the Act and the Regulations. In the prescribed form of oath that was administered to the appellant, he had to swear .......I will, as in duty bound, honestly and faithfully serve in the naval service ........... It is clear that the appellant was enrolled as a Sailor, took oath as a Sailor and drew salary as a Sailor and was in the service of the Navy as a Sailor during the period of undergoing training as Articer Apprentice. The qualifying period for earning pension is service of 15 years under the Navy. having regard to the facts of the case and the documents annexed to the appeal, there is little doubt that the training period as Articer Apprentice will have to be included in the computation of the qualifying period of service. Regulation 79 lays down that all service from the date of enrolment or advancement to the rank

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Anuj Kumar Dey & Anr vs Union Of India 1996 There is another document described as Certicate of the Service where Period of Engagement has been shown as twelve years (from 16.8.75 to 15.8.1985 and from 16.8.85 to 31.1.1988). On behalf of the respondents, strong reliance has been placed on this document. However, this document does not say that the appellant was in service for twelve years only. This is an entry in a column headed Period of engagement. In fact, in the very next page of that document, details of the service of the appellant and Substantive Rank held by him have given. There, it has been shown that the appellant was serving in the ship VALSURA in the Substantive Rank Art. (App) from 12th August, 1971 to 27th November, 1973. It has also been recorded in that document that the oath of allegiance was taken on 18th August, 1971. In the column headed Good Conduct Badges, it has been shown that the appellant was awarded Good Conduct Badges in August, 1975, August, 1979 and August, 1983. That document was given to show Character and Eciency on 31st December yearly, on nal discharge and other occasions prescribed by regulation. It appears that in the yearly column on and from 31st December, 1971 to 31st December, 1988 (the date of discharge), every year the appellants character has been certied as V.G. (Very Good). Under Regulation 291, these badges can be awarded only after completion of four years (rst badge). 8 years (second badge) and 12 years (third badge) of service. It has been laid down under Regulation

of ordinary sea-man or equivalent to the date of discharge shall qualify for pension or gratuity. Therefore, the date of advancement is not the only starting point for computation of the qualifying period of service. In the case of the appellant the date of enrolment should be the material date. He was administered oath as a Sailor even before the date of his advancement to the rank of Electrical Articer Vth Class. In fact, the Discharge Certicate issued by the Navy to the appellant is to the following eect ad puts the matter beyond any doubt:- This is to certify that ANUJ KUMAR DEY, CHIEF ELECTRICAL ARTIFICER (AIR), NO. 052264-H has served in the Indian Navy from 12 AUGUST 1971 to 31ST JANUARY, 1988 as per details overleaf. This is a statutory certicate which has to be given under subsection (4) of Section 17 of the Navy Act. The discharge Certicate must state the full period of service in the Indian Navy. According to the calculation made by the Navy itself, this period of service is more than the qualifying period of 15 years. Not only that. In the details that had been given along with the Discharge Certicate, it has been mentioned that Joined on 12th August, 1971. released on 31st January, 1988. The Date of Attestation in the Indian Navy is given as 17th August, 1971 (Oath of allegiance taken). This is a certicate given by the Indian Navy in accordance with requirement of Section 17.

303 290 that the maximum number of was drawn to a judgment of Andhra badges that a sailor may earn during Pradesh High Court in the case of his service shall be three. H.S. Sarkar v. Union of India & Ors. All these facts and the various 1994 (2) An W.R. 221, where it was provisions of the Act and the Regu- held that it does not stand to reason lations leave no room for doubt that that when the training period of four the appellant even during the period years is reckoned for the purpose of he was working as Articer Appren- computation of 15 years for retiring tice was in the service of the Navy, a person., the same is not reckoned was given Good Conduct Badges for for the purpose of pension........ Paythis service and four years service ment of only a consolidated pay durwas counted from the year 1971. ing the training period and not regThe Discharge Certicate which is a ular scale of pay is immaterial in so statutory document clearly records far as the computation of the period that he has served in the Indian is concerned. Navy from 12th August, 1971 to 31st January, 1988. The respondents after granting all these certicates and badges, cannot be heard to say that the appellant had not put in the qualifying period of service of fteen years and, therefore, was not entitled to get pension. Our attention We are of the view that the Division Bench of the High Court was in error in holding that the period of four years when the appellant was employed Articer Apprentice could not be counted for computation of the qualifying period of pension.

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Chapter 24

Union Of India And Others v. Major A. Hussain 1997)

Union Of India And Others v. Major A. Hussain, IC-14827 on 8 December, 1997 Author: D Wadhwa. Bench: S V Manohar, D Wadhwa missing their appeal against judgment date April 25, 1991 of the learned single Judge of that High Court whereby the learned single Judge allowed writ petition led PETITIONER: by the respondent and quashed UNION OF INDIA AND OTHthe court martial proceedings held ERS against him including the conrmav. tion of sentence passed upon him by the court martial. RESPONDENT: A General Court Marital (GCM) MAJOR A. HUSSAIN, IC-14827 DATE OF JUDGMENT: under the Army Act, 1950 (for short the Act) was convened to try the re08/12/1997 spondent holding the rank of Major BENCH: in the army on the following charge: SUJATA V. MANOHAR, D.P. Charge Sheet WADHWA The accused IC-14827F Major ACT: Arshad Hussain, 225 Ground Liaison HEADNOTE: Section Type C attached to AOC Centare, an ocer holding a perJUDGMENT: manent commission in the Regular JUDGMENT Army, is charged with :D.P. Wadhwa. J. Army Act AN ACT PREJUDIAppellants are aggrieved by the CIAL TO GOOD ORDER AND judgment dated February 21, 1994 of MILITARY Section 63 DISCIthe Division Bench of the High Court PLINE, of Judicature: Andhra Pradesh dis-

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Union Of India And Others v. Major A. Hussain 1997)

tence passed against the respondent at Field, between 17 Sep 84 was conrmed by the conrming auGround Liaison Section Type C, thority as required under the Act. lost by neglect twelve (12) pages of The respondent challenged his the Commanders Operational Brief conviction and sentence in a writ petaken on charge at Serial 115 on tition led by him in the High Court the Incoming TOP SECRET Regis- which, as noted above, allowed the ter of HW 150 Inf Bde which were en- same and quashed the court martial trusted to in for safe custody. Place: proceedings and conrmation of senSecunderabad Sd/tence against the respondent. The Date: 14 Aug 87 (Gautam Mitra ground which appealed to the High Court in setting aside the court mar) tial proceedings and subsequent conBrig rmation of sentence may be stated Commandant from the judgment of the of the single Judge which is as under: AOC Center The Petitioner has been denied To be tried by General Court a reasonable opportunity to defend Martial. Station: Madras - 9 Sd/Dated: 25 Aug 87 (Deepak Se- himself by not communicating the conclusion reached in Rule 22 Inhdev) Colonel quiry as contemplated by Army OrColonel A der 70/84. In the proceedings unFor General Ocer Commanding der Section 22 by not supplying the copies of statements in earlier court Andhra Tamil Nadu Karnataka of Inquiry: (i) during General Court and Kerala Area. Martial by not giving assistance of Section 63 of the Act reads as un- a defending ocer of his choice; (ii) der; 63. Any person subject to that not providing him load which was alAct who is guilty of any or omis- ready sanctioned to manage a new sion which, though not specied in counsel as the earlier counsel engaged this act, is prejudicial to good order by him had retired for no fault of and military discipline shall, on con- the petitioner; (iii) by not providviction by court martial, be liable to ing him the documents for which he suer imprisonment for a term which had made a request to the convenmay extend to seven years or such ing authority long before assembly of less punishment as is in this Act men- the Court Martial and for which his tioned. counsel had also made a request. After conclusion of the GCM proNow to understand if the High ceedings the respondent was held Court rightly exercised its power of guilty of the charge and was sen- judicial review of the court martenced to be dismissed from service tial proceedings, we may refer to a by order dated December 26, 1987 of few relevant facts and briey to the the General Court Martial. The sen- court martial proceedings. In the

in that he,

307 year 1984 respondent was serving as Ground liaison Ocer in a Brigade which was situated somewhere in Rajasthan in close proximity of international border with Pakistan. One Major P.C.Bakshi was also posted a Brigade Major in that Brigade. Brig. A.S. Bains was the commander of the Brigade. Major Bakshi was on annual leave with eect from 17.9.84 to 16.11.84 but before proceeding on leave he handed over certain classied documents to the respondent. Under provisions of Handing of Classied documents, the secret/top secret documents are to be in safe custody of an ocer not below the rank of Major. Accordingly, Brig. Bains ordered the respondent to take charge of classied documents from Major Bakshi which classied documents the respondent took over charge and duly signed the handing/taking over of these documents by signing a certicate to that eect. When Major Bakshi rejoined from his annual leave, he was required to take back the charge of classied documents from the respondent. When handing/taking over was commenced it was discovered that 12 pages of Top Secret documents were missing. A detailed search was carried out but the documents could not be traced and a report of this fact was communicated to all concerned in accordance with laid procedure. Major Bakshi declined to take charge and under orders of Brig. Bains the charge of the documents was ordered to be handed over to one Major D.K. Sharma, Deputy Assistant and Quarter Master General in the Brigade, which he did. it is stated that these Top Secret documents contained vital information adversely aecting the security of the country as these documents reected deployment of troops along the international border with Pakistan. In accordance with Army Rules 1954 framed under Section 191 of the Act sta court of inquiry was ordered under Rule 177 to investigate the loss, apportion blame and to suggest remedial measures to prevent such loss occurring in future but the court of injury, however, failed to give any denite ndings. Additional court of inquiry was ordered which examined additional witness. Appellants submitted that respondent was aorded full opportunity to be present throughout the proceedings in the court of inquiry in accordance with Army Rule 180 and for submitting anything in his defence. The Court of Inquiry apportioned blame on the respondent and it was recommended to initiate disciplinary proceedings against him. In accordance with Rule 22(1) of the Army Rules read with Army Order No. 70/84 respondent was brought before the Commanding Ofcer on April 8, 1985 and hearing of the charge was conducted in the presence of Major. D.K. Sharma. Summary of Evidence was recorded by Lt. Col. B. P. Singh from April 15, 1985 onwards in which the respondent participated. He cross-examined witnesses during the recording of Summary of Evidence. The respondent did not complain about the non-supply of the Court of Inquiry proceedings which were provided to him before the commence-

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ment of the General Court Martial High Court in that writ petition in accordance with Army Rule 184. in any detail, except to note that The Commanding Ocer of the Court Martial proceeding was interrespondent requested the trial of the rupted though ultimately the stay respondent by General Court Mar- granted by the High Court was vatial which was approved by the con- cated. The General Court Martial vening authority. The respondent assembled on September 14, 1987 was informed that he would be tried and on being arraigned the responby General Court Martial and was dent pleaded not guilty to the advised to submit a list of defence charge. Thereafter General Court witnesses as well as his choice for Martial was adjourned. a defending ocer. The respondent instead proceeded on leave for sixty days with eect from 10.6.85 to 8.8.85 which was granted. He did not rejoin his duty and instead got himself admitted in Military Hospital in Secunderabad which the appellants contend was to avoid the trial by General Court Martial. The appellants complain that the respondent adopted tactics to delay the commencement of the General Court Martial. He led a writ petition (No. 17828/86) in the Andhra Pradesh High Court at Hyderabad. The High Court by order dated August 3,1987 directed the appellants to post the respondent at Secunderabad. Respondent was thus attached to AOC Center at Secunderbad. He was supplied with copy of the chargesheet, copy of the Court of Inquiry proceeding and summary of evidence. He was also informed that General Court martial was likely to be convened by August 28, 1987. The respondent again moved the High Court by ling another writ petition (No. 12561/87) and obtained an order staying the General Court Martial proceeding. It is not necessary to refer to proceedings in the For the purpose of recording of evidence, General Court Martial resembled on November 30, 1987. In the absence of the Judge advocate, it was adjourned to the following day. On December 1, 1987, the record shows that defending ocer stated that full facilities in accordance with the Army Act, Army Rules and Regulations for the Army had been aorded to the respondent in the preparation of his defence and that the respondent had also been given full opportunity to consult and confer with him as also his defence counsel. The respondent had engaged the services of a civilian defence counsel the respondent was given an advance of Rs. 10,000/- on his request by the Army authorities. The Court also recorded submission of the defence counsel that all papers pertaining to preparation of defence of the respondent as requested earlier on August 24, 1987 and of which reminder was also sent on November 26, 1987 be made available to the defence counsel for proper conduct of the defence of the case. During the course of the proceedings, it was submitted by the defence counsel that a copy of the Summary of Evidence recorded

309 against the respondent, a copy of the court of enquiry proceedings and a copy of the additional court of enquiry proceedings had been received by the respondent in due time an that he had no grievance to that extent. He, however, submitted that there were some other documents which had not been made available to the respondent and as a result he was unable to conduct the defence case eectively. Proceedings of the court martial, however, show that whatever documents the respondent had asked for, he was given opportunity to inspect the same and in spite of the documents being made available to the respondent and his defence counsel, no attempt was made to inspect the same. We nd that most of the documents which the respondent had asked for were quite irrelevant to the proceedings. During the course of the proceedings of the Court martial, respondent had submitted certain applications which were duly considered by the General Court Martial and orders passed. We nd that full opportunity was granted to the respondent to conduct his case and proceedings could not be more fair. However, request of the defence counsel for a long adjournment wad declined. His submission that the court martial proceedings were being conducted with great haste had no basis. On one day only one witness was being examined and his cross-examination was being deferred at a request of the defence counsel himself. Court Martial was convinced for the trial of the respondent. It was not a regular court in the sense that where many cases are xed and adjournments granted. Under Army Rule 82, when a court is once assembled and the accused has been arraigned, the court shall continue the trial from day-to-day in accordance with Rule 81 unless it appears to the court that an adjournment was necessary for the ends of justice or that such continuance is impracticable. That the defence counsel had other case to attend to would hardly be a ground to adjourn the court martial. At one stage in midst of the case, the defence counsel withdrew. Grievance of the respondent that since further advance of Rs. 15,000/- was not given to him to engage another defence counsel, he could not eectively defend his case found favour with the High Court. The High Court, however, failed to take notice of the fact that the respondent was not entitled to any advance for the purpose of engaging the defence counsel and earlier as a special case an advance of Rs.10,000/- had been sanctioned. No Rule or Army Instruction has been shown under which the respondent was entitled to an advance. The respondent refused to cross-examine the witnesses on the specious ground that services of defence counsel were not made available to him due to paucity of funds. We noted that during the curse of enquiry proceedings, the respondent himself extensively cross-examined the witnesses. It is not therefore possible to accept the submission of the respondent that due to lack of funds he could not engage the services of a defence counsel particularly when during the course of court martial pro-

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ceedings, he knocked the doors of the legally qualied. prosecution examHigh Court thrice. ined Six witness including Major. On being asked by the convening P.C. Bakshi, Lieutenant colonel A.K. ocer respondent had given names of Sharma and Brigadier A.S. Bains three ocers one of whim he wanted and also brought on record various to be his defending ocer. A de- documents. The respondent was also fending ocer is to be provided to examined by the Court. In the abthe respondent in terms of the Army sence of any cross-examination by Rule 95. The services of none of the respondent, the court itself put the named ocers could be provided several questions to the witnesses in to the respondent due to exigency of the nature of cross-examination. services and particularly when the ofcers belonged to the Judge Advocate General branch and were not available. The names of the ocers which the respondent gave were (1) Maj. Gen. A.B. Gorthi, (2) Brig. Mohinder Krishan and (3) Lt. Col. R.P. Singh. It was submitted before us that though there is no bar in the Rules to provide the services of an ocer of the JAG Branch as a defending ocer but as a general policy it is not done. That would appear to be a sound policy considering the nature of functions and duties of an ocer of JAG Branch when appointed to a court martial as hereinafter mentioned. Moreover we nd that General Court martial was presided over by an ocer of the rank of Colonel. The respondent was asked to give the name of any other ocer to be appointed as his defending ocer but he declined to do so. The appellants provided the services of three defending ocers one after the other but the respondent declined to avail of their services and did not give them right of audience. All the three ocers were of the rank of lieutenant Colonel and two of them were experienced and were At this stage we may refer to the relevant provisions of law. Section 1 of Chapter V of the Army Rules deals with investigation of charges. Under Rule 22 every charge against a person subject to the Act other than an ocer shall be heard in the presence of the accused who shall have the full liberty to cross-examine any witness against him and to call any witnesses and make any statement in his defence. The commanding ocer shall dismiss the cargo brought before him if, in his opinion, the evidence does not show that an offence under the Act has been committed. However, if he is of the opinion that the charge ought to be proceeded with, he has four options, one of which is to adjourn the case for the purposes of having the evidence reduced to writing. Under Rule 23 procedure is prescribed for taking down the summary of evidence and statement taken down in writing shall either remand the accused for trial by court martial and in that case apply to the proper military authority to convene a court martial. Under Rule 25 where an ocer is charged with an oence under the Act, the investigation shall, if he requires it, be held,

311 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 Rules 22 and 23 in the case of other persons subject to the Act . Army Order No. 70/84 which deals with hearing of a charge by the commanding ocer may be set out as under : AO 70/84 Discipline: Hearing of a 3. It may be claried that the charge at this stage is a Tentative charge which may be modied after the hearing or during the procedure as described in Army Rule 22 (3) (c) or during examination after completion of the procedure under Army Rule 22(3) (c), depending on the evidence adduced. Further, as long as the Commanding Ocer Charge by the commanding O- hears sucient evidence in support of the charge cer. (s) to enable him to take ac1. Discipline process under the tion under sub-rules (2) and (3) of Military law commences with Army Rule 22 which lays down that ev- Army Rule 22, it is not necessary at ery charge against a person subject this stage to hear all possible prosto the Army Act, other than an ecution witnesses. As a matter of ocer, shall be heard in the pres- abundant caution it would be desirence of accused. The accused shall able to have one or two independent have full liberty to cross- examine witnesses during the hearing of the any witness against him. This is a charge(s). mandatory requirement and its nonobservance will vitiate any subsequent disciplinary proceedings. In the case of ocers, the rule becomes equally mandatory if the accused ofcer requires its observance under Army Rule 25. 2. It is, therefore, incumbent on all Commanding Ocers proceeding to deal with a disciplinary case to ensue that Hearing of Charge enjoined by Army Rule 22 is scrupulously held in each and every case where the accused is a person other than an ocer and also in case of an ocer, if he is so requires it. In case an accused ocer does not require Hearing of the Charge to be held, the Commanding Ocer may, at his discretion, proceed as described in Army Rule 22(2) or Army Rule 22(3). 4. After the procedure laid down in Army Rule 22 has been duly followed, other steps as provided in Army rules 23 to 25, shall be followed both in letter and spirit. It may be claried that the statutory requirements of Army Rules 22 to 25 cannot dispensed with simply because the case had earlier been investigated by a court of Inquiry where the accused person (s) might have been afforded full opportunity under Army Rule 180. Army Rules 180 and 184 which fall in chapter VI of Army Rules relating to Courts of Inquiry are as under : 180. Procedure when character of a person subject to the Act is involved.- Save in the case of a prisoner of war who is still absent, whenever any inquiry aects the character or military reputation of a person

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Union Of India And Others v. Major A. Hussain 1997) persons shall be entitled to a copy of the proceedings of a court o inquiry including any report made by the court on payment for the same of a sum not exceeding eight annas for every two hundred words:(a) any person subject to the Act, who is tried by a court martial in respect of any matter or thing which has been reported on by a court of inquiry, or (b) any person subject to the Act, whose character or military reputation is, in the opinion of the Chief of Army Sta aected by anything in the evidence before, or in the report of a court of inquiry, unless the Chief of the Army Sta sees reason to order otherwise. Under Rule 95 in any General Court Martial an accused person may be represented by any ocer subject to the Act who shall be called the defending ocer. Sub-rule (2) of Rule 95 Casts duty on the convening ocer to ascertain whether the accused person desires to have a defending ocer assigned to represent him and if he does so desire, the convening ocer shall use his best endeavors to ensure that the accused shall be so represented by a suitable ocer. This sub-rule (2) is as under:

subject to the Act, full opportunity must be aorded 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, aects his character or military reputation and producing any witnesses in defence of his character or military reputation. The presiding ocer of the Court shall take such steps as may be necessary to ensure that any such person so aected and not previously notied, receives notice of and fully understands his rights, under this rule 184. Right of certain persons to copies of statements an 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 contained 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 aected by the evidence before a court of Inquiry shall be entitled to copies of such statements and documents as have a bearing on his character or military reputation as aforesaid, unless the Chief of the (2) It shall be the duty of Army Sta for reasons recorded by the convening ocer to ascertain him writing, orders otherwise. whether an accused person desires Present Rule 184 was substituted to have a defending ocer assigned by SRO 44 dated January 24, 1985 to represent him at his trial and, if and prior to its substitution Rule 184 he does so desire, the convening ofreads as under: cer shall use his best endeavors to 184. Right of certain persons to ensure that the accused shall be so copies of proceedings.- The following represented by a suitable ocer. If

313 owning to military exigencies, or for any other reason, there shall in the opinion of the convening ocer be no such ocer available for the purpose, the convening ocer shall give a written notice to the presiding ofcer of the Court Martial, and such notice shall be attached to the proceedings. irregularity in the proceedings. Whether consulted or not, he shall inform the convening ocer and the court of any informality or defect in charge, or in the constitution of the Court, and shall give his advice on any matter before the Court.

(4) Any information or advice given to the Court, on any matter Under Rule 96 a civil coun- before the Court shall, if he or the sel can also be allowed in General Court desires it, be entered in the Court Martial to represent the ac- proceedings. cused subject to his being allowed (5) At the conclusion of the case, but he convening ocer which in the he shall sum up the evidence and give present case was done and the achis opinion upon the legal bearing of cused was represented by a counsel the case, before the Court proceeds of his choice. to deliberate upon its nding. Judge Advocate administers path (6) The Court, n following the to the members of t he court martial opinion of the judge advocate on a (Rule 47) and he himself be sworn as legal point, may record that it has per the forms prescribed (Rule 46). decided in consequence of that opinIt is he who sums up in an open court ion. the evidence and advise the court (7) The judge advocate has, upon the law relating to the case. If equally with the presiding ocer, the we refer to Rule 105 we ne the powers and duties of the judge advocate. duty of taking care that the accused does not suer any disadvantage in This rule is as under: consequence of his position as such, 105. Powers and duties of judge or if his ignorance or incapacity to exadvocate.- The powers and duties of amine or cross-examine witnesses or judge advocate are as follows:otherwise and may, for that purpose, (1) The prosecutor and the ac- with the permission of the Court, cused, respectively, are at all times Call witnesses and put questions to after the judge advocate is named to witnesses which appear to him necact on the Court, entitled to his opin- essary or desirable to elicit the truth. ion on any question of law relative to (8) In fullling his duties, he the charge or trial whether he is in or judge advocate must be careful to out of Court, subject, when he is in maintain and entirely impartial poCourt to the permission of the Court. sition. (2) At a Court Martial, he repreNo fault could be found with the sents the Judge Advocate General. recording of summary evidence. Re(3) He is responsible for inform- spondent has been unable to show if ing the Court of any informality or there was any non-compliance with

314

Union Of India And Others v. Major A. Hussain 1997)

the provisions of Rules 22, 23 and 24 and Army Order No. 70/84. We have been referred to two decisions of the Supreme Court in Lt. Col. Prithi Pal Singh Bedi v. Union of India and Ors. [(1982) 3 SCC 140] and Major G.S. Sodhi v. Union of India [ (1991) 2 SCC 382] laying the scope of the provisions regarding recording of summary of evidence. In G.S. Sodhis case this Court with reference to Rules 22 to 25 said that procedural defects, less those were vital and substantial, would not aect the trial. The Court, in the case before it, said that the accused had duly participated in the proceedings regarding recording of summary of evidence and that there was no agrant violation of any procedure or provision causing prejudice to the accused.

of Inquiry. This Court considered the judgment in Major G.S. Sodhis case and observed that supply of a copy of the report of enquiry to the accused was not necessary because proceedings of the court of enquiry were in the nature of preliminary enquiry and further that rules of natural justice were not applicable during the proceedings of the court of enquiry though adequate protection was given by Rule 180. This Court also said that under Rule 177, a court of inquiry can be set up to collect evidence and to report, if so required, with regard to any matter which may be referred to it. Rule 177, therefore, does not mandate that a court of inquiry must invariably be set up in each and every case prior to recording of summary of evidence or conProvisions of Rules 180 and 184 vening of a court martial. As noted above, when none of the had been complied. Rule 184 does to postulate that an accused is entitled three ocers who were all from JAG to a copy of the report of court of in- Branch could be made available to quiry. Proceedings before a court of the respondent as defending ocer inquiry are not adversarial proceed- he was asked to give the name of any ings and is also not a part of pre- ocer who could be deputed his detrial investigation. In Major General fending ocer. It is not the case of Inder Jit Kumar v. Union of India the respondent that the convening of& Ors. [(1997) 9 SCC 1] this Court cer did not use his best endeavor has held that the Court of Inquiry to ensure that the respondent was is in the nature of a fact-nding en- represented by a suitable defending quiry committee. The appellant in ocer. It was the respondent himthat case had contended that a copy self who declined to give any other of the report of the Court o Inquiry name. Nevertheless the convening ofwas not given to him and the had vi- cer did depute three ocers one aftiated the entire court martial. He ter the other to represent as defendhad relied upon Rule 184 in this con- ing ocer for the respondent. But nection. With reference to Rule 184, the respondent declined to avail their the Court said that there was no pro- services. vision for supplying the accused with We may also refer to Rule 149 a copy of the report of the Court which lays down that a Court Mar-

315 tial would not be held to be invalid even if there was an irregular procedure where no injustice was done. This Rule is as under: Validity of irregular procedure in certain cases - Whenever it appears that a court martial had jurisdiction to try any person and make a nding and that there is legal evidence or a plea of guilty to justify such nding, such nding and any sentence which the court martial had jurisdiction to ass thereon may be conrmed, and shall, if so conrmed and in the case of a summary court martial where conrmation is not necessary, be valid, notwithstanding any deviation from these rules or notwithstanding that the charge-sheet has not been signed by the commanding ocer or the convening ocer, provided that the charges have, in fact, before trial been approved by the commanding ocer and the convening ocer or notwithstanding any defect or objection, technical or other, unless it appears that any injustice has been done to the oender, and where any nding and sentence are otherwise valid they shall not be invalid by reason only of a failure to administer an path or armation to the interpreter or shorthand writer; but nothing in this rule shall relieve an ocer from any responsibility for any willful or negligent disregard of any of these rules. We nd the proceedings of the General Court Martial to be quite immaculate where trial was fair and every possible opportunity was afforded to the respondent to defend his case. Rather it would appear that the respondent made all eorts to delay the proceedings of the court martial. Thrice he sought the intervention of the High Court. Withdrawal of the defence counsel in the midst of the proceedings was perhaps also a part of plan to delay the proceedings and to make that a ground if the respondent was ultimately convicted and sentenced. Services of qualied defending ocer was made available to the respondent to defend his case, but he had rejected their services without valid reasons. He was repeatedly asked to give the names of the defending ocers of his choice but he declined to do so. The court martial had been conducted in accordance with the Act and Rules and it is dicult to nd any fault in the proceedings. The Division Bench said that the learned single Judge minutely examined the record of the court martial proceedings and after that came to the conclusion that the respondent was denied reasonable opportunity to defend himself. We think this was fundamental mistake committed by the High Court. It was not necessary for the High Court to minutely examining the record of the General Court martial as if it was sitting in appeal. We nd that on merit, the High Court has not said that there was no case against the respondent to hold him guilty of the oence charged. Though Court Martial proceedings are subject to judicial review buy the High Court under Article 226 of t he Constitution, the Court Martial is not subject to the superinten-

316

Union Of India And Others v. Major A. Hussain 1997) not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court martial unless it is shown that accused has been prejudiced or a mandatory provisions has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the Challenge to the validity of conviction and sentence of the accused when evidence is sucient, court martial has jurisdiction over the subject matter and has followed the prescribed procedure and is within its powers to award punishment. After ourselves examining the record of the court martial, we nd that the high Court completely misdirected itself in coming to the conclusion that the respondent was denied reasonable opportunity to defend himself. He was given copies of all the relevant papers and also given opportunity to inspect whatever record he wanted; allowed services of a civilian counsel; special advance was given to engage the services of civil counsel as requested by the respondent; there was no rule to give further advance to engage yet another civil counsel when rst one withdrew; respondent was not hampered by paucity of funds as made out by him; no fault could be found with the covening ocer if the respondent himself did not avail the services of a defending ocer when provided; cross-examination of important witnesses was deferred at the request of the respondent; and he had participated in the recording of Summary of Evidence without

dency of the High Court under Article 227 of the Constitution. If a court martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter and court must stay its hands. Proceedings of a court martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure where adjournment have become a matter of routine though that is also against the provisions of law. It has been rightly said that Court Martial remains to a signicant degree, a specialised part of overall mechanism by which the military discipline is preserved. it is for the especial need for the armed forces that a person subject to Army Act is tried by court martial for an act which is an oence under the Act. Court Martial discharges judicial function and to a great extent is a court where provisions of Evidence Act are applicable. A court martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the processions of law relating to Court Martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sucient evidence to sustain conviction, it is unnecessary to examine if pretrial investigation was adequate or

317 raising any objection. The General Court Martial took into consideration all the evidence and other materials produced before it; found the respondent guilty of the charge and sentenced him to be dismissed from service. Pre-conrmation petition submitted by the respondent was rejected by the Chief of the Army Sta and nding and sentence of the General Court Martial were conrmed by him. Thus, examining the case of the respondent from all angles which led the High court to set aside his conviction and sentence, we are satised that there was no irregularity or illegality and respondent was provided with reasonable opportunity to defend himself and the proceedings were fair. We, therefore, set aside the impugned judgment of the High Court and dismiss the writ petition led by the respondent. The appeal is allowed with costs.

318

Union Of India And Others v. Major A. Hussain 1997)

Chapter 25

The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997

The General Court Martial & Ors v. Col. Aniltej Singh Dhaliwal on 12 December, 1997 Author: Srinivasan Bench: M Punchhi, M Srinivasan PETITIONER: THE GENERAL COURT MARTIAL & ORS. v. RESPONDENT: COL. ANILTEJ SINGH DHALIWAL DATE 12/12/1997 BENCH: M.M. PUNCHHI, M. SRINIVASAN ACT: HEADNOTE: JUDGMENT: JUDGMENT Srinivasan, J. The respondent was an Army OfOF JUDGMENT: cer of the rank of Lt. Col. and was posted as Commanding Ocer under 116 Engineer Regiment, with head quarter, 17 Mtn. Arty. Brde. Nine charges were framed against him on 24.6.1995 and General Court Martial was held from 1.7.95 to 10.11.95. He was found guilty on charges 2,3,8 and 9. He led Crl. Writ Petition No.1 of 1995 in the High Court of Sikkim on 11.12.95. Thereafter on 2.3.1996 the order of the Court Martial was conrmed under Section 154 of the Army Act. By judgment dated 9.8.96 the High Court allowed the writ petition and quashed the order or the Court Martial. The appellant has preferred this appeal against the judgment of the High Court. 2. The main contention of the appellant is that the High Court has exceeded its power of judicial review under Article 226 and acted as a court of appeal by discussing and appreciating the evidence. Reliance is

320 General Court Martial v. Col. Aniltej Singh Dhaliwal 1997 The placed on Nagendra Nath Bora Versus The Commissioner of Hills Diven and Appeals 1958 SCR 1240 wherein this court held that the High Court had no power under Article 226 to issue a writ of certiorari in order to quash an error of fact, even though it may be apparent on face of the record unless there is an error of law which is apparent on the face of the record. The court observed that the jurisdiction of the High Court is limited to seeing that the judicial or quasijudicial tribunals or administrative bodies exercising quasi-judicial powers do not exceed their statutory jurisdiction and correctly administer the law laid down by the Statute under which they act. 3. In H.S. and I.E. Board, U.P. Versus Bagleshwar AIR 1966 SC 875, the court held that an order passed by a Tribunal holding a quasi judicial enquiry which is not supported by any evidence is in order which is erroneous on the face of it and as such is liable to be quashed by the High Court under Article 226. In Parry & Co. Versus Judge, 2nd I.T. Cal. AIR 1970 SC 1334 the court held that a writ is granted generally when a court has acted without or in excess of its jurisdiction or where the Tribunal acts in agrant disregard of the rules of procedure or violates the principle of natural justice where no particular procedure is prescribed. 4. In Bhagat Ram Versus State of H.P. AIR 1983 SC 454 the court held that where a nding of the disciplinary authority is utterly perverse, the High Court can interfere with the same. 5. In S.N. Mukherjee Versus Union of India (1990) 4 SCC 594, the Constitution Bench dealt with a case wherein the appellant had challenged the validity of the nding and the sentence recorded by the General Court Martial and the order of the Chief of Army Sta conrming the same. The court held that the Supreme Court under Article 32 and the High Court under Article 226 have the power of judicial review in respect of proceedings of courts martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suer from a jurisdictional error or any error of law apparent on the face of the record. After elaborately considering the provisions of the Army Act and Rules, the court pointed out that at the stage of recording of ndings and sentence the Court Martial is not required to record its reasons. It will be advantageous to extract the following passage in the judgment: From the provisions referred to above it is evident that the Judge advocate plays an important role during the course of trial at general court martial and he is enjoined to maintain an impartial position. The court martial records its ndings 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 nding by word of mouth or each charge

321 separately and the nding on each charge is to be recorded simply as a nding of guilty or of not guilty. It is also required that the sentence should be announced for the 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. There is no such requirement in other provisions relating to recording of ndings and sentence. Rule 66(1) proceeds 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 specic provision for recording of reasons for the recommendation to mercy. The said provisions thus negative a requirement to give reasons for its nding and sentence by the court martial and reasons are required to be recorded only in cases where the court martial makes a recommendation to mercy. In our opinion, therefore, at the stage of recording of ndings 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. 6. In Chaturvedi Versus Union of India (1995) 6 SCC 749, the court observed that judicial review is not an appeal from a decision but a review of the manner in which the decision is made and the power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. 7. Relying on the aforesaid relines learned counsel for the appellants submit that the High Court in this case has exceeded its jurisdiction not only by reappreciating the evidence but also by erroneous understanding provisions of the Evidence Act. It is argued by him that in this case there has been no violation of principles of natural justice or rules of procedure and that there is ample evidence on record to support the ndings of the Court Martial. 8. Learned counsel for the respondent contends that the court martial has relied on inadmissible evidence and over looked certain relevant evidence on record and its ndings are vitiated. He has placed reliance on the ruling in Ranjit Thakur Versus Union of India & Ors. (1987) 4 SCC 611. In that case the court found that there was failure to enquire from accused as required by section 130 of the Army Act whether he objects to trial by any of the ocers present and held that the entire proceedings was vitiated. The court went on to hold that the punishment awarded was disproportionately excessive and quashed the same. 9. Now, we shall proceed to consider the four charges found against the respondent and the decisions of the High Court thereon. 10. (a) Charge No. 2 reads as under: IN A DOCUMENT SIGNED BY HIM KNOWINGLY MAKING A FALSE STATEMENT ( Army Act Section 57 [a] ) : In that he, at eld, on 23rd

322 General Court Martial v. Col. Aniltej Singh Dhaliwal 1997 The October 1993, while being Commanding Ocer 116 Engr. Regt. signed 116 Engr. Regy. letter No. 2012/Gen/SAT/OPV dated 23rd October 1993 addressed Maj. Gen. K.C. Dhingra, V.S.M., GOC 17 Mtn. Div. stating It is brought fwd for your information that all the SRTs procured from M/s. Dhariwal Steel Pvt. Ltd. Calcutta have since been issued out for the constr. of PDs are likely to be completely ground applied by 30th October, 1993, well knowing the said statement to be false. (b) The Court Martial dealt with it in the following manner: Second Charge After considering the evidence on record the court nd that there is no denial on the part of accused for having written the said letter to Maj. Gen. K.C. Dhingra, V.S.M. It has also nowhere being brought on record that prior to date of writing this letter dated 23rd October , 1992 (Ext. Q), the accused had ascertained that the said Arts. had been issued for ground application although the accused has averred in his unsworn statement (Ext. BT) that he had checked up with Maj P.K. Mangal (PW 16). In addition to the above the following reasons clearly indicate the guilt of the accused:(a) Maj P.K. Mangal (PW 16) has deposed that on 27th September, 1992 he was told by the accused that he was issuing SRTs from defence brick stores so that early completion of permanent Defence OP Task could be ensured. (b) PW 16 has further stated that on the inster of the accused he wrote letter dated 24th October, 1993 (Ext.M) to all coys asking them to identify such PDs where the said SRTs have been utilise and conrm the same by 13th October, 1992, this action of accused is subsequent to and not prior to his writing the said letter (Ext.Q) (c) Vide his noting sheet dated 20th October, 1993 (Ext.M) addressed to Maj. Gen. K.C. Dhingra, V.S.M. the accused in para (c) had mentioned that he had accepted below specication SRTs to make up the SRTs of defence brick issued by him for Job s - 212. (d) Vide his letter to Maj. Gen. K.C. Dhingra, V.S.M. dated 20th October, 1993 (Ext. O) the accused had stated therein his opinion the SRTs supplied by M/s. Dhariwal Steel Ltd. should be utilise

323 for making up of the deciency of Defence Brick SRTs which had been issued for that the ndings of the Court Martial were wholly unsustainable.

12. Both the reasons given by the High Court for quashing the ndconsturction of PDs. ing of the Court Martial, as stated (e) 673 SRT out of a total of above, are totally erroneous. As re680 were found at ETP-V when gards the admissibility of Ex. Q-10 in evidence, Rule 182 of the Army checked by Lt. Col. K.K. Rules is not applicable to the same. Khosla (PW 27) and Capt. Sant It is brought to our notice that facRam Verma (PW 25) on 10th tually, the Court of Inquirty commenced on 28th September, 1992 and December, 1993. culminated on 14th October, 1993. (f) By common military The letter Ex. Q-10 was written only knowledge it can be inferred on 23.10.1993 i.e. after the Court of that between the date of Inquiry concluded. Further the letter was addressed to Maj. Gen. K.C. writing the letter Ext. Q-10 Dhingra, VSM. Admittedly he was i.e. 23rd October, 1993 and not a member of the Court of Inquiry probable date of completion and had nothing to do with the same. given therein i.e. 30th The only contention urged before us is that he was the Commanding ofOctober, 1993 it is not cer Incharge at the time when the possible to apply the said alleged oence took place. That is quantity of SRTs on ground. not sucient to attract Rule 182 of 11. Before the High Court the the Army Rules. contention of the respondent was 13. The Rule reads as follows: that the letter Ext. Q-10 on the ba182 Proceedings of Court of Insis of which charge No. 2 was framed quiry not admissible in evidence The was written by him in response to proceedings of a Court of Inquiry. a query from the sta Court of Inor any confession, statement or anquiry and it was therefore not admisswer to a question made or given at sible in evidence. The High Court aca Court of Inquiry shall not be adcepted that contention and held that missible the Act, nor shall any evthe said letter was not admissible in idence respecting the proceeding of view of the provisions in Rule 182 of the Court be given against any such Army Rules. It is also held by the person except upon the trial of such High Court of Army Rules. It is also person for willfully giving false eviheld by the High Court that the court dence before the Court. material had not taken into considerThe Rule refers only to the proation a report of Lt.Col. K.K. Khosla ceedings of a Court of Inquiry or any which was marked as Ex. AW. On those grounds the High Court held confession, statement or answer to a

324 General Court Martial v. Col. Aniltej Singh Dhaliwal 1997 The question made or given at a Court of Inquiry. Ex. Q 10 does not belong to any of the above categories. The latter part of the Rules refers to evidence respecting the proceedings of the Court and prohibits the same being given except upon the trial of such person for wilfully giving false evidence before that Court. That part of the rule is also not acceptable. Moreover, Ex.Q-10 does not refer to any query being put by the addressee. It has only referred to an earlier letter dated 20.10.1993. Reliance is placed upon the caption in Ex. Q-10 which makes a reference to sta of Court of Inquiry. That does not help the respondent in any manner. We have been taken through the averments contained in the writ petition led by the respondent before the High Court. They do not disclose as to how the letter could be said to be falling within the scope of Rule 182 of the Army Rules. Hence, the view of the High Court is based on a agrant error that the document was inadmissible in evidence. the responsibility on Sub. sukhdev Singh should have been accepted by the Court Martial. There is no merit in this contention. In the rst place, the High Court is error in thinking that the Court Martial had not taken into consideration Ex.A.W. On the other hand, the Court Martial has expressly referred to the evidence of Lt. Col. Khosla himself and contents of Ex.AW. Secondly, the High Court is wrong in thinking that the report xing the responsibility on Sub. Sukhdev Singh should have been accepted and the respondent should have been exonerated. Admittedly, Sub. Sukhdev Singh is a subordinate ocial. The responsibility for the stores was with the respondent. He cannot escape by contending that a subordinate ocial was responsible. It is for the Court Martial to consider the said question and come to a conclusion. When the Court Martial has held that the respondent was responsible for the lapse, it was not for the High Court to interfere with the same as there was no omission 14. The other reason given by the on the part of the Court Martial to High Court for interferring with the consider the relevant evidence. ndings is that Ex. AW by Lt. SRTs 15.(a) Turning to Charge No.3 out of a total of 680 were found at the same is to the following terms: ETP-V when he checked the same IN A DOCUMENT SIGNED BY on 10.12.1993. Lt. Khosla was ex- HIM KNOWINGLY MAKING A amined as PW 27 before the Court FALSE STATEMENT:- Army Act Martial and there is a specic ref- Sec. 57(a) In that he, erence to the same in the order of as led, on 23rd Oct. 1993 while the Court Martial. The respondent being Commanding Oce 116 Engr. places reliance on a portion of that Regt. signed 116 Engr. Regt. letreport in which the responsibility for ter OPW dated 23rd VSM, DOC 17 the lapses was attributed to Son. MTN Div. stating It is brought Sukhdev Singh. It is argued that fwd. for your info. that all the the report of Lt. Col. Khosla xing FRTs procured from M/s. Dhariwal

325 Steel Pct. Lt. Calcutta has since been issued out for the constr. of PDs in the current working season. On these PDS are likely to be completely ground applied by 30th Oct, 1993, well knowing the said statement to the false (b) The decision of the Court Martial was a followed: THIRD CHARGE:- In support of this nding the evidence i.e.on record is as follows: (a) Lt. Col. B. Manickam, PW-5 has deposed that during second week of November 1992 he was called by the accused in his oce where he was made to sign the Bd. proceedings pertaining to generators and alternators (Ex.U). At the same time the accused asked him to take the Bd. proceeding to Maj. G.K. Mediratta (PW 21) and obtained his signatures also on the Bd. proceeding to whom the accused had already spoken to PW 6 has also stated that at no stage the Bd. of oers has physically assembled to check the generators/alternators after repairs. (b) Maj. G.K. Mediratta, 9PW 21) has deposed that the Bd. proceeding were brought to him by PW 6 and he signed the said Bd. proceedings. he has also averred that the Board physically never assembled. (c) Sub. KKV Pilla (PW 24) has deposed that he signed the Board proceedings on insistence of PW 21 and he did not even known at that stage which Bd. proceeding he was signing. the said Bd. proceeding (Ex.U) were neither countersigned nor dated and on the inster. of accused he put the date as 27 (Exhibited as U-5)d. He (PW 11) has further stated that at the time of making payment he had also informed the accused that it will not be correct to make the payment since all generators had not come after repairs. (e) According to deposition of Hav. Amin ali (PW 12) and Hay. B.L. Prajapati (PW 28), the generators kept coming even after 30th Nov. 1992 i.e. the date of payment. 16. The respondent contended before the High Court that the oral evidence of PWs6, 21 and 24 was not admissible in view of the provisions of Section 94 of the Evidence Act as the same was contrary to the proceedings of the Board. The High Court has accepted the said contention and held that Section 94 of the Evidence Act barred the admissibility of the oral evidence. The High Court has also observed that the Members of the Board who has deposed that they had assigned the Board proceedings because the respondent wanted them to do so should have been proceeded against for their lapses. According to the High Court the non consideration of the said aspect of the matter was a gross omission on the part of the Court Martial. It was further observed by the High Court that the evidence of PW 20 was omitted to be considered by the Court Martial.

(d) Major MMS Bharaj (PW 11) 17. None of the reasons given by has deposed that before making the payment he had told the accused that the High Court is sustainable. A perusal of Section 94 of the Evidence

326 General Court Martial v. Col. Aniltej Singh Dhaliwal 1997 The Act shows that it has no applicability Srinivasan versus Union of India AIR whatever. The Section reads thus: 1958 S.C. 419, Basant Singh Versus 94. Exclusion of Evidence against Janki Singh AIR 1967 S.C. 341 and application of document to existing P.Ex-s. Co-op. T. F.S. Versus State of Haryana. AIR 1974 S.C. 1121. facts:When language used in a document is plain in itself and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts The Section will come into play only when there is document and the language of it has to be considered with reference to a particular factual situation. That Section will apply only when the execution of the document is admitted and no vitiating circumstance has been put forward against the same. In the present case, the document in question is a proceeding of the Board. If at all, it can only be said that said document contains an admission made by the signatories thereto that they had checked the materials and the serviceability thereof. It is well settled that an admission can be explained by the markers thereof. In Naqubai Versus B. Shama Rao AIR 1956 S.C. 593 the Court held an admission is not conclusive as to the truth of the matter stated therein and it is only a piece of evidence, the weight to be attached to which must depend upon the circumstances under which it is made. The Court said that it may be shown to be erroneous or nature so long as the person to whom it was made has not acted upon it at the time when it might become conclusive by way of estoppel. The same principle has been reiterated in K.S. 18. The appellants herein contended before the High Court that the relevant provision of the evidence Act is Section 92, Proviso 1. The same contention was repeated before us. In our view neither Section 92 nor Section 94 is attracted in this case. Hence, the view of the High Court that the oral evidence given by PWs 6, 21 and 24 is inadmissible is totally erroneous. 19. There is another aspect of the matter to be considered. Section 133 of the Army Act provides that the Indian Evidence Act shall subject to the provisions of the Act applied to all proceedings before the Court Martial. Section 134 provides that a Court Martial may take judicial notice of any matter within the general military knowledge of the members. It is quite obvious that in this case the Court Martial had taken judicial notice of the fact that a lower ocial obeys implicitly the directions of a higher ocial. The respondent being an ocial higher in rank to the aforesaid witnesses, the latter carried out his directions by signing the Board proceedings. The High Court has also observed that the evidence of PW 20 was not considered by the Court Martial. We are unable to appreciate how the evidence of PW 20 is relevant in this regard. Hence, the reasoning of the High Court for setting aside the nding of the Court Martial on Charge No.3 is wholly un-

327 sustainable. 20. (a) Charge No.8 was signed the Bill No.420/92-93 in the following terms:dated 27 February 1993 after he SUCH AN DEFENCE AS IS had informed the accused that Capt. MENTIONED IN CLAUSE (f) OF A.K. Jain has refused to sign since SECTION 52 OF THE ARMY ACT no stores have been received. WITH INTENT TO DEFRAUD in that he, at eld, between 30 Dec. 1992 and 22 July 1993, while being the Capt. A.K. Jain was also not available at Mile 2 location at that time. The accused, thereafter, instructed Capt. A.K. Gautam (PW 32) to sing the said bill and he accordingly signed.

Commanding Ocer of 116 Engr. (c) Lt. Col. B. Manickam Regt. with intent to defraud, made (PW 6) has deposed that the acpayments of Rs. 7,720/- (Rupees cused asked him to take on charge seven thousand seven hundred ATG stores which he refused since twenty only) against purported sup- no stores had arrived. He further reply of AIG Stores as per Appx B to ected the the charge-sheet, well knowing that deciency of ATG stores in handno such items were infact received in ing taking over noted ME-2 which the said unit was brought to the notice of accused (b). It is dealt with by the Court on 09 June 1993. Martial in the following terms. (d) The fact that accused was Eight Charge:- The reasons are made aware on 09 June 1993 that as follows: physically no ATG store had been (a) Hav. Rajkumar Singh (PW received and yet he did not take any 30) has deposed that on 18 March action, is an indication of his intent. 1993, Hav. Pillai brought a CRX for 21. The High Court reversed the 2 Ltrs of paint and 4 brushes 75 mm. nding on this charge on the same As he reasoning as with reference to Charge was not dealing with A10 stores No.3. The High Court has held that he refused to sign the CRV. There- the oral evidence adduced before the after he was called by the accused Court Martial was inadmissible. The and ordered to sign the CRV and reasons which we have already give he accordingly signed CRV dt. 18 when we dealt with Charge No.3 are March 1993 (Ex. BL) equally applicable here. (b) Capt. A.K.Gautam (PW 32) 22. Hence, we hold that the High has court s in error in interferring with deposed that he had not received the ndings of the Court Martial on any ARG stores in February Charge No.8. 1993. He has further deposed that he 22. The Nineth Charge read as follows:

328 General Court Martial v. Col. Aniltej Singh Dhaliwal 1997 The AN OMISSION PREJUDICIAL pected suicide: (iii) Murder or an atTO GOOD tempt to murder. (iv) Rape ORDER AND MILITARY DIS(v) MT accidents resulting in faCIPLINE tal or serious causalities, accidents involving civilian vehicles resulting In that he, in damage to property or injuries to at led, between 01 Nov. 92 and civilians or persons subject to Army 21 Nov. 93 while being the ComAct. (c) Other serious cases e.g. manding Ocer of 116 Engr. Regt. unnatural deaths not covered under and having come to know about the sub-para (b) above. losses/deciencies of Defence 24. It is quite obvious that Brick Stores on charge of his reg- the charge framed against the reiment, improperly omitted to spondent will not fall under Para The charge is not that report the said losses/deciencies 1(c). some other persons brought about in contravention of Para 1(c) of losses/deciencies of defence Brick SAO 13/s/80. Store and the same was not reported 23. It is unnecessary for us to by the respondent. Not is the charge consider the discussion of this charge to the eect that it was the reby the Court Martial for on the spondent himself who caused such face of it the charge is unsustainlosses/deciencies. The charge itself able. The charge is under Para is very vague. The High Court is 1(c) of SAO 13/2/80. A copy of therefore justied in holding that the the said SAO has been produced charge is defective and the responbefore us. The relevant part of it dent cannot be made guilty. reads as follows: ADJUTANT GEN25. There is no doubt that the ERALS BRANCH SAO 13/s/80 DISCIPLINE-PROCEDURE FOR High Court has erroneously set aside SUBMISSION OF REPORTS RE- the ndings of the Court Martial on GARDING INCIDENTS AND OF- Charges 2,3 and 8. Now that we upFENCES INVOLVING ARMY hold the ndings of the Court MarPERSONNEL AND FOR THEIR tial on the said charges, the only INVESTIGATION. Incidents and of- question which remains to be considered is that of punishment awarded fences to be reported. to the respondent. Prima facie, the 1. The following incidents and ofsentence awarded by the Court Marfences will be reported: tial appears to be very service. But (a) All cases of assault and aray we do not want to decide the queswhere persons subject to Army Act tion here. As the Court Martial are involved. awarded such a sentence on the basis of the ndings on all the four charges, (b) Breaches of discipline:namely, 2, 3, 8 and 9 the same can(i) Collective insubordinations. not be sustained as we have now (ii) Suicide, attempted or sus- held that Charge No.9 is unsustain-

329 able and the nding thereon has been rightly quashed. Hence, the question of sentence has to be considered on the basis of three charges namely 2, 3 and 8 being found against the respondent. That has to be done by the Court Martial. Therefore, the matter has to be remanded back to the Court Martial for deciding that question. 26. Consequently the appeal is partly allowed and the judgment of the High Court is set aside except with reference to its conclusion on charge No.9. The sentence awarded by the Court Martial is set aside and the matter is remitted to the Court Martial for considering and passing an appropriate sentence on the basis of ndings on Charges 2, 3 and 8. 27. In the facts and circumstances of the case we nd it necessary to invite attention of appellants 2 to 4 to consider initiating appropriate proceedings against PWs 6, 21 26, 30 and 32 who deposed at the Court Martial that they had signed or prepared ocial record on the oral directions of the respondent without verifying the correctness thereof which act of their was in direction of duties. These state of aairs is highly distressing. We record our displeasure.

330 General Court Martial v. Col. Aniltej Singh Dhaliwal 1997 The

Chapter 26

Union of India v. Capt. A.P. Bajpai 1998

Union of India & Ors v. Capt. that he, at Pithoragarh on 08 Sep A.P. Bajpai [1998] INSC 119 (20 77 committed theft of the following February 1998) property belonging to the Govt :Sujata V. Manohar, D.P. Wad(aa) Jam td Kissan 4 tins (450 hwa D.P. Wadhwa. J. gms each) - 1.800 Kgs ACT: HEAD NOTE: (bb) Pine apple td 6 tins (850 gms each) - 5.100 Kgs.

(cc) Sausage td 9 tins (400 gms THE 20TH DAY OF FEBRUeach) - 3.600 Kgs. ARY, 1998 Present : (dd) Coee 1 tins (500 gms) Honble Mrs. Justice Sujata 0.500 Kgs. V. Manohar Honble Mrs. Justice D.P. Wadhwa P.P. Malhotra, N.N. Goswami, Sr, Advs., A.K. Srivastava, Hemant Sharma and Ms. Anil Katiyar, Advs, with them for the appellants. J.S. Sinha, Rajiv Dutta, Randhir Singh, Advs, for the Respondent The following Judgment of the Court was delivered: The respondent, an ocer in the army, was tried by General Court Martial on the following two charges: (i) Under Army Act Section 52(a) for committing theft of property belonging to the Government in (ee) Milk td 54 tins (397 gms each) - - 21. 438 Kgs. (ii) Under Army Act Section 39 (b) for absenting himself without leave in that he, at Pithoragarh, in 03 Jun 78, while attached to Station Headquarters Pithoragarh, absented himself without leave until voluntarily rejoined on 07 Jun 78. After the conclusion of the trial by order dated January 21, 1979 General Court Martial held the respondent not guilty of the rst charge of theft, but found him guilty of the second charge and sentenced him to for-

332

Union of India v. Capt. A.P. Bajpai 1998 the MIML 1961 reprint, which should be modied to conform to Army Rule 62(10). In pursuance to the aforesaid order of the conrming authority, General Court Martial assembled on March 10, 1979 and on the request of the respondent was adjourned to the following day. The respondent made written submissions which were taken on record. After reconsideration the court held the respondent guilty of both rst and the second charges. Respondent was thereafter sentenced to be dismissed from service by order dated March 11, 1979. The conviction and sentence so passed on the respondent was conrmed by the Chief of the Army Sta by order dated September 14, 1979 which was promulgated on September 24, 1979. The respondent under Section 164 (2) of the Act preferred a post conrmation petition before the Central Government which was rejected. The respondent thereafter led the writ petition in the High Court of Judicature at Allahabad challenging his conviction and sentence. A Division Bench of the High Court by impugned judgment dated December 22. 1992 set aside the conviction and sentence passed on the respondent on the rst charge and held that punishment on the second charge was yet to be conrmed by the conrming authority so as to make the same operative.

feit three years service for the purpose of promotion and to be severely reprimanded. Under Section 153 of the Army Act, 1953 (for short the Act), the nding or sentence shall be valid except so far as it may be conrmed as provided by the Act. Under Section 154 the nding and sentence of General Government, or by any ocer empowered in this behalf by warrant of the Central Government. When the matter was placed before the General Ocer Commanding U.P. Area, the competent conrming authority, he in the exercise of his power under Section 160 of the Act revised the ndings of the General Court martial on the rst charge and directed it to reconsider the entire evidence relating to the rst charge in the light of the observation made by him in the order. He gave the following directions for the General Court Martial to observe: If the Court, on revision, revokes its earlier nding on the rst charge and nd the accused guilty of the rst charge, it shall revoke its earlier sentence and pass a suitable fresh sentence. After this revision order is read in open Court, the accused shall be given a further opportunity to address the Court. Therefore, if it becomes necessary to clear any points raised by the accused, the Judge Advocate may give a further Summing up.

On leave being granted, the apThe attention of the Court is in- pellants have led this appeal. vited to Army Act Section 160 and The stage from which the High Army Rule 68 and the form of pro- Court thought it necessary to inceedings on revision on page 370 of

333 terfere in the proceedings was when the conrming authority passed order under Section 160 of the Act revising the order of the General Court Martial holding the respondent not guilty of the rst charge. High Court was of the view that the conrming authority had analysed the evidence minutely almost returning the nding of guilt against the respondent and leaving no discretion with the General Court Martial to act otherwise. High Court termed the observations of the conrming authority unwarranted and said that even the subsequent conrming authority being the Chief of the Army Sta overlooked the abuse of the power committed by the rst conrming authority under Section 160 of the Act in reappreciating the whole evidence on record in respect of the quilt of the respondent and further that the authorities did not care to read the revisional order of the conrming authority properly and rejected the statutory representation of the respondent. High Court did notice the following observations of the conrming authority in its order of revision but said it was a very ingenious method adopted by the conrming authority to inuence the Court Martial and said that the whole thing was a mere camouage: the nding of not guilty on the rst charge arrived at by the court is perverse being against the weight of overwhelming evidence.... High Court was thus of the view that the rst conrming authority overstepped its jurisdiction and that its order was invalid. High Court relied on a decision of the Delhi High Court in Naib Subedar Avtar v. Union of India [1989 Cr1.L.J. 1986 rendered by a single Judge where that Court took the view that the conrming authority could not appreciate evidence as its jurisdiction was limited and that where the conrming authority had given directions to the Court Martial to reverse the ndings of not guilty into guilty, the order of the conrming authority was held to be bad and liable to be quashed. In our view, the High Court did not properly appreciated the scope and intent of Section 160 of the Act. Section 160 is as under: 160. (1) Any nding or sentence of a court martial which requires conrmation may be once revised by order of the conrming authority and on such revision, the court, if so directed by the conrming authority, may take additional evidence. (2) The court, on revision, shall consist of the same ocers as were present when the original decision was passed, unless any of those ofcers are unavoidably absent.

While in no way wishing to interfere with the discretion of the court to arrive at a particular nding or sentence, and regarding the value to be attached to the evidence (3) In case of such unavoidable on record and the inference to be absence the cause thereof shall be deducted therefrom, I, as the con- duly certied in the proceedings, and rming ocer, am of the view that the court shall proceed with the revi-

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Union of India v. Capt. A.P. Bajpai 1998 have failed to appreciate. The nding of sentence of the Court Martial can be revised once by the conrming authority. If after remand the Court Martial returns the same nding or sentence conrming authority would be bound by the same. As to why the conrming authority would like the Court Martial to reconsider the matter, it has per force to give its views which it can do only after examining the evidence on record and the proceedings of the Court Martial. In Capt. Harish Uppal v. Union of India and Others [1973 2 SCR 1023] the petitioner, an ocer in the Army, was tried before the Summary General Court Martial on the charge of committing robbery on December 11, 1971 at Hajiganj (in Bangladesh) of the properties of the Bank, its Manager as well as of the Chowkidar. The court sentenced him to be cashiered. This sentence was subject to conrmation.

sion provided that, if a general court martial, it still consists of ve ofcers, or, if a summary general or district court martial of three ocers. Rule 68 of Army Rules, 1954 deals with conrmation and revision of nding or sentence of a Court Martial. There are Notes under this Rule and Note 6 is relevant. These are: 68. Revision.- (1) Where the nding is sent back for revision under Section 160, the court shall reassemble in open court, the revision order shall be read, and if the court is directed to take fresh evidence, such evidence shall also be taken in open court. The court shall then deliberate on its nding in closed court. (2) Where the nding is sent back for revision and the court does not adhere to its former nding, it shall revoke and nding and sentence and record the new nding, and if such new nding involves a sentence, pass sentence afresh.

The conrming authority passed (3) Where the sentence alone is sent back for revision, the court shall an order directing the revision of the sentence. Thereafter the petitioner not revise the nding. was brought before the same Court (4) After the revision, the preMartial and after considering the obsiding ocer shall date and sign the servations of the conrming authordecision of the court, and the proity revoked the earlier sentence and ceedings, upon being signed by the now sentenced him to be cashiered Judge Advocate, if any, shall at once and to suer rigorous imprisonment be transmitted for conrmation. for two years. This nding and senNOTES 1 to 5 xxx xxx xxx tence were subsequently conrmed. 6. If a court brings in a nd- It was challenged in the Supreme ing of not guilty against the weight Court in a petition under Article 32 of evidence, the court may be re- of the Constitution and one of the assembled and the conrming ocer arguments was that the authority may give his views on the evidence, to conrm the sentence passed by a directing the attention of the court to Court Martial did not confer on the any special points which it appears to conrming authority the power to en-

335 hance the sentence and that authority could not achieve that object indirectly by directing the revision of the sentence. It was contended that the Court Martial verdict should be unfettered. This Court examined the order of revision of the conrming authority. While sending the matter back of the Court martial the conrming authority gave a caution that whilst in no way intending the quantum of punishment to be awarded, the court should fully of punishment to be awarded, the court should fully take into consideration the following observations of the Conrming Ocer and also that the court should then carefully consider all the above and should they decide the enhance the sentence, then fresh sentence should be announced in open court as being subject to conrmation. This Court held that the order of the conrming authority directing revision was in no way vitiated. when it was reconsidering the matter in pursuance of a direction having been issued under Section 160 had to apply its mind to the case independently, uninuenced by any observations which might have been made in the direction given by the conrming authority. These two decision, it would appear, were not brought to the notice of the Judges of the Allahabad High Court while delivering the impugned judgment as there is no reference to the aforesaid two decisions, one of the Supreme Court and the other of the Division Bench of the Delhi High Court.

In Ex. Lieut Jagdish Pal Singh v. Union of India and Ors. [Criminal Appeal NO. 104 of 1991 decided on May 7, 1997] the appellant was a commissioned ocer in the Army and faced trial before a Court Martial on the accusation of taking away large number of bottles of Rum worth about Rs.5616/- from the milIn Gian Chand v. Union of India itary canteen. After trial the Court and others [1983 Crl.L.J. 1059] a di- Martial held the charge not proved vision bench of the Delhi High Court against the appellant. said that a direction given by the When the matter was placed beconrming authority to the General fore the conrming authority as reCourt Martial to reconsider the nd- quired under Section 153 of the Act, ing or sentence could not be said to the conrming authority remitted be a fetter on the exercise of powers the matter to the Court Martial inof the General Court Martial. High dicating various aspects of the case Court said that an order under Sec- which had not been considered proption 160 was a sort of an application erly. It was made clear by the confor review which was made by the rming authority at the outset that conrming authority and the statute, the observations made by the conthereupon, caste a duty on the Gen- rming authority were not made to in eral Court Martial to reconsider its any way interfere with the discretion earlier nding or sentence but it was of the members of the Court Martial not obliged to change its earlier view. in basing its nding on reconsideraIt further said that the Court Martial tion of the matter.

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Union of India v. Capt. A.P. Bajpai 1998 which was in no way the function of the conrming authority or that jurisdiction by conrming authority. It was asserted that the order in revision was liable to be quashed and rightly done so by the High Court. All this, however, appears to us to be mistaken view entertained by the High Court both in law and from the facts of the case. There is no dispute that in the conduct of the Court Martial proceedings before and at the stage of reconsideration procedure as prescribed was followed. It is the true that the conrming authority did analyses the evidence on the record of proceedings of the Court Martial but that was so done in the context of indicating where the Court Martial could have gone wrong in appreciation of evidence and nevertheless caution had been administered to the Court Martial that what was said in the revision order was not intended in any way to interfere with the discretion of the Court Martial to arrive at a particular nding or sentence and regarding the value to be attached to the evidence on record and the inference to be deducted there from. Conrming authority said: Consequently, I am also of the view that the sentence awarded on nding the accused quality of the second charge is not commensurate with the gravity of the oence. At the very outset, I wish to impress that where the Court ignores the broad features of the prosecution case, and restricts itself to a consideration of minor discrepancies and further meticulously juxtaposes the ev-

Thereafter the Court Martial met again and on reconsideration came to the nding that the appellant was held guilty of the oence and sentenced him to be dismissed from service. The nding and sentence were later conrmed by the conrming authority. The appellant led a writ petition in the Delhi High Court it was contended that the revisional authority was empowered merely to direct for additional evidence and that no such direction had been given and on the contrary observation on merits of the case was made overstepping the limit of jurisdiction by the conrming authority. This Court held that the conrming authority had not made any nding which was likely to cause prejudice against the appellant and that it had at the very outset made it clear that the Court Martial was free to decide by adverting to certain basic features indicated by the conrming authority. This Court therefore refused to interfere in the matter. We are unable to subscribe to the submissions now advanced before us that the jurisdiction of the conrming authority is conned only to giving of directions for recording additional evidence by General Court Martial or that from the order of the conrming authority inference cannot be escaped that this is based not on any independent judgment but inuenced by the undisguised opinion expressed by the conrming authority on merits of the case or that the revisional order contained such unwarranted observations, which were tantamount to recording of nding,

337 idence of dierent witnesses on disputed points and discards the evidence in its entirety when discrepancies are found, the method can rightly be criticised as fallacious. It has to consider whether there is any direct/reliable evidence on questions which have to be established by the prosecution. Undoubtedly, in considering whether evidence is reliable, it is justied in directing attention to other evidence which contradicts or is inconsistent with the evidence relied upon by the prosecution. But to discard all evidence because there are discrepancies without any attempt at evaluation of the inherent quality of the evidence is unwarranted. The court should make an eort to disengage the truth from falsehood. It is an error to take and easy course by holding the evidence discrepant and the whole case untrue. Even when the prosecution witnesses have not deposed the whole truth and although it may not be possible to get an absolutely true picture of the events from their evidence, it is not proper and justiable to say that the prosecution case is a complete fabrication. Bearing in mind these principles the Court should examine the evidence adduced before them in respect of each charge. It was contended by the respondent that the very use of the expression perverse in the revision order would have inuenced the mind of the members of the General Court Martial as the ocers constituting the General Court Martial were lower in rank than the conrming authority who was of the rank of Major General and that the conrming authority of its own appreciated whole of the evidence instead of saying as to what evidence was to be considered by the General Court Martial which had the eect of inuencing the General Court Martial. An argument was also raised that when the Court Martial reassembled after the revision order the whole proceeding concluded within half an hour and the General Court Martial returned nding of guilt against the respondent. That according to the respondent would show that the General Court Martial did not apply its mind independently and was swayed by the opinion of the conrming authority. It was lastly submitted that there was no ground for the conrming authority to interfere in the proceeding of the General Court Martial which had considered the evidence and argument in depth and held the rst charge not proved against the respondent. We are unable to agree to any of the submissions. Conrming authority cannot act merely as a rubber stamp. The fact that the nding and sentence of Court Martial should be valid only after it is conrmed by the competent authority would show that it has to examine the whole of the record of the proceeding of the Court Martial before conrming the nding or sentence. It is the requirement of Section 160 that when the conrming authority wished that the nding or sentence of a Court Martial required revision it should not send back the case as a matter of course but record reasons as to why the conrming authority thought so

338

Union of India v. Capt. A.P. Bajpai 1998 guilty of the rst and second charge. It cannot be said that the nding and sentence after reconsideration was arrived at in a hurried fashion. We have noted above that now it was the Chief of the Army Sta who conrmed the nding and sentence and when he did so it could not be said that the whole of the record was not before him. We do not think that the conrming authority exceeded its jurisdiction in analysing the evidence recorded during Court Martial proceedings. The revision order was not intended in any way to interfere with the discretion of the Court Martial and the Court Martial was also not bound by any such observation. We, therefore, allow the appeal, ser aside the Judgment of the High Court and dismiss the writ petition led by the respondent.

as to where the Court Martial has failed in its duty to properly examine the facts and in application of correct law. When the matter is remitted back to the Court Martial under Section 160 the Court Martial may take additional evidence if so directed by the conrming authority. In the present case no such direction was given by the conrming authority and there was no occasion for the General Court Martial to record additional evidence. Full opportunity was given to the respondent to make submission before the General Court Martial after it had reassembled and as the record would show copy of the revisional order was also supplied to respondent and he made his submission in writing. The Court thereafter that it revoked its earlier nding and sentence and held the respondent

Chapter 27

Union Of India v. Subedar Ram Narain 1998

Union Of India v. Subedar Ram Narain on 15 September, 1998 Equivalent citations: AIR 1998 SC 3225, JT 1998 (6) SC 383, 1998 LablC 3530 Author: B Kirpal Bench: S Bharucha, G Nanavati, B Kirpal his superior ocer, and Section 48 of the Army Act, 1950 for being in a state of intoxication while on duty.

3. The General Court Martial found the respondent guilty and thereupon he was dismissed from serJUDGMENT vice on 01.08.1989. He led an appeal to the Chief of the Army Sta B.N. Kirpal, J. against the decision of the General 1. The only question which arises Court Martial but the same was refor consideration in this and the conjected after due consideration. nected appeals is whether the respon4. The respondent then led writ dent who was junior commissioned petition No. 423 of 1989 in the High ocer, would be ineligible for pension or gratuity in respect of all his Court of Jammu and Kashmir prayprevious service on his being dis- ing for quashing of the court martial proceedings. This petition was howmissed under the Army Act, 1950. ever, withdrawn and another writ pe2. The respondent was enrolled tition No. 917 of 1991 was led in in the Indian Army on 17.03.1962. the Delhi High Court for the grant He was promoted to the rank of of pensionary benets. The High Subedar Major with eect from 1st Court while relying upon the deciMarch, 1984. While he was servsion of this Court in the case of ing with 75 Medium Regiment he Major G.S. Sodhi v. Union of Inwas kept in close arrest with eect dia, , came to the conclusion that as from 17.11.1988 and was then court the General Court Martial had not martialed under the provisions of the passed an order depriving the responArmy Act. He was charged Under dent of pensionary benets, thereSection 40(a), using criminal force to

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Union Of India v. Subedar Ram Narain 1998

fore, he would be entitled to the same Army Act, is ineligible for pension or notwithstanding his dismissal from gratuity in respect of all previous serservice. vice. 5. In this appeal by special leave In exceptional cases, however, he the challenge is to the aforesaid con- may at the discretion of President be clusion of the High Court. granted service pension or gratuity at 6. On behalf of the appel- a rate not exceeding that for which he lant it was contended by Sh. N.N. would have otherwise qualied had Goswami, learned senior counsel, he been discharged on the same date. that the provision with regard to eligibility for receipt of pensionary benets by the junior commissioned ocer on being dismissed or discharged under the Army Act is governed by Regulation 113(a). This provision, it was contended, was dierent from the provision which was applicable in the case of dismissal of commissioned ocers. It was submitted that the High Court, in the instant case, erred in relying upon a decision of this Court in Major Sodhis case (supra) which did not pertain to the applicability of Regulation 113(a). Our attention was drawn to Regulation 16(a) which related to the payment of pension to an ocer who is cashiered, dismissed, removed or called upon to retire, it was that regulation which had application in Major Sodhis case. 7. Chapter III of the Regulations relates to junior commissioned ocers, other ranks and noncombatants (enrolled). It is not in dispute that the provisions of this chapter applied to the respondent in this and other appeals. Regulation 113 with which we are concerned reads as follows : 113(a) An individual who is dismissed under the provisions of the (b) As individual who is discharged under the provisions of Army Act the rules made thereunder remains eligible for pension or gratuity under these Regulations. Regulation 16(a) falls in Chapter II of the Regulations which relates to the commissioned ocers. The said regulation, in so far as it is relevant, reads as follows : 16(a) When an ocer who has to his credit the minimum period of qualifying service required to earn pension, is cashiered or dismissed or removed from service, his pension may, at the discretion of the President be either forfeited or be granted at a rate not exceeding that for which he would have otherwise qualied had he retired on the same date. 8. Referring to the said regulations this Court has held in Maj. (Retd.) Hari Chand Pahwa v. Union of India and Anr., [1995] Supp. 1 Supreme Court Cases 221 and Union of India v. Brig. P.K. Dutta (Retd.), , that even if these regulations are not statutory the same are still binding because pensionary benets are payable only under these regulations and, therefore, the same can be forfeited in the manner and circumstances as provided for by the said

341 regulations. 9. The rst sentence of Regulation 113(a) clearly provides that an individual who is dismissed under the provisions of the Army Act is ineligible for pension or gratuity in respect of all previous service. In other words a person like the respondent to whom Section 113(a) applies will not be entitled to receive any pension on an order of his dismissal being passed. Clause (b) of Section 113 makes a distinction in the case of a person who is discharged, and not dismissed, under the provisions of the Army Act. In the case of discharge a person remains eligible for pension or gratuity under the said regulation. The latter part of Section 113(a) provides that in exceptional cases the President may, at his discretion, grant service pension or gratuity at a rate not exceeding that for which an individual would have otherwise qualied had he been discharged, and not dismissed, on the same day. Reading Regulation 113 it is clear that in the case of a junior commissioned ocer or a person belonging to other rank or a noncombatant (enrolled), he would become ineligible for grant of pension or gratuity on the passing of an order of dismissal. The disentitlement to pensionary benets is the normal result of a dismissal order. But the President may, in exceptional cases, at his discretion, order the grant of pension. Therefore, if no order is passed by the President then the result is that the dismissed junior commissioned ocer remains disentitled to pension or gratuity. 10. The terms of Regulation 16(a) are clearly dierent from Regulation 113(a). According to Regulation 16(a) when an ocer, as dened in Section 3(xviii) of the Army Act, 1950, is cashiered or dismissed or removed from service then the President has the discretion of either forfeiting his pension or ordering that he be granted pension at a lesser rate. The dismissal, removal etc. of a commissioned ocer does not, in other words automatically result in the forfeiture or lessening of his pension. Power is, however, given to the President that in such a case he may either direct the forfeiture of the ocers pension or reduction in the rate thereof, Major Sodhis case was one which dealt with the question of forfeiture of a commissioned ocers pension on his being dismissed from service. It is in the context of Regulation 16(a) that it was observed that as no order was passed under the said regulation, therefore, the ofcer concerned would be entitled to the receipt of full amount of pension or gratuity which would normally be payable to him. 11. The question with regard to forfeiture of pension in the case of a junior commissioned ocer to whom the provisions of Regulation 113 applied came up for consideration before this Court in Union of India and Ors. v. R.K.L.D. Azad, [1995] Supp 3 Supreme Court Cases 426. After referring to Regulation 113(a), this Court at page 429 observed as follows : In view of the plain language of the above regulation the respon-

342

Union Of India v. Subedar Ram Narain 1998 ing degrees, from death as provided by Section 71(a) to stoppage of pay and allowance as provided by Section 71(h). The punishment of forfeiture of pay and allowances as provided by Section 71(j) is of a lesser nature than that of dismissal from service as provided by Section 71(e). When punishment Under Section 71(j) is imposed no recourse can be had to Regulation 113(a), because the said regulation applies only if an order of dismissal is passed against the person concerned. In other words Section 71(j) and Regulation 113(a) cannot apply at the same time. On the other hand when the punishment of dismissal is inicted Under Section 71(e) the provisions of Regulation 113(a) become attracted. The result of punishment is that the benet of pension or gratuity which is given under the regulation is taken away. The order of dismissal under the provisions of the Army Act in the case of an employee like the respondent would make him ineligible for pension or gratuity. For a person to be eligible to the grant of pension or gratuity it is imperative that he should not have been dismissed from service. The dismissal under the provisions of the Army Act is, therefore, a disqualication for getting pension or gratuity. 14. It was also submitted by Sh. Malhotra that Regulation 113(a) was discriminatory and, further, pension which is earned becomes the property of the person concerned and the same cannot be taken away. But no such contention was raised before the High Court. In any case we

dent cannot lay any legal or legitimate claim for pension and gratuity on the basis of his previous service as, admittedly, he stands dismissed in accordance with Section 73 read with Section 71 of the Act. The second question must, therefore, be answered in the negative. 12. Sh. Prem Malhotra, learned counsel for the respondent submitted that withholding the pension when the respondent had been court martialed and dismissed would amount to double jeopardy. It was submitted that Under Section 71(j) of the Army Act one of the punishments which could be inicted after a court martial was that of forfeiture of pay and allowances for a period not exceeding three months for an oence committed on active service. Elaborating this contention, it was submitted that like dismissal from service as provided by Clause (e) of Section 71 of the Army Act, forfeiture of pay and allowances was one of the punishments which could be imposed under Clause (j). If such a punishment of forfeiture had been awarded, the respondent would have continued to remain in service but by ordering the dismissal from service Under Section 71(e) he is also being deprived, under Regulation 113(a), of the pension which he had earned. 13. We nd no merit in this contention. Section 71 of the Army Act provides for dierent types of punishments which could be inicted in respect of an oence committed by a person subject to the Army Act and convicted by courts martial. The punishments are of vary-

343 see no merit in the said contention. Firstly, junior commissioned ocers and commissioned ocers belong to dierent classes. They are not similarly situated. Moreover pension is granted by the rules and regulations which can and do provide for the circumstances which would make a person ineligible to receive the same. Dismissal makes a junior commissioned ocer disentitled to receive pension or gratuity. Regulation 113(a) is not in any way invalid. a right, in the case of a person dismissed under the provisions of the Army Act but in exceptional circumstances and at his discretion to grant service pension at a rate not exceeding that for which the individual concerned would have otherwise qualied had he been discharged on the same day.

16. In view of the aforesaid this appeal is allowed, the judgment of the High Court is set aside the result of which would be that the writ petition led by the respondent would 15. For the aforesaid reasons we stand dismissed. There will be no orcome to the conclusion that unlike der as to costs. Regulation 16(a) which applies to Civil Appeal Nos. 3613/94, the commissioned ocers, in the case 7467/94 and 4852 of 1995. of non-commissioned ocers other 17. The question involved in ranks and non-combatants (enrolled) these appeals is identical to the one the dismissal of such a person under in Civil Appeal No. 3609 of 1996. the Army Act would ipso facto renFor the reasons stated therein these der him ineligible for pension or graappeals are also allowed but with no tuity. The President, however, has order as to costs.

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Union Of India v. Subedar Ram Narain 1998

Chapter 28

Union of India v. Hav Clerk SC Bagari 1999

Union of India & Ors v. No. ular Commissioned Ocers can be 664950 Im Havildar/Cierk Sc Bagari granted extra-ordinary leave subject [1999] INSC 150 (15 April 1999) to certain conditions and not perSyed Shah Mohammed Quadri, sons like the petitioner, who is not an ocer. Therefore, he challenged S.N. Phukan. S.N.Phukan, J. the said Army Order before the High This appeal is directed against Court on the grounds of discriminathe full bench decision dated tion, without any lawful basis etc. 24.12.1993 of the High Court of HiBefore the High Court the machal Pradesh in Civil Writ petipresent appellants took the stand tion No, 747 of 1991. that study leave is granted to a For the purpose of appreciating Regular Commissioned Ocer to get the points urged in this appeal we higher studies having a direct and may briey state the facts. The reclose connection with the spheres spondent appeared in person before of his duties. It was also stated the High Court. In this Court though that the nature of duties of Junotices were issued he did not apnior Commissioned Ocers and nonpear hence the matter was taken up Commissioned Ocers is dierent as for hearing in his absence. The recompared to Regular Conimissioned spondent is a Havildar/Clerk in InOcers. The appellants took the dian Army and he was interested in stand that the matter of grant or prosecuting his studies further for obrefusal of study leave is purely distaining higher educational qualicacretionary. The allegation of distions such as post-graduation in law crimination was denied. It was also but he felt handicapped because of sated that for Junior Commissioned the provisions contained in Army InOcers and Noncommissioned Ofstruction namely Army Order No. 11 cers there are institutions of the of 1987 according to which only Reg-

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Union of India v. Hav Clerk SC Bagari 1999

appellants where these Ocers are Bench of this Court inter alia held trained. that equality means - equality equalWe nd from the judgment that ity as between members of the same & prayer made on behalf of the class of employees, and not equality present appellants for adjournment between members of separate, indewas denied on the ground stated in pendent classes. the judgment and the writ petition Similar views were expressed by was disposed of without hearing the the Constitution Bench of this Court learned counsel for the appellants. in Jagannath Prasad Sharma VerThe High Court relying on the sus The State of Uttar Pradesh and decisions of this Court came to the others AIR 19661 SC 1245 = 1962 nding that the duties of clerical na- (Vol.I) SCR 151 and in paragraph 15 ture are also important and there- it was inter alia held that equal profore, rejected the stand of the ap- tection of the laws does not postupellants and held that higher educa- late equal treatment of all persons tional qualication is also necessary without distinction, it merely guarantees the application of the same for clerical sta. laws alike and without discriminaAccording to the High Court tion to all persons similarly situated. the present classication for granting In The State of Mysore and anstudy leave was not founded on an intelligible dierentia and the same has other Versus P. Narasinga Rao AIR also no relation to the object sought 1968 SC 3349 = 1966 (Vol. I) SCR to be achieved and benet of study 407 this Court considered the valeave must be made available equally lidity of the Rules and it was inter to all classes of above ocers of In- alia held that it is well settled that though Article 14 forbids class legisdian Army. lation, it does not forbid reasonable We have heard Mr. P.N. Mishra, classication for the purposes of leglearned Senior counsel for the appelislation and when any impugned rule lant. or statutory provision is assailed on Before entering into the reasoning the ground that it contravenes Artigiven by the High Court let us now cle 14, its validity can be sustained if rst consider the scope and ambit of two tests are satised namely classiArticles 14 and 16 vis-a-vis dierent cation on which it is founded must classes of employees. be based on an intelligible dierentia which distinguishes persons or We may refer to: In All India Station Masters and things ground together from others Assistant Station Masters Associa- left out of the group, and the second tion Delhi and others Versus General test is that the dierentia in question Manager, General Railway and oth- must have a reasonable relation to ers AIR 1960 SC 384 = 1960 (Vol.II the object sought to be achieved and SCR 311 while considering Article 16 in other words there must be some of the Constitution the Constitution rational nexus between the basis of

347 classication and the object intended to be achieved. It was also held that Articles 14 and 16 form part of the same constitutional code of guarantees and supplement each other and in other words Article 16 is only an instance of the application of the general rule of equality laid down in Article 14 and it should be construed as such and, therefore, there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. In the decision of this Court in Indian Railway SAS (1998 (2) SCC 651), it was held that there can be many criteria for classication of posts such as administrative procedure and others which have to be taken into consideration by the authorities concerned before deciding on the classication. Situated thus, broadly speaking, concept of equality has an inherent limitation arising from very nature of the guarantee under the Constitution and those who are similarly circumstanced are entitled to equal treatment. If there is a rational classication consistent with the purpose for which such classication was made, equality is not violated. Article 16 of the Constitution does not bar a reasonable classication of employees or reasonable tests for selection. Equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate independent classes. Mr. Mishra, learned counsel for the appellant, has drawn our attention to Clauses (XII), (XV) and (XVIII) of Section 3 of The Army Act, 1950. These clauses dene Junior Commissioned Ocer, NonCommissioned Oce and Ocer. Clause (XVIII) of Section 3 of The Army Act, 1950, while dening the term Ocer, has clearly stated that the Ocer or Non-Commissioned Ofcer. Relying on the above denitions, Mr. Mishra has rightly pointed out that legislature has classied the personnel of the Armed Forces into dierent categories and this classication has not been challenged. We are of the opinion that legislature while creating dierent classes of ofcers has classied them on the basis of the requirement of armed forces and thus this classication cannot be said to be arbitrary. If pay, perks and other privileges granted to these ofcers are dierent, we are, therefore, of the opinion that there is no question of violation of provisions of articles 14 and 16 of the Constitution. Now the question is whether the impugned order, namely, Army Order No. 11 of 1987 is discriminatory. We quote below the relevant portion of the order as quoted in the impugned judgment of the High Court :- Rule 1 and 2 are given below :1. All regular Ocers will be eligible for the grant of extra leave known as Study Leave for pursuing special studies in India or Ex-India under the conditions specied in para 2 below. 2. Conditions for the grant of study leave are as under : (a) Study leave will be admissible

348

Union of India v. Hav Clerk SC Bagari 1999 study leave commences, plus an additional two three years cycle spanning the study leave period, if so required for the specic study being undertaken. Furlough rates of pay will be admissible during furlough leave when granted. The maximum period of study leave, including annual leave and furlough will be 28 months during the entire service of the ocer.

to Ocers of all Arms and Services.

(b) Study Leave may be granted to an ocer enabling him to undergo, in or Ex-India, a non academic full time regular course/programme/doctoral studies leading a recognised formal diploma/degree in institutions recognised by the Ministry of Education, Science and Technology, certied by Army Headquarters as enhancing the (e) Study leave Ex-India will orusefulness as an ocer. dinarily be admissible for those nonStudy Leave will not be granted academic courses which are not availfor correspondence courses, part time able at any University or Institution courses and attending night classes. in India. (c) Study Leave shall not be granted to an ocer who is due to retire from service within 5 years or the date of return to duty from study leave in respect of Cols and above, and 7 years for Lt.Cols and below. Residual service will be calculated in the rank of the ocer at the time of sanction of study leave. Study leave shall not be granted to an ocer who has rendered less than 10 years service. However, the minimum service can be lowered under special service can be lowered under special circumstances on merits of the case by the sanctioning authority. Residual service for battle casualties and permanent low medical category ocers whose category is either attributed or aggravated due to uncongenial military service shall be three years. (f) Study leave will be admissible not more than twice throughout the service, subject to the over all 28 months limit prescribed in sub-para (d) above. (g) Study leave vacancies will be lled up.

The application for approving study leave has to be scrutinised by the Screening Committee as per the impugned order and priorities which are to be followed by the Screening Committee are quoted below :(a) Usefulness o the subject of study to Arms/Service. (b) Subjects contributing to an ocers employability in the service. (c) Residual Service of the ocer from the point of view of utility of his education to the service.

(d) Ocers who have obtained admission in recognised Universities (d) The maximum period of study leave will be up to 24 months. or Institutions will be preferred. It may be extended by a period of (e) Ocers who have been away two months annual leave (if not al- from regimental duties for the last ready availed) of the year in which two years after specialised courses or

349 post graduate courses will be given stated in the writ petition, that tow lower priority. weeks Computer Course in Jodh(f) Ocers with a good career pur University was organised by the Army Authorities. prole will be given preference. (g) Battle casualties and disabled ocers who have limited scope for furthering their career will be given preference. The High Court after stating the law laid down by this Court in various decisions including Maneka Gandhi v. Union of India and others (AIR 1978 SC 597), Ajay Hasia v. Khallid Mujib Sehravardi and others (AIR 1981 SC 487), R.D. others (AIR 1979 SC 1628), Union of India and another etc. Army Order is not based on reasonable classication and denial of study leave to Junior Commissioned Ocers, Non-Commissioned Ocers and other ranks is not only irrational and arbitrary and the classication is not founded on an intelligible dierent but the same also has no rational relation with the object sought to be achieved. According to High Court, benet of study leave must be made applicable equally to all. The Army authorities have given reasons for not making available the benet of study leave to the other categories of ocers except Commissioned Ocers. It has been categorically stated that for ocers of other rank, there are other institutions where courses are conducted for these categories of personnel and by sending them for these courses, proper care is taken to ensure efciency in the armed forces. In fact, the petitioner has admitted, as It has also been stated in the counter that there cannot be any dispute that character and duties of Junior Commissioned Ocers and NonCommissioned Ocers are dierent as compared to that of regular Commissioned ocers. If the competent authority thought it r and proper that case for study leave for Commissioned Ocers should be considered and this benet should not be given to other categories of ocers, as for this category Army Authorities take adequate care for training them in their own institutions or outside, it cannot be said that impugned Order No.11 of 1987 is arbitrary or irrational. The object as stated in the counter, of granting study leave is to enhance the knowledge of Commissioned Ocers who have an important role to play not only to maintain discipline but also for performing their duties as Commissioned Ofcers. Therefore, it cannot be said that Army Order No.11 of 1987 was not founded on intelligible dierentia and it has no relation with the object sought to be achieved and we hold that the Order in question is not violative of Article 14 of the Constitution. For the reasons stated above, we nd merit in the appeal and accordingly it is allowed by setting aside the impugned order. Costs on the parties.

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Union of India v. Hav Clerk SC Bagari 1999

Chapter 29

Union Of India v. Himmat Singh Chahar 1999

Union Of India & Ors v. Himmat Singh Chahar on 12 May, 1999 Author: Pattanaik Bench: G.B.Pattanaik, K.T.Thomas PETITIONER: UNION OF INDIA & ORS. v. RESPONDENT: HIMMAT SINGH CHAHAR DATE 12/05/1999 BENCH: G.B.Pattanaik, K.T.Thomas JUDGMENT: PATTANAIK,J. The Union of India in this appeal has challenged the judgment dated 12.11.1993, of the Division Bench of Bombay High Court in Criminal Writ Petition No. 1511 of 92. The respondent Himmat Singh Chahar, who was serving as a petty High Court assailing the order passed against him in the Court Martial Proceedings and the High Court by OF JUDGMENT: the impugned judgment quashed the said order in the Court Martial Proceeding. In the Court Martial the respondent was found guilty of oence under Section 354 and was sentenced to imprisonment for 9 months, and his services were terminated. Facts culminating in the aforesaid order of the High Court may be briey stated as under. The respondent had joined the Indian Navy on 24.6.78 and in November 1990 he was a petty ocer (Telegraphist) in the submarine and was thus away from his quarters on the shore. On 28.11.1990 one R.K. Sharma, another ocer belonging to Navy came with his wife Mrs. Nirmala Sharma and having failed in his attempt to get any vacant quarters moved into Quarter No. 3B and shared the same with the family members of the respondent. On 3.12.90 said respondent took permission from his authorities to leave submarine and come to the shore for taking his family members to the hos-

352

Union Of India v. Himmat Singh Chahar 1999 tion 163(1) of the Act and the Chief of the Naval Sta though sustained the conviction but reduced the punishment of imprisonment for a term of 9 calendar months. The punishment of removal from service, however, was maintained. The respondent then moved the Central Government for re-consideration of the matter. But the Central Government having conrmed the decision of the Chief of Naval Sta the respondent moved the High Court by way of a Criminal Writ Petition. By the impugned judgment the High Court of Bombay considered the evidence of Mrs. Nirmala Sharma and by way of sifting her evidence came to hold :After a meticulous examination of the record and particularly the evidence of Nirmala that the credibility of the evidence is such that the charge cannot be said to have been brought home on the basis of this material. The High Court, therefore, ultimately came to hold that the authorities were wrong in having recorded the guilt against the respondent on the strength of material that was adduced before the Court Martial Proceedings. The Court ultimately quashed the conviction and sentence passed against the respondent in the Court Martial Proceeding ,and hence the present appeal. Mr. Ashok Bhan, learned counsel appearing for the Union of India contended with vehmence that the Court Martial Proceeding having been continued in accordance with the procedure laid down under the Navy Act and the Compe-

pital for medical check up and early morning came to his quarters and left for the hospital with his wife and two sons. It is alleged that he returned back home at about 9.00 a.m. while Mrs. Nirmala Sharma was alone and tried to outrage her modesty when said Mrs. Nirmala Sharma opened the door. Mrs. Sharma then somehow extricated from the clutches of the respondent and rushed to the house of one Mrs. Mandal whom she knew earlier and persuaded her to intimate her husband who was also away from the quarters so that he can come back. Mrs. Sharma did not intimate about the aforesaid criminal assault on her by the respondent to said Mrs. Mandal though she insisted that she will not leave her house until and unless her husband comes. Her husband came on the next day i.e. 4.12.90 to whom Mrs. Sharma narrated all that happened on the previous day whereafter a complaint was made to the superior authority against the respondent alleging that modesty of Mrs. Nirmala Sharma had been outraged by the respondent. On the basis of the complaint a Court Martial Proceeding was initiated and in the said proceeding the respondent was found guilty of the charge under Section 354 of Indian Penal Code and Section 77(2) of the Navy Act, 1957 (hereinafter referred to as an Act) and was directed to be kept under imprisonment for the term of 24 calendar months and be dismissed from the Naval services. This order was of 16th May, 1991. Against the aforesaid order the respondent moved the Chief of the Naval Sta under Sec-

353 tent Authority on the basis of the evidence of Mrs. Nirmala Sharma having found the respondent guilty of charge under Section 354 and punishing him thereunder, the High Court mis-directed itself in exercise of its jurisdiction under Article 226 of the Constitution to re-appreciate the evidence and in coming to the conclusion that the Authorities committed error in recording the nding of guilt against the respondent on the basis of the evidence of Mrs. Nirmala Sharma. According to Mr. Bhan, the learned counsel, though a judicial review against the order of the Competent Authority in the Court Martial Proceeding is available but the said judicial review could not clothe the High Court with the jurisdiction to re-appreciate the evidence and substitute the ndings of the Court Martial Proceedings by its own. According to Mr. Bhan unless the Court Martial Proceeding is found to have contravened any mandatory provisions of the Act or Rules or can be said to be in violation of the principles of natural justice or can be said to be without jurisdiction, it would be, impermissible for the High Court to interfere with the conclusion on the ground of suciency of evidence. In support of this contention reliance has been placed on the recent decision of this Court in the case of Union of India & Ors. v. Major A. Hussain - Judgment Today 1997 (9) S.C. 676. Mr. Uday U. Lalit, learned counsel appearing for the respondent on the other hand contended that it is no doubt true that the High Court would not be justied in interfering with the ndings of the Authority in Court Martial Proceeding by appreciation of evidence ordinarily but if the evidence is of such nature that no reasonable man can come to the conclusion that an oence under Section 354 of the Indian Penal Code has been committed then certainly the Court would be justied in interfering with the ndings arrived at by the Authorities in the Court Martial Proceedings and judged from that stand point there has been no inrmity with the impugned judgment of the High Court. In view of the rival submissions at the Bar the short question that arises for consideration is what would be the extent of the jurisdiction in exercising power under Article 226 of the Constitution over the ndings of the Authority in Court Martial Proceeding? The Defence personnel serving in Army, Navy or Air force when commit any oence are dealt with by the special provisions contained in the Army Act or the Navy Act or the Air Force Act and not by the normal Procedure Code. The said Navy Act is a complete code by itself and prescribes the procedure to be followed in case it is decided that an ocer should be tried by Court Martial. The Act also provides sucient safeguard by way of further appeal to the Chief of the Sta and then ultimately to the Union Government. Since the entire procedure is provided in the Act itself and the Act also provides for a further consideration by the Chief of the Naval Sta and then by the Union Government then ordinarily there should be a nality to the ndings arrived

354

Union Of India v. Himmat Singh Chahar 1999 order of an inferior Tribunal. This being the parameter for exercise of power of judicial review against the ndings of a Competent Authority in a Court Martial Proceeding, and applying the same to the impugned judgment of the High Court we have no hesitation to come to the conclusion that the High Court overstepped its jurisdiction in trying to re-appreciate the evidence of Mrs. Nirmala Sharma and in coming to the conclusion that her evidence is not credible enough to give a nding of guilt of the respondent of a charge under Section 354. We have also perused the statement of Mrs. Nirmala Sharma and the conclusion becomes inescapable on the basis of the said statement of Mrs. Nirmala Sharma that the respondent has been rightly found to have committed oence under Section 354 by the Authorities in the Court Martial Proceedings. In the aforesaid premises, we set aside the impugned judgment of the Bombay High Court and dismiss the Criminal Writ Petition led by the respondent and arm the ultimate order passed by the Competent Authority in the Court Martial Proceeding and this appeal is allowed.

at by the Competent Authority in the Court Martial Proceeding. It is of course true that notwithstanding the nality attached to the orders of the Competent Authority in the Court Martial Proceeding the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of nding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for nding out that whether there has been violation of the principles of natural justice which vitiates the entire proceeding or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act. The said power of judicial review cannot be a power of an Appellate Authority permitting the High Court to reappreciate the evidence and in coming to a conclusion that the evidence is insucient for the conclusion arrived at by the Competent Authorities in Court Martial Proceedings. At any rate it cannot be higher than the jurisdiction of the High Court exercised under Article 227 against an

Chapter 30

Union of India v. Sadha Singh 1999

Union of India And Others v. Sadha Singh on 25 October, 1999 Author: Shah Bench: K.T.Thomas, M.B.Shah PETITIONER: UNION OF INDIA AND OTHERS v. RESPONDENT: SADHA SINGH DATE 25/10/1999 BENCH: K.T.Thomas, M.B.Shah JUDGMENT: Shah,J. Leave Granted. OF JUDGMENT: prisonment and dismissed from service by the General Court Martial after being tried for the oence under Section 302 I.P.C. and under Section 69 of the Army Act, 1950. He preferred a writ petition in the High Court for his immediate release from the imprisonment on the ground that he has undergone imprisonment exceeding 14 years. The High Court arrived at the conclusion that in view of the decision in Ajit Kumar etc. v. Union of India, 1987 Supp. SCC 493 the respondent would be entitled to remissions earned in the jail and thereby respondent spent total period of 15 years 8 months and 29 days of imprisonment which obviously exceeded 14 years. The Court, therefore, directed immediate release of the respondent. That order is challenged by ling this appeal.

This appeal is led against the judgment and order dated 22.9.1998 passed by the High Court of Punjab It has been pointed out by the & Haryana at Chandigarh in Crim- learned counsel for the appellant that inal Writ Petition No.1752 of 1997 respondent has not undergone actual led by the respondent. imprisonment for 14 years. Before Respondent was awarded life im- the High Court, it was admitted that

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Union of India v. Sadha Singh 1999 cial or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The Court observed that broadly speaking, the said Section consists of three components (i) the Procedure Code generally governs matters covered by it; (ii) if a special or local law exists covering a certain area, such law will be saved and will prevail over the provisions in the Code (The short-sentencing measures and remission schemes promulgated by the various States are special and local laws); and (iii) if there is a specic provision to the contrary, then that will over-ride the special or local law. After considering the submissions and decisions cited by the parties, the Court held thus:-

respondent had spent 11 years and 1 month in actual custody, 1 year 7 months and 29 days in pre-trial custody and has earned 4 years remission in the jail. It is, therefore, submitted that the order passed by the High Court is, on the face of it, against the provision of Section 433A Cr.P.C. and its interpretation given by this Court in the case of Maru Ram. v. Union of India & Anr., (1981) 1 S.C.R. 1196. A Constitution Bench of this Court in Maru Rams case (Supra) held that Section 433A, Cr.P.C. overrides all other laws which reduce or remit the term of life sentence and mandates that minimum of 14 years of actual imprisonment should be undergone by convict where a sentence of life is imposed for an offence for which death is one of the punishments provided by law and remissions vest no right to release when sentence is for life imprisonment. The Court also reiterated that imprisonment for life lasts until the last breath and whatever be the length of remission earned, the prisoner can claim release only if the remaining sentence is remitted by the Government. The Court further negatived the contention that Section 5 of Criminal Procedure Code saves all remissions, short-sentencing schemes as special and local laws and, therefore, they must prevail over the Code including Section 433A. For that purpose, Section 5 was referred to which is as under:-

The Criminal Procedure Code is a general Code. The remission rules are special laws but Section 433A is a specic, explicit, denite provisions dealing with a particular situation or narrow class of cases, as distinguished from the general run of cases covered by Section 432 Cr.P.C. Section 433A picks out of a mass of imprisonment cases a specic class of life imprisonment cases and subjects it explicity to a particularised treatment. It follows that Section 433A applies in preference to any special or local law because Section 5 expressly declares that specic provisions, if any, to the contrary will preNothing contained in this Code vail over any special or local law. shall, in the absence of a specic pro- We have said enough to make the vision to the contrary, aect any spe- point that specic is specic enough

357 and even though special to specic is near allied and thin partition do their bounds divide the two are dierent, Section 433A escapes the exclusion of Section 5. In the present case, respondent was convicted under Section 69 of the Army Act, 1950 for the oence of murder. It is true that Army act is a special act inter alia providing for investigation, trial and punishment for the oences mentioned therein by a special procedure. Section 177 empowers the Central Government to make rules in respect of prisons and prisoners. Sections 179 to 190 provide for pardon, remissions and suspension of the sentence. There is no specic provision similar to Section 433A or contrary to it. Hence, Section 433A would operate in the eld and a prisoner, who is undergoing sentence of imprisonment for life and is convicted for an oence for which death is one of the punishments provided by law or where a sentence of death imposed on a person has been commuted under Section 433(1) Cr.P.C. to imprisonment for life, has to serve at least 14 years of imprisonment excluding remissions earned in the jail. that case, this Court held that in view of the provisions in the Army Act, which is a special enactment containing elaborate procedure for trial of the persons covered therein, prisoners, who have been convicted and sentenced by the General Court Martial under the Army Act are not entitled to get benet of set-o under Section 428 of the Code. In the said case, the Court considered Section 167 of the Army Act, which provides that the term of sentence imposed by a Court Martial shall be reckoned to commence on the day on which the original proceedings were signed by the Presiding Ocer or by the Ocer holding the Court Martial as the case may be. In view of this specic provision, the Court held that benet of Section 428 cannot be claimed by the person convicted under the provisions of Army Act. In our view, the said decision will have no bearing on the applicability of Section 433A Cr.P.C., as in the Army Act there is no specic or contrary provision covering the same area. Section 433A, Cr.P.C. is a special provision applicable to all the convicts, who are undergoing imprisonment for life as provided thereunder. For such convicts, it puts an embargo for reduction of sentence below 14 years of actual imprisonment. We would also mention that after the decision in Ajit Kumar (Supra), Army Act is amended (by Act

However, learned counsel for the respondent submitted that in the case of Ajit Kumar (Supra), this Court dealt with a similar question and held that prisoners, who have been convicted and sentenced by the No.37 of 1992) and Section 169A General Court Martial under the is added, which is similar to Section Army Act and who have been lodged in civil prison, were not entitled to 428 of Criminal Procedure Code. the benet of set-o provided under In view of the above, as the respondent has not completed 14 years Section 428 Cr.P.C. In

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of actual imprisonment, the order The appeal is allowed accordpassed by the High Court is quashed ingly. and set- aside.

Chapter 31

Union Of India v. Charanjit S. Gill 2000

Union Of India & Anr v. Charanjit S. Gill & Ors on 24 April, 2000 Author: Sethi Bench: G Pattanaik, R Sethi, S V Patil. Bench of the High Court set aside the order of the Trial Court and the entire Court Martial proceedings conducted against the respondent No.1. The Bench, however, observed that CASE NO.: the quashing of the proceedings of Special Leave Petition (civil) the GCM will not prevent the au7347 of 1999 thorities concerned to initiate fresh PETITIONER: court martial proceedings if they are so advised in accordance with law UNION OF INDIA & ANR. and also in the light of the judgment v. delivered. Feeling aggrieved by the RESPONDENT: aforesaid judgment the present apCHARANJIT S. GILL & ORS. peal has been led with a prayer for DATE OF JUDGMENT: setting aside the impugned judgment and upholding the order of the GCM 24/04/2000 as well as the learned Single Judge. BENCH: The relevant and almost admitG.B. Pattanaik, R.P. Sethi & ted facts for determining the conShivaraj V. Patil. troversy in this appeal are that the JUDGMENT: rst respondent joined the Indian SETHI, J. Army as a Commissioned Ocer in Leave granted. Finding that the 1971 and was promoted to the rank Judge Advocate was lower in rank of Major in 1984. He was posted to the accused facing trial before a at Fort William, Calcutta in April, General Court Martial (hereinafter 1990. While attached with 235 IWT referred to as GCM), the Division company, Engineers, the respondent

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Union Of India v. Charanjit S. Gill 2000 thority. Aggrieved by the order of conviction and sentence passed by the GCM, the respondent No.1 led writ petition being CO No.7102(W) of 1992 in the High Court at Calcutta praying therein for quashing orders dated 23.12.1991, 10.2.1992, 2.5.1992 and 19.5.1992. At the time of admission of the writ petition a learned Single Judge of the High Court passed an interim order on 29th May, 1992 directing the appellants not to conrm the impugned order of dismissal and not to take any steps against respondent No.1, without the leave of the Court. The interim order was, however, vacated by the learned Single Judge on 16.12.1996 allowing the Conrming Authority to complete the process of conrmation and passing appropriate orders. Consequently, the GCM proceedings were conrmed on 17.12.1996 and the respondent No.1 was dismissed from service on 18.12.1996. The writ petition led by the rst respondent was dismissed by the learned Single Judge on 3rd July, 1997. Feeling aggrieved by the judgment of the learned Single Judge the respondent No.1 preferred appeal being MAT No.2181/97 before the Division Bench which was allowed vide the order impugned in this appeal. In his writ petition the respondent No.1 is stated to have alleged that in the year 1987-88 when he was posted as Garrison Engineer in Jammu & Kashmir State under the Northern Command, he had pointed out to the higher authorities some embezzlement instances in-

No.1 was alleged to have absented himself without leave on four occasions which was an oence under Section 39(1) of the Army Act. He was also charged under Section 63 of the Army Act for violation of good order and military discipline. A GCM was convened by the General Ocer Commanding (GOC), Bengal Area by his order dated 23rd December, 1991. The court martial comprised of Col.Rabinder Bahadur Singh as Presiding Ocer and Col. Kunjachen Puthenveetil Sebastian, Col. Prakash Nambiar, Col. Mahitosh Deb and Major Kadam Netaji Kesharuo as Members. Capt. Vashishta Arun Kumar, Dy. Assistant Judge Advocate General was appointed as Judge Advocate in the court martial proceedings. The respondent No.1 was found guilty of four out of ve charges by the GCM and was sentenced to forfeit six months service for the purposes of promotion. The order of conviction and sentence was, however, made subject to the conrmation by the Conrming Authority to whom the proceedings were transmitted by the GCM in terms of Section 153 of the Army Act. The Conrming Authority felt that the sentence awarded to the respondent No.1 by the GCM was grossly inadequate and inappropriate which required review. The order of the Conrming Authority dated 2.5.1992 was conveyed to the GCM which on 19.5.1992 upon, re-consideration revoked the earlier sentence and passed a fresh order of sentence of dismissing the respondent No.1 from service. This order was also made subject to conrmation by the Conrming Au-

361 volving Rs.22.49 lacs in which Major S.K. Datta and Col. S.C. Gulati were allegedly involved. He alleged that because of his reporting the case of embezzlement he incurred animosity of the persons in the higher echelons of the Army. He submitted that in the year 1990 he had made a direct complaint to the Chief of the Army Sta, Army Headquarters, New Delhi with regard to the aforesaid embezzlement which, according to him, generated further feelings of animosity and ill-will against him. He was attached to 235 IWT Company on 14th September, 1990 and allegedly not given any duty after attachment to the said unit. On 22nd October, 1990, the Commanding Ofcer of 235 IWT Company called upon the respondent No.1 to produce the evidence by 25th October, 1990 in connection with his allegations of embezzlement. At that time the Company to which he was attached was stationed at Alambazar, near Dakshineswar, just outside Calcutta and his family was residing at Fort Williams, Calcutta. He was served with a chargesheet on 18th November, 1991 signed by the Commanding Ocer, 121, Infantry Battalian (TA) which was endorsed by the General Ocer Commanding, Bengal Area. Though the respondent No.1 was posted to 235 IWT Company vide order dated 12th September, 1990 he was attached on 23rd March, 1991 under the provisions of Army Instructions 30 of 1986 to 121 Infantry Battalion (TA) till nalisation of the disciplinary proceedings which had been initiated against him. The charge-sheet dated 18th November, 1991 disclosed the commission of oences punishable contrary to Sections 39(a) and 63 of the Army Act. The respondent No.1 in his petition had prayed for quashing and setting aside of orders dated 23rd December, 1991 convening the GCM, order dated 10th February, 1992 nding the respondent No.1 guilty and imposition of the sentence by GCM, order dated 2nd May, 1992 exercising the revisional jurisdiction by the GOC, BA and order dated 19th May, 1992 revising the initial sentence and dismissing the respondent No.1 from service. The grounds of challenging the aforesaid orders were as under: 1. The composition of the GCM, as was determined by the Convening Order dated 23rd December, 1991 was bad in law because Captain Arun Kumar Vashistha was not qualied to be appointed as a Judge Advocate in the said GCM. This ground of challenge is based on two counts, rstly because no ocer of a rank inferior to the accused can be appointed as a Judge - Advocate in GCM and secondly the participation of the Judge Advocate in the proceedings held on 18th and 19th May, 1982 upon revision was bad since he was not entitled to take part in the proceedings after 10th February, 1992 when the GCM proceedings had originally stood concluded. 2. GOC, BA had no jurisdiction to either convene the GCM vide his order dated 23rd December, 1991 or to pass the order dated 2nd May, 1992, as he was neither a properly appointed nor a properly designated Convening Authority for the pur-

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Union Of India v. Charanjit S. Gill 2000 was under the control of GOC, BA, that by itself did not make GOC, BA the duly appointed convening authority for convening a GCM. Reliance was placed upon the contents of warrant A-1 appointing GOC, BA and GOC-in-C as respective convening authorities.

poses of convening a GCM nor could he be deemed considered to be a legally and validly appointed conforming authority for the purposes of exercising the power under Section 160 of the Army Act. In either event, his act of convening the GCM was illegal and therefore the proceedings of the GCM on that ground were void ab initio. Similarly since he did not have any power to act a conrming authority, he had no jurisdiction to exercise any power under section 160 of the Army Act and order revision of the sentence. Reliance was placed upon Regulation 472 of the Regulations for the Army in support of this contention.

5. The sentence of dismissal for a minor oence like being absent without leave, and for committing an offence under section 63 of the Army Act was highly and grossly disproportionate to the gravity of the offence. Even if the proceedings of the GCM and the nding of guilty was to be upheld by this court, the initial sentence of forfeiture of six months of 3. The order dated 2nd May, service for the purpose of promotion 1992 was bad in law because while was a reasonable punishment in the exercising revisional jurisdiction un- facts and circumstances of this case. der Section 160 of the Army Act, 6. Distinction has to be drawn the GOC, BA not only expressed his between absent from a place and views and opinion about the merits absence from duty because in the of the case but the order amounted facts and circumstances in which the to almost a direction upon the GCM, petitioner was placed, the petitioner and the GCM comprising, as it were, was not allocated or entrusted with of the ocers subordinate to GOC, any duties and therefore if he abBA had no option but to revise the sented from a place, without there sentence, as was desired by GOC, being any duty that he was to perBA. form, Section 39 of the Army Act 4. GOC, BA was also not an appropriate Convening Authority for the purposes of convening a GCM as the petitioner was not serving under him. Since the petitioner was serving in the Head Quarter, Eastern Command, it was only GOC-inC who could be considered to be the appropriate, convening authority in respect of the petitioner for convening a GCM. Merely because the petitioner was attached to a unit which could not be attracted in his case and therefore he could not be held guilty of the charges levelled against him. 7. The appropriate Conrming Authority have been prescribed in Regulation 472 and even though this Regulation is not statutory in character and has not been issued under Section 192 of the Army Act, yet it amounting to an executive instruction has the force of law and thus supersedes the warrants issued by the

363 Central Government under Section 164 of the Army Act. The contention is that the authorities prescribed in Regulation 472 alone are competent to act as conrming or convening authorities and that the authorities appointed under the warrants by the Central Government in exercise of the powers vesting in its under Section 154 have no jurisdiction to act as such. 8. The order dated 17th December, 1996 is bad because it was passed without aording the petitioner an opportunity of submitting a pre-conrmation representation, as was directed by this court on 16th December, 1996. None of the grounds found favour with the learned Single Judge who after hearing dismissed the writ petition. The respondent No.1 was, however, given two weeks time to vacate the accommodation occupied by him upon his giving an undertaking. The appeal led against the judgment of the learned Single Judge was allowed holding: However, without deciding any other point we are of the view that a Judge Advocate being lower in rank to an accused ocer should not be able to take part in the general court martial proceedings for the above reason. Mr.Rawal, the learned Additional Solicitor General appearing for the appellants has vehemently argued that as the Judge Advocate is only a Legal Advisor and not a member of the Court Martial, his rank is not material for being appointed as such to assist the GCM. It is further contended that under the Army Act, Rules and Regulations made thereunder, there was no obligation for the appellants to appoint a Judge Advocate who should have been senior in rank to the accused on the analogy that the members of the court martial who tried the accused are required to be of the same or higher rank to the accused ocers. According to him there are separate provisions under the Act, Rules and Regulations for members and Judge Advocate at GCM laying down their eligibility, disqualications, duties, etc. Relying upon Note 2 attached to Rule 102, the learned counsel has submitted that the disqualication for being a Judge Advocate in a court martial is referable to Rule 39(2) alone which cannot be stretched further to Rule 40(2) of the Rules. It is contended that the Division Bench of the High Court has not properly interpreted the provisions of Sections 113 and 129 of the Act and Rules 39, 40 and 102 of the Army Rules. Appearing for the respondent No.1 Mr.Ranjit Kumar, Advocate has submitted that the combined reading of Rules 39, 40 and 102 makes it clear that if the Judge Advocate is lower in rank than the accused facing the trial in GCM, the proceedings are liable to be quashed. According to him the provisions of Rule 39 read with Rules 40 and 102 of the Army Rules leave no doubt that the Judge Advocate appointed for the trial of an ocer by the GCM should be a rank not lower than that of the Ocer facing the trial. He has submitted that though, technically the Judge Advocate is an Advisor to the prosecution,

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Union Of India v. Charanjit S. Gill 2000 joining the Armed Forces a person does not cease to be a citizen so as to be wholly deprived of his rights under the Constitution. While dismissing the writ petitions in that case, this Court noticed with anguish and concern and observed: Reluctance of the apex court more concerned with civil law to interfere with the internal aairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering Armed Forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Batra v. Delhi Administration [1979 (1) SCR 394] that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizens not entitled to the benets of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the libertyoriented constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by a judge of unquestioned integrity and wholly unbiased. A marked dierence in the procedure

yet in practice he wields a great inuence upon the verdict of the court in view of the powers conferred upon him under the Act and the Rules. He has specically referred to the provisions of Rules 60, 61, 62 and 105 of the Rules to emphasise the importance of the role played by the Judge Advocate during the trial in a court martial. In order to appreciate the rival contentions of the learned counsel for the parties it is necessary to take note of some of the relevant provisions of the Act, the Rules and the Regulations made thereunder. The Act was enacted on 20th May, 1950 and enforced w.e.f. 22nd July, 1950 to consolidate and amend the law relating to the Government of the regular Army keeping in view the report of the Select Committee appointed for the purpose. Prior to the enactment of Army Act, 1950, there existed the Indian Army Act, 1911 made and applied by the British Rulers. Feeling that some of the provisions of the 1911 Act had become out of date and insucient for modern requirements after independence, a need for revision was felt to have become imperative for obvious reasons. However, the scheme of the Act by and large remained the same as was incorporated in Army Act, 1911. The Act has been found to be suering from various draw-backs as were pointed out by this Court in Lt.Col. Prithi Pal Singh Bedi v. Union of India & Ors. [1982 (3) SCC 140]. This Court hoped and stressed that changes all over the English speaking democracies would awaken the Parliament to the changed system as regards the Armed Forces. Merely by

365 for trial of an oence by the criminal court and the court martial is apt to generate dissatisfaction arising out of this dierential treatment. Even though it is pointed out that the procedure of trial by court martial is almost analogous to the procedure of trial in the ordinary criminal courts, we must recall that Justice William ODouglas observed: [T]that civil trial is held in an atmosphere conducive to the protection of individual rights while a military trial is marked by the age-old manifest destiny of retributive justice. Very expression court martial generally strikes terror in the heart of the person to be tried by it. And somehow or the other the trial is looked upon with disfavour. In Reid v. Covert 1 L Ed 2d 1148: 354 US 1 (1957)] Justice Black observed at page 1174 as under: Court martial are typically ad hoc bodies appointed by a military ocer from among his subordinates. They have always been subject to varying degrees of command inuence. In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court marital must look to the appointing ocer for promotions, advantageous assignments and eciency ratings - in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges. Absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy of otherwise of punishment is a glaring lacuna in a country where a counterpart civilian convict can prefer appeal after appeal to hierarchy of courts. Submission that full review of nding and/or sentence in conrmation proceedings under Section 153 is provided for is poor solace. A hierarchy of courts with appellate powers each having its own power of judicial review has of course been found to be counter productive but the converse is equally distressing in that there is not even a single judicial review. With the expanding horizons of fair play in action even in administrative decision, the universal declaration of human rights and retributive justice being relegated to the uncivilised days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil personnel. Army is always on alert for repelling external aggression and suppressing internal disorder so that the peace-loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of this order. And it must be realised that an appeal from Ceaser to Ceasers wife - conrmation proceedings under Section 153 - has been condemned as injudicious and merely a lip sympathy to form. The core question is whether

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Union Of India v. Charanjit S. Gill 2000 the Rolls, such of the Lords, Commissioners of Justiciary in Scotland as the Lord Chief Justice generally may nominate, such Judges of the Supreme Court of the Northern Ireland as the Lord Chief Justice of Northern Ireland may nominate and such of the persons of legal experience as the Lord Chancellor may appoint. The court martial appellate court has power to determine any question necessary to be determined in order to do justice in the case before the court and may authorise a new trial where the conviction is quashed in the light of fresh evidence. The court has also power inter alia, to order production of documents or exhibits connected with the proceedings, order the attendance of witnesses, receive evidence, obtain reports and the like from the members of the court martial or the person who acted as Judge Advocate, order a reference of any question to a Special Commissioner for Enquiry and appoint a person with special expert knowledge to act as an assessor (Halsburys Laws of England, 4th Edn., paras 954-955 pp. 45859). Frankly the appellate court has power to full judicial review unhampered by any procedural claptrap. Turning towards the U.S.A., a refernece to Uniform Code of Military Justice Act, 1950, would be instructive. A provision has been made for setting up of a court of military appeals. The Act contained many procedural reforms and due process safeguards not then guaranteed in civil courts. To cite one example, the right to legally qualied coun-

at least there should be one appeal to a body composed of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishment being commensurate with the gravity of the offence charged. Judicial approach by people well-versed in objective analysis of evidence trained by experience to look at facts and law objectively, fair play and justice cannot always be sacriced at the altar of military discipline. Unjust decision would be subversive of discipline. There must be a judicious admixture of both. An nothing revolutionary is being suggested. Our Army Act was more or less modelled on the U.K. Act. Three decades of its working with winds of change blowing over the world necessitates a second look so as to bring in it conformity with liberty-oriented constitution and rule of law which is the uniting and integrating force in our political society. Even U.K. has taken a step of far-reaching importance for rehabilitating the condence of the Royal Forces in respect of judicial review of decisions of court martial. U.K. had enacted a Court Martial (Appeal) Act of 1951 and it has been extensively amended in Court Martial (appeals) Act, 1968. Merely providing an appeal by itself may not be very reassuring but the personnel of the appellate court must inspire condence. The court martial appellate court consists of the ex ocio and ordinary judges of the Court of Appeal, such of the judges of the Queens Bench Division as the Lord Chief Justice may nominate after consultation with the Master of

367 sel was made mandatory in general court martial cases 13 years before the decision of the Supreme Court in Gideon v. Waiwright (372 US 335 1963)). Between 1950 and 1968 when the Administration of Justice Act, 1968 was introduced, many advances were made in the administration of justice by civil courts but they were not reected in military court proceedings. To correct these deciencies the Congress enacted Military Justice Act, 1968, the salient features of which are: (1) a right to legally qualied counsel guaranteed to an accused before any special court martial; (2) a military judge can in certain circumstances conduct the trial alone and the accused in such a situation is given the option after learning the identity of the military judge of requesting for the trial by the judge alone. A ban has been imposed on command interference with military justice, etc. Ours is still an antiquated system. The wind of change blowing over the country has not permeated the close and sacrosanct precincts of the Army. if in civil courts the universally accepted dictum is that justice must not only be done but it must seem to be done, the same holds good with all the greater vigour in case of court martial where the judge and the accused don the same dress, have the same mental discipline, have a strong hierarchical subjugation and a feeling of bias in such circumstances is irremovable. We, therefore, hope and believe that the changes all over the English-speaking democracies will awaken our Parliament to the changed value system. In this behalf, we would like to draw pointed attention of the Government of the glaring anomaly that courts martial do not even write a brief reasoned order in support of their conclusion, even in cases in which they impose the death sentence. This must be remedied in order to ensure that a disciplined and dedicated Indian Army may not nurse a grievance that the substance of justice and fair play is denied to it. Despite lapse of about two decades neither the Parliament nor the Central Government appears to have realised their constitutional obligations, as were expected by this Court, except amending Rule 62 providing that after recording the nding in each charge the Court shall give brief reasons in support thereof. The Judge Advocate has been obliged to record or caused to be recorded brief reasons in the proceedings. Even today the law relating to Armed Forces remains static which requires to be changed keeping in view the observations made by this Court in Prithi Pal Singh Bedis case (supra), the constitutional mandate and the changes eected by other democratic countries. The time has come to allay the apprehension of all concerned that the system of trial by court martial was not the arch type of summary and arbitrary proceedings. In the absence of eective steps taken by the Parliament and the Central Government, it is the constitutional obligation of the courts in the country to protect and safeguard the constitutional rights of all citizens including the persons en-

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rolled in the Armed Forces to the extent permissible under law by not forgetting the paramount need of maintaining the discipline in the Armed Forces of the country. The court martials under the Act are not courts in the strict sense of the term as understood in relation to implementation of the civil laws. The proceedings before court martial are more administrative in nature and of the executive type. Such courts under the Act, deal with two types of offences, namely, (1) such acts and omissions which are peculiar to the Armed Forces regarding which no punishment is provided under the ordinary law of the land and (2) a class of oences punishable under the Indian Penal Code or any other legislation passed by the Parliament. Chapter VI of the Act deals with the oences. Sections 34 to 68 relate to the oences of the rst description noted hereinabove and Section 69 with civil oences which means the oence triable by an ordinary criminal court. Chapter VII provides for punishments which can be inicted in respect of oences committed by persons subject to the Act and convicted by court martial, according to the scale provided therein. Chapter X deals with court martials. Section 108 provides that for the purposes of the Act there shall be four kinds of court martials, that is to say,

Court martials can be convened by persons and authorities as specied in Sections 109, 110, 112 and 118 of the Act. The procedure of court martials is detailed in Chapter XI of the Act. Section 129 mandates that every general court martial shall be attended by a judge advocate, who shall be either an ocer belonging to the department of Judge Advocate-General or if no such ocer is available, an ocer approved by the Judge Advocate General or any of his deputies. The accused has a right to challenge the name of any ocer composing the court martial which obviously means that no such objection can be raised regarding the appointment of the Judge Advocate. No ndings or sentence of a general, district or summary general court martial shall be valid except so far as it may be conrmed as provided under the Act. Under Section 158, the conrming authority has the power to mitigate or remit the punishment awarded by the court martial or commute that punishment for any punishment or punishments lower in the scales laid down in Section 71. Under Section 160 the conrming authority has the power to direct a revision of the nding of a court martial and on such revision, the court, if so directed by the conrming authority, may take additional evidence. Any person, subject to the Act, who considers himself aggrieved by any or(a) general court martial; der passed by the court martial can (b) district court martial; present a petition to the ocer or (c) summary general court mar- authority empowered to conrm any tial; and nding or sentence of such court martial and in that case the conrming (d) summary court martial. authority may take such steps as may

369 be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceedings to which the order relates. There is no provision for preferring an appeal against the ndings of the court martial. same oence; or (d) is the commanding ocer of the accused, or of the corps to which the accused belongs; or (e) has a personal interest in the case.

(3) The provost-marshal or assistant provost-marshal is disqualied In exercise of the powers confrom serving on a general court marferred by Section 191 of the Act the tial or district court martial. Central Government have framed the Rule 40 provides: Rules called the Army Rules, 1954. Chapter V of the Rules deals with 40. Composition of General the investigation of charges and trial Court Martial (1) A general court by court martial. Court Martials martial shall be composed, as far as are convened in terms of Rule 37. seems to the convening ocer practiRule 39 prescribes ineligibility and cable, of ocers of dierent corps or disqualication of ocers for court departments, and in no case exclumartial. It reads: sive of ocers of the corps or departIneligibility and disqualication ment to which the accused belongs. of ocers for court martial (1) An (2) The members of a court marocer is not eligible for serving on a tial for the trial of an ocer shall court martial if he is not subject to be of a rank not lower than that the Act. of the ocer unless, in the opinion (2) An ocer is disqualied for of the convening ocer, ocers of serving on a general or district court such rank are not (having due regard to the exigencies of the public sermartial if he vice) available. Such opinion shall be (a) is an ocer who convened the recorded in the convening order. court; or (3) In no case shall an ocer be(b) is the prosecutor or a witness low the rank of captain be a member for the prosecution; or of court martial for the trial of a eld (c) investigated the charges be- ocer. fore trial, or took down the sumRule 44 provides that the order mary of evidence, or was a member convening the court and the names of a court of inquiry respecting the of the Presiding Ocer and the memmatters on which the charges against bers of the court shall be read over to the accused are founded, or was the the accused and he shall be asked as squardon, battery, company, or other required by Section 130 whether he commander, who made preliminary has any objection to being tried by inquiry into the case, or was a memany ocer sitting on the court. Such ber of a previous court martial which objection when raised is required to tried the accused in respect of the

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be disposed of in accordance with the the Act and the Rules as noticed earprovisions of Section lier, the learned counsel appearing 130. The accused before pleading for respondent No.1 has argued that to a charge, may oer a special plea in eect and practice the Judge Adto the jurisdiction of the court and if vocate is the court and the court he does so, the court shall decide it. martial is the jury for all practical If the objection regarding such plea purposes so far as the trial of the acis overruled, the court shall proceed cused is concerned. The argument with the trial and if such plea is al- may be exaggerated version of the relowed, the court is required to record ality but is not totally without subits reason and report to the conven- stance inasmuch as the powers exing authority and adjourn the pro- ercised by the Judge Advocate indiceedings (Rule 51). Rules 52, 53, 54, cate that though not forming part 55 and 56 deal with the recording of of the court martial, he is an intethe plea of guilty or not guilty. gral part thereof particularly in court In case the accused pleds not guilty, martials which cannot be conducted the trial is to commence and after the in his absence. It cannot be denied close of the case of the prosecution, that the justice dispensation system the Presiding Ocer or the Judge in the Army is based upon the sysAdvocate is required to explain to tem prevalent in the Great Britain. the accused that he may make an The position of the Judge Advocate unsworn statement orally or in writ- is by no means less than that of a ing giving his account of the subject Judge Advocate associated with a of charges against him or if he wishes court martial in that country. The he may give evidence as witness on importance of the role of the Judge oath or armation, in disproof of the Advocate in U.K. was noticed and charges against him or any person considered in R v. Linzee [1956 (3) to be charged with him at the same All E.R.]. trial. After the examination of the witnesses, the prosecutor may make a closing address and the accused or his counsel or the defending ocer, as the case may be, shall be entitled to reply. The Judge Advocate is authorised to sum up in open court the evidence and advise the court upon the law relating to the case. Rule 61 provides that the court shall deliberate on its nding in closed court in the presence of the Judge Advocate and Rule 62 provides the form, record and announcement of nding. It is true that Judge Advocate theoritically performs no function as a judge but it is equally true that he is an eective ocer 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 poReferring to various provisions of sition to sway the minds of the mem-

371 bers 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 v. Union of India [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 ndings 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 nding by word of mouth on each charge separately and the nding on each charge is to be recorded simply as a nding of guilty or of not guilty. It is also required that the sentence should be announced forthwith 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. There is no such requirement in other provisions relating to recording of ndings and sentence. Rule 66(1) proceeds 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 specic provision for recording of reasons for the recommendation to mercy. The said provisions thus negative a requirement to give reasons for its nding and sentence by the court martial and reasons are required to be recorded only in cases where the court martial makes a recommendation to mercy. In our opinion, therefore, at the stage of recording of ndings 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 conrmation of the ndings and sentence of the court martial it may be mentioned that Section 153 of the Act lays down that no nding or sentence of a general, district or summary general, court martial shall be valid except so far as it may be conrmed as provided by the Act. Section 158 lays down that the conrming authority may while conrming 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 conrming authority to revise the nding 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 conrming authority, may take additional evidence. The conrmation of the nding 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 with-

372

Union Of India v. Charanjit S. Gill 2000 has been eected, conrmation is not complete and the nding and sentence shall not be held to have been conrmed until they have been promulgated. In view of what has been noticed hereinabove, it is apparent that if a t person is not appointed as a judge advocate, the proceedings of the court martial cannot be held to be valid and its nding legally arrived at. Such an invalidity in appointing an unt person as a judge advocate is not curable under Rule 103 of the Rules. If a t person possessing requisite qualications and otherwise eligible to form part of the general court martial is appointed as a judge advocate and ultimately some invalidity is found in his appointment, the proceedings of the court martial cannot be declared invalid. A t person mentioned in Rule 103 is referable to Rules 39 and 40. It is contended by Shri Rawal, learned ASG that a person t to be appointed as judge advocate is such ocer who does not suer from any ineligibility or disqualication in terms of Rule 39 alone. It is further contended that Rule 40 does not refer to disqualications. We cannot agree with this general proposition made on behalf of the appellant inasmuch as Sub-rule (2) of Rule 40 specically provides that members of a court martial for trial of an ocer should be of a rank not lower than that of the ocer facing the trial unless such ocer is not available regarding which specic opinion is required to be recorded in the convening order. Rule 102 unambiguously

out delay be forwarded to the ocer commanding the division or brigade within which the trial was held or to the prescribed ocer; and such ocer or the Chief of the Army Sta or any ocer empowered in this behalf may, for reasons based on the merits of the case, but not any merely 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 submitted by 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 conrming ocer and in case of district court martial it is provided that the proceedings should be sent by the presiding ocer, 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 conrmation. Rule 70 lays down that upon receiving the proceedings of a general or district court martial, the conrming authority may conrm or refuse conrmation or reserve conrmation for superior authority, and the conrmation, non-conrmation, or reservation shall be entered in and form part of the proceedings. Rule 71 lays down that the charge, nding and sentence, and any recommendation to mercy shall, together with the conrmation, non-conrmation of the proceedings, be promulgated in such manner as the conrming authority may direct, and if no direction is given, according to custom of the service and until promulgation

373 provides that an ocer who is disqualied for sitting on a court martial shall be disqualied for acting as a judge advocate in a court martial. A combined reading of Rules 39, 40 and 102 suggest that an ocer who is disqualied to be a part of court martial is also disqualied from acting and sitting as a judge advocate at the court martial. It follows, therefore, that if an ocer lower in rank than the ocer facing the trial cannot become a part of the court martial, the ocer of such rank would be disqualied for acting as a judge advocate at the trial before a GCM. Accepting a plea to the contrary, would be invalidating the legal bar imposed upon the composition of the court in sub-rule (2) of Rule Arguments of the learned ASG, if analysed critically, and accepted would mean that in eect and essence no disqualication or eligibility can be assigned to any ocer in becoming a judge advocate. Stretching it further it can be argued that as Rule 40 does not refer to the ineligibility or disqualication of an ocer to be a judge advocate, even an ocer below the rank of a Captain can become a member of the court martial for the trial of a Field Ocer as bar of sub-rule (3) of Rule 40 is not applicable. Such an interpretation is uncalled for and apparently contradictory in terms. The purpose and object of prescribing the conditions of eligibility and qualication along with desirability of having members of the court martial of the rank not lower than the ocer facing the trial is obvious. The law makers and the rule framers appear to have in mind the respect and dignity of the ocer facing the trial till guilt is proved against him by not exposing him to humiliation of being subjected to trial by ocers of lower in rank. The importance of the judge advocate as noticed earlier being of a paramount nature requires that he should be such person who inspires condence and does not subject the ocer facing the trial to humiliation because the accused is also entitled to the opinion and services of the judge advocate. Availing of the services or seeking advise from a person junior in rank may apparently be not possible ultimately resulting in failure of justice. It has been argued that as ocers of the same rank or higher in rank than the ocers facing the trial in court martials are not available, an interpretation as rendered by the impugned judgment would render the holding of court martials impossible. Such an argument is to be noticed for only being rejected. Sub-rule (2) of Rule 40 itself gives a discretion to the convening ocer who is authorised to appoint a member of the court martial or judge advocate who is lower in rank than the ocers facing the trial, if he is of the opinion that ofcer of such rank is not (having due regard to the exigencies of the public service) available, subject to a further condition that such opinion is required to be recorded in the convening order. It implied, therefore, that the provisions of sub-rule (2) of Rule 40 are not mandatory because

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they give a discretion to appoint a member of the court martial or a judge advocate who is lower in rank than the ocer facing the trial under the circumstances specied. Rule 39, admittedly, has no exception and is thus mandatory.

1954 are on the pattern of Indian Army Act Rules, Army Rule 89 of Indian Army Act Rules dealt with disqualications of Judge Advocate. It also had note stating that for disqualication, see the Rule dealing with the Rule pari materia to Rule 39 of Further relying upon Note 2 men- the present Rules that is Army Rules, tioned at the foot of Rule 102 provid- 1959. ing, as to disqualication of a judge That the manual of Indian Miliadvocate CAR 39(2), the learned tary Law, 1937, published by Govt. ASG submitted that the said Note of India, Ministry of Defence (Corhaving the force of law has been fol- rected upto 1960) Reprint 1967, also lowed by the Army authorities from contains Indian Army Act, 1911 with the very beginning and thus disqual- Notes as well as the Indian Army ications of a judge advocate are Act Rules with Notes. Since this referable to only Rule 39(2) of the was 1967 reprint, in this manual even Rules. It is contended as the source Army Act, 1950 and Army Rules, of the Rules and the Note thereto is 1954 are also contained. the same, the ecacy of Note 2 canThat in the year 1978 the JAGs not be minimised. The Army author- Department compiled the Army Act ities, according & Rules in the new Manual with to the learned ASG have understood Rules 39, 40 and 102 in this context while making appointments of the judge advocate. In response to our directions an adavit has been led on behalf of the appellants with respect to: (a) the authority which had prepared the Notes appearing in Army Act, 1950 and Army Rules, 1954 (b) the year in which these Notes were incorporated in the Army Act, 1950 and Army Rules, 1954. (c) the authority which had approved these Notes to be incorporated in the Army Act and the Rules framed thereunder. stating therein: That Army Act, 1950 was enacted on the pattern of the Indian Army Act, 1911 and Army Rules, a view to make it more convenient for reference. Prior to it, as stated above, the Military Law of the country was outlined in the Manual of Military Law, 1937. The Manual contained the Indian Army Act, 1911, the Indian Army Act & Rules and explanatory notes under various Sections and Rules. The passage of time necessitated revision of the Manual and incorporation of explanatory notes under the relevant sections and clauses of the Army Act, 1950 and Army Rules, 1954. It also became necessary to include some other enactments essential to the subject, and to exclude from the Manual the repealed Indian Army Act, 1911 and the superseded Indian Army Act Rules. The Manual of Military Law containing explanatory

375 Notes under the current and opera- powers the Central Government to tive Army Act & Rules were issued make rules for the purpose of carryin 1983. ing into eect the provisions of the That as stated above, the Manual Act and Section 192 to make regulaof Military Law issued in 1983 was tions for all or any of the provisions compiled by the oce of Judge Ad- of the Act other than those specivocate General and approved by the ed in Section 191. All Rules and Govt. as evident from the preface of Regulations made under the Act are required to be published in the othe Manual. cial gazette and on such publication That the Notes to Army Act and shall have the eect as if enacted in Army Rules were appended to Inthe Act. No power is conferred upon dian Army Act, 1911 and the Inthe Central Government of issuing dian Army Act Rules and were folNotes or issuing orders which could lowed as explanatory Notes and guidhave the eect of the Rules made ance. These suitably modied and under the Act. Rules and Regulaamended were formally appended to tions or administrative instructions the relevant provisions of the Army can neither be supplemented nor subAct, 1950 and Army Rules, 1954 in stituted under any provision of the 1983 after the same were duly apAct or the Rules and Regulations proved by the Govt. That no facts framed thereunder. The administrawhich were not pleaded before court tive instructions issued or the Notes below have not been pleaded. attached to the Rules which are not However, no material has been referable to any statutory authority placed on record to show that the cannot be permitted to bring about Notes appended to the Rules were a result which may take away the duly approved by the Government. rights vested in a person governed Per contra the respondent No.1 in by the Act. The Government, howhis adavit has submitted that the ever, has the power to ll up the Notes under Sections and Rules as gaps in supplementing the rules by are found under various provisions of issuing instructions if the Rules are law compiled by the Army authori- silent on the subject provided the ties in the Manual of Military Law instructions issued are not inconsisdo not form part of the Army Act, tent with the Rules already framed. 1950 and Army Rules, 1954. The Accepting the contention of holding Rules of 1954 are stated to have been Note 2 as supplementing Rules 39 borrowed from the Indian Army Act, and 40 would amount to amending 1911 and the Rules framed thereun- and superseding statutory rules by der. It is contended that the Notes administrative instructions. When are not law passed by Parliament and Rule 39 read with Rule 40 imposes have not been vetted even by the a restriction upon the Government Ministry of Law & Justice or by the and a right in favour of the person Law Commission. It is not disputed tried by a court martial to the efthat Section 191 of the Army Act em- fect that a person lower in rank shall

376

Union Of India v. Charanjit S. Gill 2000 vised in accordance with law and also in the light of the judgment delivered by the High Court. Fears have been expressed that in case the proceedings of the court martial are quashed on the ground of the judge advocate being lower in rank than the ocer facing trial before the court marital, many judgments delivered, orders passed and actions taken by various court martials till date would be rendered illegal as according to appellants a number of court martials have already been held and conducted under the assumption of the disqualication not being referable to Rule 40(2), on the strength of Note 2 attached to Rule 102 of the Rules. In that event, it is apprehended, a ood-gate of new litigation would be opened which ultimately is likely to not only weaken the discipline in the Armed Forces but also result in great hardship to all those whose rights have already been determined. Such an apprehension is misplaced in view of de facto doctrine born out of necessity as acknowledged and approved by various pronouncements of the courts. This Court in Gokaraju Rangaraju v. State of Andhra Pradesh [1981 (3) SCC 132] applying the de facto doctrine in a case where the appointment of a judge was found to be invalid, after reference to various judgments and the observations of the constitutional experts held: A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds oce, under colour of lawful authority, though

not be a member of the court martial or be a judge advocate, the insertion of Note 2 to Rule 102 cannot be held to have the eect of a Rule or Regulation. It appears that the notes have been issued by the authorities of the Armed Forces for the guidance of the ocers connected with the implementation of the provisions of the Act and the Rules and not with the object of supplementing or superseding the statutory Rules by administrative instructions. After examining various provisions of the Act, the Rules and Regulations framed thereunder and perusing the proceedings of the court martial conducted against the respondent No.1, we are of the opinion that the judge advocate though not forming a part of the court, yet being an integral part of it is required to possess all such qualications and be free from the disqualications which relate to the appointment of an ocer to the court martial. In other words a judge advocate appointed with the court martial should not be an ocer of a rank lower than that the ocer facing the trial unless the ocer of such rank is not (having due regard to the exigencies of public service) available and the opinion regarding nonavailability is specically recorded in the convening order. As in the instant case, judge advocate was lower in rank to the accused ocer and no satisfaction/opinion in terms of subrule (2) of Rule 40 was recorded, the Division Bench of the High Court was justied in passing the impugned judgment, giving the authorities liberty to initiate fresh court martial proceedings, if any, if they are so ad-

377 his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the oce, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the oce, albeit unlawfully, have the same ecacy as judgments pronounced and acts done by a judge de jure. Such is the de factor doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his ofce. Otherwise so soon as a judge pronounces a judgment a litigation may be commended for a declaration that the judgment is void because the judge is no judge. A judges title to his oce cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a judges appointment in an appeal against his judgment is, of course, such a collateral attack. We do not agree with the submission of the learned counsel that the de facto doctrine is subject to the limitation that the defect in the title of the judge to the oce should not be one traceable to the violation of a constitutional provision. The contravention of a constitutional provision may invalidate an appointment but we are not concerned with that. We are concerned with the eect of the invalidation upon the acts done by the judge whose appointment has been invalidated. The de facto doctrine saves such acts. The de facto doctrine is not a stranger to the Constitution or to the Parliament and the Legislatures of the States. Article 71(2) of the Constitution provides that acts done by the President or Vice-President of India in the exercise and performance of the powers and duties of his oce shall not be invalidated by reason of the election of a person as President or VicePresident being declared void. So also Section 107(2) of the Representation of the People Act, 1951 (43 of 1951) provides that acts and proceedings in which a person has participated as a member of Parliament or a member of the legislature of a State shall not be invalidated by reason of the election of such person being declared to be void. There are innumerable other Parliamentary and State legislative enactments which are replete with such provisions. The twentieth amendment of the Constitution is an instance where the de facto doctrine was applied by the constituent body to remove any suspicion or taint of illegality or invalidity that may be argued to have attached itself to judgments, decrees, sentences or orders passed or made by certain District Judges appointed before 1966, otherwise than in accordance with the provision of Article

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Union Of India v. Charanjit S. Gill 2000 essary inference that the law declared by the judicial pronouncements was not thought to apply to the particular cases but may also lead to the inference that the statute-making body was mindful of the real state of the law but was acting under the inuence of excessive caution and so to silence the voices of doubting Thomases by declaring the law declared by judicial pronouncements to be applicable also to the particular cases. In Chandra Mohan case this Court had held that appointments of District Judges made otherwise than in accordance with Article 233 of the Constitution were invalid. Such appointments had been made in Uttar Pradesh and a few other States. Doubts had been cast upon the validity of the judgments, decrees etc. pronounced by those District Judges and large litigation had cropped up. It was to clear those doubts and not to alter the law that the twentieth amendment of the Constitution was made. This is clear from the statements of Objects and Reasons appended to the Bill which was passed as Constitution (20th Amendment) Act, 1966. The statement said: Amendments of District Judges in Uttar Pradesh and a few other States have been rendered invalid and illegal by a recent judgment of the Supreme Court on the ground that such appointments were not made in accordance with the provisions of Article 233 of the Constitution... As a result of these judgments, a serious situation has arisen because doubt has been thrown on the validity of the judgements, de-

233 and Article 235 of the Constitution. The twentieth amendment was the consequence of the decision of the Supreme Court in Chandra Mohan v. State of U.P. [1967 (1) SCR 77], that appointments of District Judges made otherwise than in accordance with the provisions of Article 233 and 235 were invalid. As such appointments had been made in many States, in order to pre-empt mushroom litigation springing up all over the country, it was apparently though desirable that the precise position should be stated by the constituent body by amending the Constitution. Shri Phadke, learned counsel for the appellants, argued that the constituent body could not be imputed with the intention of making superuous amendments to the Constitution. Shri Phadke invited us to say that it was a necessary inference from the twentieth amendment of the Contitution that, but for the amendment, the judgments, decrees, etc. of the District Judges appointed otherwise than in accordance with the provisions of Article 233 would be void. We do not think that the inference suggested by Shri Phadke is a necessary inference. It is true that as a general rule the Parliament may be presumed not to make superuous legislation. The presumption is not a strong presumption and statutes are full of provisions introduced because abundans cautela non nocet (there is no harm in being cautious). When judicial pronouncements have already declared the law on the subject, the statutory reiteration of the law with reference to particular case does not lead to the nec-

379 crees, orders and sentences passed or made by these District Judges and a number of writ petitions and other cases have already been led challenging their validity. The functioning of the District Courts in Uttar Pradesh has practically come to a standstill. It is, therefore, urgently necessary to validate the judgments, decrees, orders and sentences passed or made heretofore by all such District Judges in those States..... This position of law was again reiterated in State of U.P. v. Raquddin [1988 (1) SLR 491=1987 Supp. SCC 401] wherein it was held: We have recorded ndings that 21 unplaced candidates of 1970 examination were appointed to the service illegally in breach of the Rules. We would, however, like to add that even though their appointment was not in accordance with the law but the judgment, and orders passed by them are not rendered invalid. The unplaced candidate are not usurpers of oce, they were appointed by the competent authority to the posts of munsifs with the concurrence of the High Court, though they had not been found suitable for appointment according to the norms xed by the Public Service Commission. They have been working in the judicial service during all these years and some of them have been promoted also and they have performed their functions and duties as de facto judicial ocers. A person who is ineligible to judgeship, but who has nevertheless been duly appointed and who exercise the powers and duties of the ofce of a de facto judge, he acts validly until he is properly removed. Judgment and orders of a de factor judge cannot be challenged on the ground of his ineligibility for appointment. In view of this position of law the judgments rendered by the court martial which have attained nality 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 disqualication 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 t persons as judge advocate in pending court martials, if so required. In the light of what has been stated hereinabove, the appeal is dismissed with the observations and ndings noticed in the preceding paragraph and the judgment of the Division Bench of the High Court is upheld. No costs.

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Chapter 32

Sukhdev Singh Gill v. State Of Punjab 2000)

Sukhdev Singh Gill v. State Of Punjab & Ors. on 19 October, 2000 Equivalent citations: 2000 (87) FLR 951, 2000 (7) SCALE 259, (2000) 8 SCC 492 Author: M J Rao Bench: M Rao, M Shah JUDGMENT M. Jagannadha Rao, J. CIVIL APPEAL NO. 499 OF 1992: 1. This is an appeal by Sukhdev Singh Gill who led Writ Petition No. 6160 of 1987. In the writ petition the appellant unsuccessfully claimed the benet of military service towards xation of his seniority in terms of the Punjab Government National Emergency (Concession) Rules, 1965 (hereinafter referred to as the Rules). the period of external emergency. He therefore, claimed that the Armed Force called by the name G.R.E.F. was an integral part of the Indian Army and that in terms of the above Rules, he was entitled to count the military service rendered by him for the purpose of seniority in the Municipal Administration of the State which was a provincialised service. As the question of seniority was involved, the impleaded Respondent Nos. 3, 4 & 5 in the writ petition who would be aected if he was given the benet of military service.

3. Learned Single Judge allowed the writ petition but on appeal the Division Bench of the High Court set aside the said judgment in Letters Patent Appeal No. 1372 of 1988 and dismissed the writ petition. It is 2. The appellant joined as Su- against this judgment that this apperintendent in General Reserve En- peal has been preferred. gineering Force (hereinafter referred 4. The appellant joined service as to as G.R.E.F.) on 8-11-1966. He was a Superintendent in the G.R.E.F. on conrmed in the said post. He ren- 8-11-1966 and was discharged somedered the service in this post during time before 24-11-1972. He joined

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Sukhdev Singh Gill v. State Of Punjab 2000) wings of the Indian Armed Forces (including service as a warrant ocer) rendered by a person during the period of Operation of the Proclamation of Emergency made by the President under Article 352 of the Constitution on the 26th October, 1962 or such other service as may hereafter be declared as military service for the purposes of these rules. Any period of military training followed by military service shall also be reckoned as military service.

the Punjab Agriculture University as a Section Ocer and on 7-9-1973, in the Municipal Committee, Ludhiana. In the year 1976 the services of the employees of the Municipal Committee were provincialised and the appellant was posted in the Municipal Corporation, Amritsar. The writ petition relating to seniority was led in the year 1986 but pending the writ petition, the representation of the appellant was rejected on 3-31987. Thereafter, the writ petition was amended challenging the said order dated 3-3-1987.

6. It is the case of learned senior counsel appearing for the appel5. The relevant notication lant, Shri Rajinder Sachar that the issued under the Punjab Govern- military service dened in Rule 2 in ment National Emergency (Conces- the above notication includes the sion) Rules, 1965, is dated 20-7-1965 service rendered by the appellant in being G.S.R. 160/Const.Art.309/65. the G.R.E.F. and that the said serRelevant part of material for the pur- vice should be added to his service in the Municipal Department of the pose of this case reads as follows: State of Punjab and if that is done, No. G.S.R. 160/Const./Art.309/65In exercise of the powers conferred he would be senior to the private by the proviso enabling him in this respondents. This plea is opposed behalf, the Governor of Punjab is by Shri Adarsh Goel, learned senior pleased to make the following rules: counsel for the private respondent. 1. Short title, commencement and application (1) These rules may be called the Punjab Government National Emergency (Concession) Rules, 1965. (2) They shall come into force at once. (3) They shall apply to all classes of services and posts in connection with the aairs of the State of Punjab except Medical and Health services. 7. Therefore, the limited question before us is whether the appellant could be said to have been enrolled or commissioned in any of the three wings of the Indian Armed Forces (including service as a warrant ocer) as required by Rule 2 (rst part) or whether the appellant was a member of any other service as might have been declared as military service for the purposes of the said Rules, as required by Rule 2 (second part).

2. Denition for the purposes of these rules, the expression mili8. So far as the second part of tary service means enrolled or com- Rule 2 which refers to such other missioned service in any of the three service as may be declared as mili-

383 tary service, it is not in dispute that there is no separate notication issued by the Punjab Government, notifying the service in the G.R.E.F. for the purposes of Rule 2 of the said Rules. 9. Under these circumstances, the question is conned to the rst part of Rule 2, namely; whether the appellant could be said to have been enrolled or commissioned in any of the three services of the Indian Armed Forces. der the authority of the Central Government, all the provisions of the said Act with the exception of those shown in Schedule A subject to the modications set forth in Schedule B, and

(b) direct that the ocers mentioned in the rst column of Schedule C shall exercise or perform in respect of members of the said force under their command the jurisdiction, powers and duties incidental to the operations of the said Act, specied 10. Learned senior counsel for in the second column thereof. the appellant relied upon the judg11. So far as Schedule A of ment of this Court in R. Viswan and the SRO is concerned, it excepts cerOrs. v. Union of India and Ors. , tain provisions of the Army Act and where this Court considered the na- states that they do not apply to the ture of the service in the G.R.E.F. members of G.R.E.F. whereas Schedand the applicability of certain pro- ule B of the Notication relates to visions of the Army Act, 1950 for the certain amendments in Sections 3, purpose of taking disciplinary action 63, 73, 81(4), 113, 114 and 116(1) of against the Ocers of the G.R.E.F. the said Act. In the above judgment, In that judgment this Court exhaus- this Court noticed the denition of tively dealt with the provisions of Ar- the word, the Forces in Section 3(xi) ticle 33 of the Constitution of India of the Army Act which reads as foland the relevant notication issued lows: by the Government of India under (xi) the Forces means the reguSections 4(1) and 4(4) of the Army lar Army, Navy and Air Force or any Act, 1950 under SRO 329 dated 23- part of any one or more of them; 9-1960. The said notication issued 12. This Court also referred to under the Army Act, reads as folSection 4(1) & (4) of the Army Act, lows: 1950 which read as follows: SRO 329 dated 23rd September 4(1) The Central Government 1960 In exercise of the powers conmay, by notication, apply, with or ferred by Sub-section (1) and (4) of without modications, all or any of Section 4 of the Army Act, 1950 (46 the provisions of this Act to any force of 1950), the Central Government raised and maintained in India under hereby: the authority of that Government, (a) applies to the General Re- including any force maintained by a verse Engineer Force, being a force Part B State, and suspend the opraised and maintained in India un- eration of any other enactment for

384

Sukhdev Singh Gill v. State Of Punjab 2000)

the time being applicable to the said would not help because the expresforce. sion to be construed was the word (4) While any of the provisions of Force which was dierent from the this Act apply to the said force, the words, the Forces. After having Central Government may, by noti- so observed, this Court referred to cation, direct by what authority any the question whether the members jurisdiction, powers or duties inci- of GREF could be considered to be dent to the operation of these provi- the members of the Armed Forces sions shall be exercised or performed within the meaning of Article 33 of the Constitution of India. This bein respect of the said force. came necessary in that case because 13. It was held in that case that the question was whether the fundaG.R.E.F. came within Sub-section mental rights of the GREF Ocers (1) of Section 4 inasmuch as it was stood restricted as in the case of the a Force raised and maintained in three principal Forces. If Article 33 India under the authority of the Cenapplied, the State would be protected tral Government. It was further under Article 33 of the Constitution held that the entire infrastructure of of India and it could take disciplinary GREF was modelled on the pattern action within the limits permitted by of the Army and it was organised a restrictive law. After going through into units and sub-units with comvarious provisions, this Court held mand and control system similar to that GREF was an integral part of that in the Army. The personnel of the Armed Forces and the members GREF right from Class IV to Class I of the GREF were the members of had to be in uniform with distinctive the Armed Forces within the meanbadges of rank and they had a rank ing of Article 33 of the Constitution structure equivalent to that of the of India and the disciplinary action Army. GREF was primarily intended taken in that case was not ultra vires. to carry out defence and other works 14. In fact, there is a notication projected by the General Sta of the dated 14-8-1985 which forms part Army Headquarters and it was only when spare capacity was available of the paper book before us issued that GREF could undertake works by the Government of India being of other ministries or departments or No. F 81(l)/64-Eastt.70463/GREF agency basis and there also, prefer- which states that in view of the judgence would be given to strategic and ment in R. Viswan and Ors. v. other roads in sensitive areas. This Union of India and Ors., the PresCourt referred to the denition of ident of India is pleased to declare the Armed Forces in Section 3(xi) General Reserve Engineer Force to (at page 420) and observed that the be an integral part of the Armed word, Force was not dened any- Forces of India. where under the Army Act, 1950 but 15. Relying on the above said there was denition of the words, judgment and the order issued by the Forces in Section 3(xi), but it the Government of India dated 14-

385 8-1986 and Section 4(1) of the Army Act, 1950, learned senior counsel for the appellant contended that GREF was a Force falling within the connotation of Armed Forces under Article 33 of the Constitution of India and that is why Section 4(1) of the Army Act was made applicable to the GREF and if that was the position of law, the appellant was entitled to claim that his past service fell within the denition of military service under Rule 2 of the Punjab Government National Emergency (Concession) Rules, 1965. the word, the Forces as the regular Forces, namely, the Army, Navy and Air Force or any part of any one or more of them. The Punjab Rules permitting computation of military service therefore, appear to us to restrict the benet of military service only to those Ocers who are enrolled or commissioned in the three principal wings of the Armed Forces, namely, Army, Navy and Air Force and it was not intended to extend to any other Armed Force to which the provisions of the Indian Army Act are extended under Section 4(1) of 16. There cannot be any di- the Army Act, 1950. 19. Thus, even though the apculty, in view of the judgment of this Court in the above case and the sub- pellant can be said to belong to the sequent notication dated 14-8-1985 Armed Forces for purposes of the issued by the Government of India, Army Act and Article 33 of the Conthat the appellants service in GREF stitution of India, and even assumcould be treated as service in the ing that he was enrolled or commisArmed Forces for purposes of Ar- sioned in the GREF, still his service ticle 33 of the Constitution of India. could not be treated as service renBut the question is whether that is dered in the three principal wings sucient for the purpose of attract- of the Armed Forces, namely, Army ing Rule 2 of the above said 1965 Navy and Air Force. We are, therePunjab Rules dated 21-7-1965 ? fore, of the view that the judgment of 17. We have already extracted the Division Bench of the High Court the above rule and it would be no- is correct and the appellant is not ticed that the military service which entitled to count his service in the would be counted as service must be GREF for the purpose of seniority in service as an enrolled or commis- the provincialised service under the sioned ocer in the three wings of State of Punjab. The Punjab Rules the Indian Armed Forces (including of 1965 are thus not applicable to the the service as Warrant Ocer) That appellant. 20. Learned senior counsel for the is what Rule 2 of the Punjab Rules appellant, however, invited our atof 1965 requires. 18. It appears to us that the tention to a statement made in the words, three wings used in Rule 2 counter adavit led by Mr. Om of the above said Rules has to be un- Prakash Tandon, PGS (I), Under derstood in the light of Section 3(xi) Secretary to Government of Punjab, of the Army Act, 1950 which denes, Department of Local Government on

386

Sukhdev Singh Gill v. State Of Punjab 2000) note of the fact that such a statement is made in the counter adavit. 21. For the aforesaid reasons, this appeal fails and is hereby dismissed, but in the circumstances of the case with no order as to costs. CIVIL APPEAL NO. 500 OF 1992 22. In view of the order passed in Civil Appeal No. 499 of 1992, this appeal also fails and is hereby dismissed, but in the circumstances of the case with no order as to costs.

behalf of Respondent Nos. 1 & 2 in the writ petition. (Respondent No. 1 in the writ petition is the State of Punjab and respondent No. 2 is the Director, Local Self Government Department, Punjab, Chandigarh). At page 75 of the paper book, we nd in the said counter adavit led by the said Ocer it was stated that the appellant was entitled for the benet of previous military service for the purpose of pay and leave but he was not entitled for the benet of said service for seniority. We take

Chapter 33

Union Of India v. R P Yadav 2000

Union Of India & Others vs R.P. Yadav on 10 May, 2000 Author: D Mohapatra Bench: K.T.Thomas, D.P.Mohapatro PETITIONER: UNION OF INDIA & OTHERS v. RESPONDENT: R.P. YADAV DATE 10/05/2000 BENCH: K.T.Thomas, D.P.Mohapatro JUDGMENT: D.P. MOHAPATRA,J. Leave granted. The question that arises for determination in these appeals is whether an Articer Apprentice of Indian Navy who has been given a reengagement for a certain period after obtaining his consent for it is entitled to withdraw the consent and demand his release from the force as of OF JUDGMENT: right? Another question which also arises is what bearing the decision of this Court in Anuj Kumar Dey and Another vs. Union of India and others 1997 (1) SCC 366 on the above question. In the appeal arising from SLP (C) No.9839 of 1999, the respondent R.P. Yadav has already been released from the force in compliance with the direction of the Delhi High Court in the impugned judgment. Indeed in the Order dated 14-2-2000, this Court recorded the submission of Mr. Soli J. Sorabjee, learned Attorney General for India, that so far as the respondent R.P. Yadav is concerned, the Union of India is only interested in having the question of law decided and even if it is decided in favour of the Union of India, they will not deny the benet which R.P. Yadav has claimed in this petition. The period of re-engagement granted in the case of R.P. Yadav has also expired. But in the case of Raj Kumar, the respondent in the appeal arising from

388

Union Of India v. R P Yadav 2000 The main contention raised by the respondent in support of his case was that he had given his option for re-engagement under the impression that the period of 4 years of initial training after appointment was not to be counted for the purpose of qualifying service for pension and therefore he has to serve for four years more to earn pension under the rules. This Court in A.K. Dey & another vs. Union of India & others (supra) ruled that the period of initial training is also a part of qualifying service for the purpose of pension. The contention by the respondent was that in view of the change in the legal position brought about the decision of this Court, it is no more necessary for him to continue in service and he should be released from the force with all retiral benets with immediate eect. A learned single Judge of the High Court of Delhi by the Judgment dated 4th May, 1999, accepted the case of the respondent, allowed the writ petition and issued the direction, the respondents shall release the petitioners and send them to Commodore, Bureau of Sailors Chhetah Camp, Mankhurd, Mumbai-400 088, within 3 months for this purpose. The learned Judge further ordered that the respondents shall pass appropriate orders releasing the petitioner granting him all retiral benets. The respondents in the writ petition led letters patent appeal, LPA No. 327 of 1999, challenging the above judgment/order of the learned single Judge. The appeal was dismissed by a Division Bench of the High Court by the Judgment dated 3-8-1999, which is under chal-

SLP (C) No. 16848 of 1999, the period of re-engagement granted to the said respondent is due to expire on 31st January, 2002. Therefore, it will be convenient to refer to the relevant facts in the case of Raj Kumar that is the civil appeal arising from SLP (C) No.16848 of 1999. Raj Kumar was appointed as an Articer Apprentice in the Indian Navy on 14-1-1983. The period of initial engagement of 15 years expired on 31-1-1998. Before expiry of the said period he exercised option for re-engagement for a further period of four years and signed the requisite papers on 26-4-1996. The option was accepted and reengagement till 31-1-2002 was approved by the competent authority. On 9-4-1997, the respondent made a request for withdrawl of his option for re-engagement and cancellation of the order. The request was turned down by the authority vide the rejection order dated 11-6-1997. He led the writ petition, CW No. 3833 of 1997, before the Delhi High Court seeking the following reliefs: [i] issue a writ of certiorari or any other appropriate writ, order or direction quashing the impugned order dated 11- 06-97. [ii] issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to release the petitioner on the scheduled date of 31- 01-98 and grant him the pension and other retiremental benets as applicable to on the expiry of 15 years including 4 years training period.

389 lenge in the present appeal led by can just walk out of the force at any the respondents of the writ petition. time according to his sweet will and The factual position in the case of such a situation will seriously erode R.P. Yadav is similar on all material the discipline and eciency of the aspects excepting the dierence as Navy. noted above. The case of the respondents in the writ petition, shortly stated, was that an Articer Apprentice who is granted re- engagement for a certain period after obtaining his consent cannot subsequently resile from it and cannot claim release from the force as a matter of right. It was the further case of the respondents that the decision of this Court in A.K. Dey (supra) has no bearing on the controversy raised in the case. On the case of the parties gist of which has been stated above, the points formulated earlier arise for determination. The thrust of the contentions of Shri Altaf Ahmed, learned Additional Solicitor General was that the practice prevailing in the Navy is to ask for option of the Articer Apprentice concerned, his option for re-engagement much before (one year) completion of the initial period of engagement (fteen years then) so that the authorities may have sucient time to collect informations about the vacancy position and proper planning for maintaining the strength of the Naval Force can be made well in time. This, according to the learned counsel is necessary to keep the force in readiness for any eventuality. Elucidating the paint, the learned counsel submitted that if the case of the respondent is accepted then an Articer Apprentice who is a Sailor as held by this Court in A.K. Dey (supra), Shri K.G. Bhagat, learned counsel appearing for the respondent, on the other hand, contended that in A.K. Dey (supra), this Court has held that the period of initial training of four years as an Articer Apprentice is to be taken into account for the purpose of determining the qualifying service for pension which under the service rules/regulations is 15 years. This position came to the knowledge of the respondent and the authorities concerned only after the Judgment in A.K. Deys case was rendered. The position of law laid down by this Court is binding on the authorities concerned and therefore they cannot stand on the way of release of the respondent from the force on completion of 15 years which is also the qualifying service for pension. The learned counsel further contended that it is how the matter has been understood by ocers of the department which is evident from the letter HQNTG/3/ADM[S]/I of the Director(ADL) dated 9-4-1997, recommending the case of the respondent for release. In our view the answer to the rst question rests on the interpretation of relevant provisions of the Navy Act, 1957, The Navy (Discipline and Misc. Provision) Regulation 1965 and Navy Order No. Stp 17 of 1994 regarding re-engagement of Sailors (RP/0805/93). In Section 3 (20) sailor is dened as a per-

390

Union Of India v. R P Yadav 2000 able to continue to serve for such further period as may be required by the Chief of the Naval Sta; (b) he is re-enrolled in accordance with the regulations made under this Act. Section 17 which makes provision as to discharge provides in sub-section (1) that a sailor entitled to be discharged under Section 16 shall be discharged with all convenient speed and in an case within one month of becoming so entitled. In sub-section (3) of the said section it is laid down that notwithstanding anything contained in the preceding sub-sections, an enrolled person shall remain liable to serve until he is duly discharged. This provision is made subject to Section 18 which makes provision regarding savings of powers of dismissal by Naval tribunals. Chapter VI contains the provisions regarding service privileges. In Chapter VII are included the provisions regarding pay, pension, etc. and maintenance of families. Chapter VIII contains the provisions regarding articles of war. In Section 41, it is provided inter alia that every person subject to naval law, who (a) deserts his post shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned. Chapter XX which deals with provisions regarding regulations provides in Section 184 (1) that the Central Government may, by notication in the ocial Gazette, make regulations for the governance, command, discipline, recruitment, conditions of service and regulation of the naval forces and generally for the purpose

son in the naval service other than an ocer. In Section 11, it is laid down inter alia, that no person shall be enrolled as a sailor in the Indian Navy for a period exceeding 15 years (subsequently amended as 20 years) in the rst instance. In Section 14(1) it is provided that subject to the provisions of sub-section (4), ocers and sailors shall be liable to serve in the Indian Navy or the Indian Naval Reserve Forces, as the case may be, until they are duly discharged, dismissed, dismissed with disgrace, retired, permitted to resign, or released. In sub-section (2), it is laid down inter alia that no sailor shall be at liberty to resign his post except with the permission of the prescribed ocer. Chapter V contains the provisions regarding conditions of service. In Section 15, which deals with tenure of service of ocers and sailors it is declared in sub-section (1) that every ocer and sailor shall hold oce during the pleasure of the President. In sub-section (2), it is laid down that subject to the provisions of this Act and the regulations made thereunder,- (a) the Central Government may discharge or retire from the naval service any ocer; (b) the Chief of the Naval Sta or any prescribed ocer may dismiss or discharge from the naval service any sailor. In Section 16, it is provided inter alia that a sailor shall be entitled to be discharged at the expiration of the term of service for which he is engaged unless - (a) such expiration occurs during active service in which case he shall be li-

391 of carrying into eect the provisions of this certicate is to be retained of this Act. with sailors service documents and Reliance has been placed on the another forwarded to the Bureau of Navy Order No. (Str.)17 of w1994 by Sailors, Bombay. Under sub-clause learned Additional Solicitor General (c) of this Regulation it is provided in which are contained the provisions that sailors who have once expressed regarding re-engagement of sailors. their unwillingness to sign an underIn introduction to this Navy Order taking for further service and subit is stated inter alia that the pe- sequently wish to be re-engaged on riod of enrollment in respect of non promotion, will be considered for reArticer /Articer sailor and terms engagement only if they are willing and conditions governing their fur- to sign for a minimum period of two ther re-engagement of service have years, provided the request is put been laid down in this Navy Order. up at least nine months prior to the In clause (4) it is declared grant of date of release. In the said provision re-engagement is subject to service it is expressly declared that short requirement, and is not to be con- term re-engagements of one to nine strued as a matter of right. Depend- months in order to earn pension of ing upon the requirement of service the rank will not be granted. (ema sailor can be re- engaged only if he phasis supplied). fullls the conditions set out in clause In clause (16) of the order it (4). The criteria for re-engagement is made explicit that re-engagement are provided in clause (5) of the Or- is a service requirement, therefore, der. there is no provision to give reIn clause (6) it is laid down that engagement to sailors only on coma sailor is required to exercise his passionate grounds; however, while option for re-engagement for further reviewing the re-engagement cases of service on the following occasions : deserving cases, the welfare of sailors (a) On receipt of Expiry of Engage- is also given due consideration to the ment Serial from CABS. (b) On se- possible extent. Clause 18 of the lection for higher rank professional Naval order which is important for courses/specialist courses/non- the purpose of the present case reads professional pre-promotion courses as follows: in India (c) On selection for Depu18. Cancellation of Retation for new acquisitions/ courses engagement. Once re-engagement has been granted to a sailor consepostings abroad. In clause (13) provision is made, quent to his willingness, the engageinter alia, that on publication of Ex- ment will generally not be cancelled piry of Engagement Serial if a sailor due to any altered circumstances afdoes not wish to re-engage for fur- fecting the sailor. The sailor will ther service a certicate of unwilling- be required to serve upto the period ness as per Appendix D to this or- re-engaged for. der is obtained from him. A copy The provisions of the Naval

392

Union Of India v. R P Yadav 2000 Force including sailors. Under Regulation 127 sailors who may have quit their ships without leave, or have overstayed their leave or have improperly absented themselves when detached on duty, and who may be apprehended before the expiration of seven days, beyond the precincts of a dockyard or other government establishment in which they may have been employed, shall be treated either as absentees or as deserters, according to the circumstances which are to be judged by their respective commanding ocers. From provisions in the Regulations it is also manifest that stringent measures of punishment are prescribed for any act of indiscipline. It is also a matter of common knowledge that the Naval Force which is entrusted with the sacred duty of guarding the shores of the country against any form of aggression should be a highly disciplined and ecient service. An incidental question that arises is whether the claim made by the respondents to be released from the force as of right is in keeping with the requirements of strict discipline of the Naval Service. In our considered view the answer to the question has to be in the negative. To vest a right in a member of the Naval Force to walk out from the service at any point of time according to his sweet will is a concept abhorrent to the high standard of discipline expected of members of defence services. The consequence in accepting such contention raised on behalf of the respondents will lead to disastrous results touching upon security of the

Str.17, leave no manner of doubt that re-engagement of sailors can neither be claimed by a sailor as a matter of right nor can cancellation of re-engagement and release from the force be claimed by a sailor as a matter of right. It is to be decided by the competent authority keeping in view the relevant factors, the most important one being the service requirements. From the conspectus of the relevant provisions of the Act, the Regulations and the Navy Orders including those noted above, the position is manifest that the Naval Service is to be maintained as a highly disciplined service always kept in readiness to face any situation of emergency. The personnel of the naval service are provided with various facilities and privileges dierent from those available to other civil services. As noticed earlier in Section 16 of the Act a provision is made that a sailor shall be entitled to be discharged at the expiration of the terms of service for which he is engaged. One of the circumstances when this general rule shall not apply is that he is re-enrolled in accordance with the requirements made in the Act. No provision in the Navy Regulations, 1965, has been brought to our notice which expressly or by implication provides that a sailor can at any time during the subsistence of period of re-engagement demand release from service. On the contrary a fair reading of the provisions of the Regulations shows that a very high standard of discipline is to be maintained by members of the Naval

393 nation. It has to be borne in mind that members of the defence services including the Navy have the proud privilege of being entrusted with the task of security of the Nation. It is a privilege which comes the way of only selected persons who have succeeded in entering the service and have maintained high standards of eciency. It is also clear from the provisions in Regulations like Regulation 217 and 218 that persons who in the opinion of the prescribed authority, are not found permanently t for any form of naval service may be terminated and discharged from the service. The position is clear that a sailor is entitled to seek discharge from service at the end of the period for which he has been engaged and even this right is subject to the exceptions provided in the Regulations. Such provisions, in our considered view, rule out the concept of any right in a sailor to claim as of right release during subsistence of period of engagement or re-engagement as the case may be. Such a measure is required in the larger interest of the country. A sailor during the 15 or 20 years of initial engagement which includes the period of training attains a high degree expertise and skill for which substantial amounts are spent from the exchequer. Therefore, it is in the tness of things that the strength of the Naval Force to be maintained is to be determined after careful planning and study. In a situation of emergency the country may ill aord losing trained sailors from the force. In such a situation if the sailors who have completed the period of initial engagement and have been granted re-engagement demand release from the force and the authorities have no discretion in the matter, then the efciency and combat preparedness of the Naval Force may be adversely affected. Such a situation has to be avoided. The approach of the High Court that a sailor who has completed 15 years of service and thereby earned the right of pension can claim release as a matter of right and the authority concerned is bound to accept his request does not commend us. In our considered view, the High Court has erred in its approach to the case and the error has vitiated the judgment. At this stage it will be relevant to deal with the contention which has been raised on behalf of the respondents that they agreed for reengagement only for the reason that they were not eligible to receive pension under the Navy (Pension) Amendment Regulations, 1982, and since that position no longer holds good in view of the decision of this Court in Anuj Kumar Deys case (supra) they are entitled to withdraw the option given by them earlier. This contention is wholly unacceptable and has to be rejected. Reasons for which a sailor may exercise option for re-engagement may be very many. Such reasons will vary from person to person. No provision in the Act or Regulation has been placed before us which shows that the sailor is required to state the reason in support of the option given by him for re-engagement. Therefore,

394

Union Of India v. R P Yadav 2000 have a direct or indirect bearing on the controversy raised in the present case. It follows that the decision of this Court in Anuj Kumar Deys case (supra) cannot provide a legitimate basis for claim of the respondents to be discharged from the Naval force as a right. In the result the appeals are allowed. The Judgment of the learned single Judge of the High Court in C.W.P. No. 3833/97 dated 4.5.99 as conrmed by the Division Bench of the High Court of Delhi in L.P.A.No.327 of 1999 and C.W.P. No. 1368/98 as conrmed in L.P.A.No. 579/98, are set aside. There will however, be no order as to costs.

the reason which played in the mind of the sailor concerned to exercise option in favour of re-engagement is not relevant for determination of the question raised in the case. In that view of the matter the decision of this Court in Anuj Kumar Deys case (supra) is of little assistance to the respondents in the case. All that was decided by this Court in that case is that the training period as Articer Apprentice, will be included in the computation of the qualifying period of service for earning pension for the reason that during the period of training as Articer Apprentice the sailor was in the service of the Navy. This Court did not consider any other question which may

Chapter 34

Union Of India v. Harjeet Singh Sandhu 2001

Union Of India And Ors. v. Harjeet Singh Sandhu Etc. on 11 April, 2001 Equivalent citations: AIR 2001 SC 1772, JT 2001 (4) SC 597, 2001 LablC 1707 Author: R Lahoti Bench: R Lahoti, B Kumar, . A Anand JUDGMENT R.C. Lahoti, J. 1. Harjeet Singh Sandhu, the respondent in S.L.P.(C) No.5155/1998 was a captain in the Army. On the night intervening 27th & 28th March, 1978, the respondent along with three other ocers interrogated one Bhagwan Das, who was also a defence employee, in connection with an incident of theft. During the course of interrogation the respondent and his co-associates used third degree methods in orders to extract a confession as a result whereof Bhagwan Das died. A General Court martial (GCM, for short) was convened under Section 109 of Army Act, 1950 which tried the respondent and the other ocers. On 26.12.1978 the GCM awarded the sentence of forfeiture of three years service for purpose of promotion and severe reprimand to the respondent. The conrming authority formed an opinion that the sentence passed on the respondent was very lenient and therefore vide order dated 19.4.1979, in exercise of the powers conferred by Section 160 of the Army Act sent the case back for revision. On 10.5.1979, the GCM, on revision, enhanced the punishment inicted on the respondent to forfeiture of three years of service for the purpose of promotion and also for the purpose of pay and pension. On 24.9.1979 the Chief of the Army Sta in exercise of the power conferred by Section 165 annulled the GCM proceedings on the ground that the proceedings were unjust. On 20.12.1979, a show cause notice was issued to the respondent under Section 19 of the Act read with Rule 14 of the Army Rules, 1954 (hereinafter the Rules, for short) calling upon the respondent to show cause why his services should not be terminated. Reply was led by the

396

Union Of India v. Harjeet Singh Sandhu 2001 with Rule 14 was vitiated. The writ petition has been allowed and the impugned order of termination dated 2.1.1984 has been quashed. 2. In S.L.P(C) No.3233/2000 the respondent Harminder Kumar was a Captain in the Army. In the year 1979 the respondent was found blameworthy for discrepancies in respect of stocks in Fuel Petroleum Depot, Leh between the period 10.3.1979 to 22.3.1979. Summary of evidence having been recorded, on 5.8.1981 a General Court Martial was ordered to be convened on 18.8.1981. On 14.8.1981 the respondent led a civil writ petition under Article 32 of the Constitution of India in this Court wherein, by an interim order, the proceedings in the court martial were directed to be stayed. On 26.11.1982 the writ petition led by the respondent was dismissed, consequent whereupon the interim order of stay also stood vacated. On 7.2.1983 the respondent as informed that General Court Martial against the respondent was xed to be convened on 28.2.1984. However, on 28.2.1984 the Chief of the Army Sta in exercise of the power conferred by Section 19 read with Rule 14 issued a notice to the respondent calling upon him to show cause why his services be not terminated in view of the fact that the court martial proceedings against the respondent were impracticable and the Chief of the Army Sta was of the opinion that further retention of the respondent in the service was not desirable. Immediately, the respondent led a writ petition in the High Court

respondent defending himself. On 16.7.1982 a fresh cause notice was issued to the respondent requiring him to show cause why his service be not terminated under Section 19 read with Rule 14. Both the notices dated 20.12.1979 and 16.7.1982 recorded on the part of the Chief of the Army Sta - (i) a satisfaction that the respondents retrial by a court martial consequent to the annulment of the GCM proceedings was impracticable, and (ii) formation of opinion that the respondents further retention in the service was undesirable. The latter notice also stated that the earlier notice was thereby cancelled though the reason for such cancellation was not mentioned. The respondent led a reply dated 9.9.1982 in defence of himself. On 2.1.1984 the Chief of the Army Sta passed an order dismissing the respondent from service. On 16.2.1984 the respondent led a civil writ petition before the High Court of Allahabad laying challenge to the order of termination. The singular contention raised before the High Court was that the incident, in which the respondent was involved had taken place in the night intervening 27th & 28th March, 1979 and Court martial proceedings had become barred by time on 28th March, 1981 under Section 122 of the Act whereafter Section 19 of the Act was not available to be invoked. The High Court of Allahabad in its impugned judgment, formed an opinion that the decision of this Court in Major Radha Krishan v. Union of India , squarely applies to the facts of this case and therefore the exercise of power under Section 19 read

397 of Delhi submitting that the general court martial proceedings having become barred by time against him on account of lapse of three years from the date of the oence, the notice issued to him was without jurisdiction. Vide order dated 8th September, 1998 the High Court has held, placing reliance on the decision of this Court in Major Radha Krishan v. Union of India , that once the court martial proceedings have become time-barred the Chief of the Army Sta could not have had recourse to Section 19 of the Act read with Rule 14 of the Rules. Consequently, the writ petition has been allowed and show cause notice dated 8th February, 1984 directed to be quashed. rendered by two Judges-Bench which does not take notice of the law laid down by this Court in Chief of Army Sta v. Major Dharam Pal Kukrety which is three-judges Bench decision; and secondly, the proposition laid down therein is too wide a proposition wholly unsustainable in the light of the express provisions contained in the Army Act and the Army Rules and the underlying scheme of the Legislation.

7. We would rst set out the facts in brief and the ration of the decisions rendered by this Court in the case of Major Radha Krishan (supra) and Major Dharam Pal Kukrety (supra) before dealing with other contentions raised by the learned counsel for the parties be3. The Union of India has led cause the major part of submissions these petitions for special leave to ap- made by the learned counsel center peal. around the abovesaid two decisions. 4. Delay condoned in ling 8. To appreciate the ratio of the SLP(C) No.5155/1998. abovesaid two cases it will be neces5. Leave granted in both the sary to keep in view the provisions contained in Section 19 and 122 of SLPs. the Army Act, 1950 and Rule 14 6. We have heard Shri Altaf Ahof Army Rules, 1954 which are exmad, the learned Additional Solicitor tracted and reproduced hereunder :General for the appellant and Shri Army Act, 1950 Prem Prasad Juneja, Ms. Indu Malhotra and Shri A. Mariarputham, 19. Termination of Service by Advocates for the respondents. The Central Government. - Subject to principal plea raised on behalf of the the provisions of this Act and the appellant and forcefully pressed by rules and regulations made thereunthe learned Additional Solicitor Gen- der the Central Government may diseral at the time of hearing was the miss, or remove from the service, any Major Radha Krishans case was not person subject to this Act. correctly decided and therefore needs 122. Period of limitation for trial. to be reconsidered by this Court for - (1) Except as provided by subtwo reasons: rstly, because Major section (2), no trial by court marRadha Krishans case is a decision tial of any person subject to this Act

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for any oence shall be commenced Army Rules, 1954 after the expiration of a period of [14. Termination of service by three years [and such period shall the Central Government on account commence, of misconduct. - (1) When it is pro(a) on the date of the oence; or posed to terminate the service of an (b) where the commission of the ocer under section 19 on account of oence was not known to the person misconduct, he shall be given an opaggrieved by the oence or to the au- portunity to show cause in the manthority competent to initiate action, ner specied in sub-rule (2) against the rst day on which such oence such action comes to the knowledge of such perProvided that this sub-rule shall son or authority, whichever is earlier; not apply or (a) where the service is termi(c) where it is known by whom nated on the ground of misconduct the oence was committed, the rst which has led to his conviction by a day on which the identity of the of- criminal court; or fered is known to the person ag(b) where the Central Governgrieved by the oence or to the au- ment is satised that for reasons, to thority competent to initiate action, be recorded in writing, it is not exwhichever is earlier.] pedient or reasonably practicable to (2) The provisions of sub-section (1) shall not apply to a trial for an offence of desertion or fraudulent enrolment or for any of the oences mentioned in section 37. (3) In the computation of the period of time mentioned in sub-section (1), any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the oence, shall be excluded. (4) No trial for an oence of desertion other than desertion on active service or of fraudulent enrolment shall be commenced if the person in question, not being an ocer, has subsequently to the commission of the oence, served continuously in any exemplary manner for not less than three years with any portion of the regular Army. give to the ocer an opportunity of showing cause. (2) When after considering the reports on an ocers misconduct, the Central Government or the Chief of the Army Sta is satised that the trial of the ocer by a court martial is inexpedient or impracticable, but is of the opinion, that the further retention of the said ocer in the service is undesirable, the Chief of the Army Sta shall so inform the ocer together with all reports adverse to him and he shall be called upon to submit in writing, his explanation and defence: Provided that the Chief of the Army Sta may withhold from disclosure any such report or portion thereof if, in his opinion, its disclosure is not in the interest of the security of the State.

399 In the event of the explanation of the ocer being considered unsatisfactory by the Chief of the Army Sta, or when so directed by the Central Government, the case shall be submitted to the Central Government, with the ocers defence and the recommendation of the Chief of the Army Sta as to the termination of the ocers service in the manner specied in sub-rule (4). tion of the Chief of the Army Sta, may (a) dismiss or remove the ocer with or without pension or gratuity; or (b) compulsorily retire him from the service with pension and gratuity, if any, admissible to him.]]

9.Other provisions of the Act and the Rules, to the extent necessary, shall be adverted to as and when re(3) Where, upon the conviction quired. of an ocer by a criminal court, the 10. In Major Radha Krishans Central Government or the Chief of the Army Sta considers that the case the ocer had committed misconduct of the ocer which has led conduct and the trial thereof by to his conviction renders his further Court martial had become timeretention in service undesirable a cer- barred under Section 122 of the Act tied copy of the judgment of the whereafter, on 10.9.1990, a notice criminal court convicting him shall was issued by the Chief of the Army be submitted to the Central Gov- Sta to the ocer which inter alia ernment with the recommendation of stated - and whereas the COAS is the Chief of the Army Sta as to the further satised that your trial for termination of the ocers service in the above misconduct is impracticathe manner specied in sub-rule (4). ble having become time-barred by the time the court of inquiry was [(4) When submitting a case to nalised and he is of the opinion that the Central Government under the your further retention in service is provisions of sub-rule (2) or sub-rule undesirable. This Court for the pur(3), the Chief of the Army Sta shall pose of nding out the meaning of make his recommendation whether impracticable, the term occurring the ocers service should be termiin sub-rule (2) of Rule 14, referred nated, and if so, whether the ocer to dictionary meanings of impracshould be ticable, and inexpedient and then (a) dismissed from service; or concluded that impracticability is a (b) removed from service; or concept dierent from impossibility (c) Compulsory retired from the for while the latter is absolute, the former introduces at all events some service. degree of reason and involves some (5) The Central Government afregard for practice. As the provision ter considering the reports and the of limitation prescribed under Act ocers defence, if any, or the judgprohibited a trial by court martial ment of the criminal court, as the being held on expiry of the period of case may be, and the recommenda-

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Union Of India v. Harjeet Singh Sandhu 2001 11. Major Dharam Pal Kukrety was a permanent commissioned ocer of the Indian Army holding the substantive rank of Captain and acting rank of Major. He was tried by a general court martial on four charges referable to certain incidents which had taken place on November 6 and 7, 1975. On March 13, 1976 the court martial announced its nding (subject to conrmation) of not guilty of all the charges. The conrming authority did not conrm the verdict and by order dated Aril 3, 1976 sent back the nding for revision. The same general court martial re-assembled on April 14, 1976. Once again the general court martial, adhering to its original view, announced the nding that the respondent was not guilty of all the charges (subject to conrmation). On May 25, 1976 the conrming authority refused to conrm the nding and promulgated, as required by Rule 71, the charges against the ocer, the ndings of the court martial and the non-conrmation thereof. Thereafter, the Chief of the Army Sta exercising power under Rule 14 issued a show cause notice dated November 12, 1976 which notice recorded inter alia the satisfaction of the COAS that a fresh trial by a court martial for the said oences was inexpedient, as also his opinion that the ocers misconduct rendered his further retention in the service undesirable. The ocer led a civil writ petition in the High Court of Allahabad laying challenge to the validity of the show cause notice. The contention of the ocer was that there was an initial option either to

limitation such a provision could not be overridden by invoking Section 19 and thus achieving a purpose by an administrative act which could not be achieved by holding a trial under a statutory provision. Once a misconduct was rendered legally impossible and impermissible to be tried on account of bar of limitation it could not be said that the trial of the ofcer was impracticable and therefore resort could not be had to sub-Rule (2) of Rule 14. Vide para 10, yet another reason assigned by this court is that the satisfaction with regard to inexpediency or impracticability of a trial by Court martial must be arrived at only on consideration of the reports of misconduct for the purpose of resorting to Rule 14. The satisfaction regarding the inexpediency or impracticability to hold a Court martial must ow from the nature and the context of the misconduct itself and not from any other extraneous factor such as that the Court martial proceedings had become time-bared. The contention advanced on behalf of the ocer was, in the view of the court, indefensible. Vide paras 11 and 12, this court held that the misconduct and other attending circumstances relating thereto have to be the sole basis for obtaining a satisfaction within the meaning of Rule 14(2) and dispensing with a trial on a satisfaction de hors the misconduct - like the bar of limitation - will be wholly alien to rule 14(2). Dharam Pal Kukretys case was neither placed before nor considered by the learned judges deciding Major Radha Krishans case.

401 have the ocer tried by a court martial or to take action against him under Rule 14 and the option having been exercised to try him by a court martial and the ocer having been acquitted both at the time of the original trial and on revision, it was not competent for the Chief of the Army Sta to have recourse to Rule 14. The contention found favour with the High Court. The High Court held that the ocer having been in fact tried by a court martial twice and a verdict of not guilty having been rendered twice the impugned notice Rule 14 was without jurisdiction. In the appeal preferred by Chief of the Army Sta before this Court two contentions were raised on behalf of the ocer : rstly, that it could not be said that the trial of the ocer by a court martial was inexpedient or impracticable as in fact he had been tried by a court martial; and secondly, that on a true construction of Rule 14 the Central Government or the Chief of the Army Sta had an initial option to have the ocer tried by a Court martial or to take action against him under Rule 14 and if the decision to have the ocer tied by court martial was taken then action under Rule 14 was not permissible in case of nding of acquittal being rendered by the court martial. Vide para 14, this court noticed decisions rendered by dierent High Courts of the country throwing light on the issue before the Court. Allahabad High Court was of the view that in spite of nonconrmation of the nding and sentence passed by the court martial such nding and sentence did exist though they could not be put into eect for want of conrmation and therefore a second trial by court martial would be barred. Jammu & Kashmir High Court was of the view that the Legislature could not have reasonably intended that an ocer convening a general court martial can go on dissolving such courts martial and reconstituting them ad innitum until he obtained a verdict or a nding of his own liking. Such a decision would not only be against public policy and violative of the rule of double jeopardy but would also reduce the provisions of the Army Act to a mockery and give an appearance of mala des. Having noticed the decisions of High Courts, this Court then concentrated on the question whether in such a case trial by a court martial is inexpedient or impracticable? Dictionary meaning of the term inexpedient was relied on. The Court then summed up its conclusion as under :In the present case, the Chief of the Army Sta had,on the one hand, the nding of a general court martial which had not been conrmed and the Chief of the Army Sta was of the opinion that the further retention of the respondent in the service was undesirable and, on the other hand, there were the above three High Court decisions and the point was not concluded by a denitive pronouncement of this Court. In such circumstances, to order a fresh trial by a court martial could certainly be said to be both inexpedient and impracticable and the only expedient and practicable course, there-

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Union Of India v. Harjeet Singh Sandhu 2001 193-A, such rules shall be laid before each House of Parliament. In State of U.P. v. Babu Ram the Constitution Bench has held, quoting from Maxwell on Interpretation of Statutes, that rules made under a Statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same eect as if contained in the Act, and are to be judicially noticed for all purposes of construction and obligation; an action taken under the Act or the rules made thereunder must conrm to the provisions of the Act and the rules which have conferred upon the appropriate authority the power to take an action. The Constitution Bench decision has been followed by this court in State of Tamil Nadu v. M/s Hind Stone holding that a statutory rule, while ever subordinate to the parent statute, is, otherwise, to be treated as part of the statute and as eective. [Also see Peerless General Finance and Investment Co.Ltd. v. Reserve Bank of India - .] 14. Section 19 and Rule 14 so read together and analysed, the following legal situation emerges :1) The Central Government may dismiss, or remove from the service, any person subject to the Army Act, 1950, on the ground of misconduct. 2) To initiate an action under Section 19, the Central Government or the Chief of the Army Sta after considering the reports on an ocers misconduct; a) must be satised that the trial

fore, open to the Chief of the Army Sta would be to take action against the Respondent under Rule 14, which he did. The action of the Chief of the Army Sta in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarranted in law. 12. The decision of Allahabad High Court under appeal was reversed and the writ petition led by the respondent therein was directed to be dismissed. 13. We would revert back to the above two decisions of this Court a little afterwards. We now proceed to notice the legislative scheme underlying Section 19 of the Act and Rule 14 of the Rules. Section 19 of the Act and Rule 14 of the Rules are to be read together and as integral parts of one whole scheme. Section 191 of the Act empowers the Central Government generally to make rules for the purpose of carrying into eect the provisions of this Act and without prejudice to the generality of such power, specically to make rules providing for inter alia the removal, retirement, release or discharge from the service of persons subject to the Army Act. Section 19 empowers the Central Government to dismiss or remove from the service any person subject to this Act which power is subject to: (i) the (other) provisions of this Act, and (ii) the rules and regulations made under the Act. Under Section 193, all rules made under the Act shall be published in the ocial gazette and on such publication shall have eect as if enacted in this Act. Under Section

403 of the ocer by a Court martial is by the Chief of the Army Sta or inexpedient or impracticable, when so directed by the Central Govb) must be of the opinion that the ernment, in either case, hall be subfurther retention of the said ocer in mitted to the Central Government with the ocers defence and the recthe service is undesirable. ommendation of the COAS as to the 3. Such satisfaction having been termination of the ocers service i.e. arrived at and such opinion having whether the ocer should be (a) disbeen formed, as abovesaid, the omissed, or (b) removed, or (c) comcer proceeded against shall be given pulsorily retired, from the service. an opportunity to show cause against 6) The Central Government shall the proposed action which opportuafter taking into consideration the renity shall include the ocer being informed together with all reports ad- ports (on the ocers misconduct) verse to him to submit in writing his the ocers defence, if any, and the explanation and defence. Any report recommendation of the COAS, shall on an ocers misconduct or portion take a decision which if unfavourable thereof may be withheld from being to the ocer may be (a) to dismiss disclosed to the ocer concerned if or remove the ocer with or without the Chief of the Army Sta is of the pension or gratuity; or (b) to comopinion that such disclosure is not pulsorily retire him from service with in the interest of the security of the pension and gratuity, if any, admissible to him. State. 15. The case of an ocer whose 4) Opportunity to show cause in the manner as abovesaid need not be service is proposed to be terminated given to an ocer in the following on the ground of misconduct which has led to his conviction by a crimitwo cases:nal court is to be treated dierently. a) Where the misconduct forming He need not be given an opportunity the ground for termination of service to show cause against the proposed is one which has led to the ocers termination. A decision as to termiconviction by a criminal court; nation in one of the modes provided b) Where the Central Govern- by sub-rule (4) of Rule 14 can be ment is satised that for reasons, to taken by the Central Government on be recorded in writing, it is not ex- its own or on the recommendation of pedient or reasonably practicable to the Chief of the Army Sta if he congive to the ocer an opportunity of siders that the conduct of the ocer showing cause. leading to his conviction renders his 5) The explanation of the ocer further retention in service undesirshall be considered by the Chief of able in which case his recommendathe Army Sta. If the explanation is tion accompanied by a certied copy found satisfactory, further proceed- of the judgment of the criminal court ings need not be pursued. The expla- convicting him shall be submitted to nation, if considered unsatisfactory the Central Government which will

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take the decision in accordance with of the proceedings, or to one of the sub-rule (5). three proceedings after the other one 16. The learned ASG submitted of the there has been set in motion that the defence services under the and accomplished. To e more spelaw of the land are treated as a class cic, submitted the learned counsel, apart as can be spelled out from the once an ocer has been subjected to dierent provisions of the Constitu- court martial proceedings or if such tion and the Army Act and other proceedings cannot be held or have laws. As the defence of the country proved to be abortive as having beis involved, in the very nature of the come barred by time or impossible or things, a cautious approach has to be impermissible then Section 19 cannot adopted while interpreting the sev- be invoked. In order to test the valideral legal provisions, the security of ity of such rival contentions forcefully the State and welfare of the nation advanced before us we would exambeing supreme. He submitted that ine the scheme of the Act and the imunder the scheme of the Legislation plications of the relevant provisions there is no warrant for holding that a contained therein. decision to take action under Section 19 read with Rule 14 or to convene a court martial ,must be taken only in the rst instance and before the time limited for commencing court martial proceedings comes to an end. He further submitted that power vesting in the Central Government and Chief of the Army Sta under Section 19 of the Act can be exercised whether before or after convening and holding trial by court martial and even after the expiry of the limitation prescribed by Section 122 for commencement of the court martial. On the other hand, the learned counsel appearing for the respondents (writpetitioners before the High Court) submitted that the scheme of the Army Act and the Rules made thereunder provides for an ocer subject to the Army Act being dealt with either by a criminal court or by a court martial or by an appropriate action under Section 19 of the Act and cannot be subjected to duality 17. Army defends the country and its frontiers. It is entrusted with the task of protecting against foreign invasion and preserving the national independence. The arduous nature of duties, the task they have to perform in emergent situations and the unknown lands and unknown situations wherein they have to function demand an exceptionally high standard of behavior and discipline compared to their counterparts in civil services. That is why the military people command the respect of the masses. Such factors taken together demand the military services being treated as a class apart and a dierent system of justice - military justice - being devised for them. Article 33 empowers the Parliament to restrict or abrogate fundamental rights in their application to the members of the armed forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them. Right to le special

405 leave to appeal before the Supreme Court and power of superintendence vesting in the High Courts do not extend over judgment, determination, sentence or order passed or made by any Court or Tribunal dealing with armed forces. Members of the defence services hold oce during pleasure of the President under Article 310 but they are not entitled to the protection oered by Article 311. The principles of interpretation of statutes which apply to any other statute also apply to the legislation dealing with defence services; however, the considerations of the security of the State and enforcement of a high degree of discipline additionally intervene and have to be assigned weightage while dealing with any expression needing to be dened or any provision needing to be interpreted. committed by persons subject to this Act and convicted by courts martial, according to the scale following, that is to say,(a) death; (b) transportation for life or for any period not less than seven years; (c) imprisonment, either rigorous or simple, for any period not exceeding fourteen years; (d) cashiering, in the case of ocers; (e) dismissal from the service; (f) reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant ocers; and reduction to the ranks or to a lower rank or grade, in the case of non-commissioned ocers:

Provided that a warrant ocer reduced to the ranks shall not be re18. Section 19, with which we are quired to serve in the ranks as a seconcerned, is to be found placed in poy; Chapter IV of the Act entitled Con(g) forfeiture of seniority of rank, ditions of Service. Chapter VI deals with oences. Sections 34 to 68, in the case of ocers, junior commisnding place in Chapter VI are very sioned ocers, warrant ocers and widely worded and embrace within non-commissioned ocers; and fortheir realm practically every type feiture of all or any part of their serof misconduct, its abetment and at- vice for the purpose of promotion, in tempt as well, which any person sub- the case of any of them whose promoject to the Act may commit. Section tion depends upon length of service; 69 dened civil oences, the com(h) forfeiture of service for the mission whereof shall be triable by a purpose of increased pay, pension or court martial. Section 70 denes civil any other prescribed purpose; oences not triable by court martial. (i) severe reprimand or repriChapter VII deals with punishments. mand, in the case of ocers, junior Therein Section 71 provides as under: commissioned ocers, warrant o71. Punishments awardable by cers and non-commissioned ocers; courts martial. - Punishments may (j) forfeiture of pay and albe inicted in respect of oences lowances for a period not exceeding

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three months for an oence commit- ment, the Chief of the Army Sta ted on active service; or any prescribed ocer to annul the (k) forfeiture in the case of a per- proceedings of any court martial on son sentenced to cashiering or dis- the ground that they are illegal or unmissal from the service of all arrears just. of pay and allowances and other pub22. Misconduct as a ground for lic money due to him at the time of terminating the service by way of dissuch cashiering or dismissal; missal or removal, is not to be found (l) stoppage of pay and al- mentioned in Section 19 of the Act; lowances until any proved loss or it is to be read therein by virtue of damage accessioned by the oence of Rule 14. Misconduct is not dened which he is convicted is made good. either in the Act or in the Rules. It is not necessary to make a search for 19. According to Section 74, bethe meaning, for it would suce to fore an ocer is awarded any of the refer to State of Punjab & Ors. v. punishments specied in clauses (a) Ram Singh, Ex-Constable, wherein to (c) of Section 71, he shall be senthe term misconduct as used in tenced to be cashiered. Other proviPunjab Police Manual came up for sions in this chapter are not relevant the consideration of this court. Havof our purpose. ing referred to the meaning of mis20. Under Section 101, any conduct and misconduct in oce person subject to this Act, who is as dened in Blacks Law Dictionary charged with an oence, may be and Iyers Law Lexicon, this court taken into military custody. Chap- held:ter X deals with Courts Martial. .... the word misconduct Therein under Section 121, any perthough not capable of precise deson subject to this Act having been nition, on reection receives its conacquitted or convicted of an oence notation from the context, the delinby a court martial or a criminal court quency in its performance and its efshall not be liable to be tried again fect on the discipline and the nature for the same oence. Section 122, of the duty. It may involve moral provides period of limitation for comturpitude, it must be improper or mencement of trial by court martial. wrong behavior; unlawful behavior, Once the period prescribed has exwilful in character; forbidden act, a pired a trial before a court martial transgression of established and decannot be commenced. nite rule of action or code of conduct 21. Under Section 153 no nding but not mere error of judgment, careor sentence of a court martial shall be lessness or negligence in performance valid unless conrmed as provided by of the duty; the act complained of the Act. Section 158 gives power to bears forbidden quality or characconrming authority to mitigate, re- ter. Its ambit has to be construed mit or commute sentences. Section with reference to the subject matter 165 empowers the Central Govern- and the context wherein the term oc-

407 curs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious eect in the maintenance of law and order. 23. In the context in which then term misconduct has been used in Rule 14, it is to be given a wider meaning and any wrongful act or any act of delinquency which may or may not involve moral turpitude, would be misconduct, and certainly so, if it is subversive of army discipline or high traditions of army and/or if it renders the person unworthy of being retained in service. The language of sub-rule(2) of Rule 14 employing the expression the reports on an ofcers misconduct uses reports in plural and misconduct in singular. Here plural would include singular and singular would include plural. A single report on an ocers misconduct may invite an action under Section 19 read with Rule 14 and there may be cases where there may be more reports than one on a singular misconduct or more misconducts than one in which case it will be the cumulative eect of such reports on misconduct or misconducts, which may lead to the formation of requisite satisfaction and opinion within the meaning of sub-rule (2) of Rule 14. 24. The learned counsel for the respondents submitted that a court martial convened under the Act is a high powered special tribunal vested with very wide jurisdiction. It cannot appropriately be called either a criminal court merely or a service tribunal simply. It is a combination of the two and much more than that. A perusal of the provisions of Section 71 clearly indicates that court martial is empowered to inict such punishments which are otherwise inicted by a competent criminal court while there are punishments such as those provided by clauses (d) to (l) thereof which belong to the realm of service jurisprudence and can ordinarily be inicted y way of penalty for a misconduct which a person in service may be found to have committed. The learned counsel went on to submit that the scheme of the Act and the Rules thus shows that a person subject to the Act having committed a misconduct amounting to an oence within the meaning of Chapter VI should ordinarily be subjected to trial by a court martial. And if that has been done, then the power to act under Section 19 is taken away. So also if the period of limitation for trial by court martial is over, then also by necessary implication resort cannot be had to Section 19. We nd it the dicult to agree with the submission so made. 25. In Union of India v. S.K. Rao, , the gross misconduct alleged against the delinquent ocer was of having actively abetted in the attempt of brother ocers daughter eloping with a sepoy. An inquiry into the grave misconduct was made by Court of Inquiry. The Chief of the Army Sta considered the conduct of the ocer unbecoming of an ocer. He

408

Union Of India v. Harjeet Singh Sandhu 2001 court martial under Section 71 of the Army Act, 1950. The power conferred by Section 19 on the Central Government and the power conferred on court martial by Section 71 are clearly distinguishable from each other. They are not alternatives to each other in the sense that the exercise of one necessarily excludes the exercise of the order. The distinction may be set out in a tabular form:Sr. No. Name of the candidate Party aliation No. of valid votes polled 1. Rao Om Parkash, Engineer BSP 5819 2. Sh. Jagat Singh JD[U] 113 3. 31755 Sh. Narender Singh INC

also formed an opinion that trial of the ocer by a general court martial was inexpedient and, therefore, he ordered an administrative action to be taken under Rule 14 by removing the ocer service. The order of removal was put in issue on the ground that the Army Act contained specic provisions, viz. Section 45, for punishment for unbecoming conduct and as Section 19 itself suggests that power being subject to the provisions of this Act, Section 19 would be subject to Section 45 and therefore the Central Government would have no power to remove a person from, the service in derogation of the provision of Section 45. The plea was repelled by this court holding that the power under Section 19 is an independent power. Though Section 45 provides that on conviction by court martial an ocer is liable to be cashiered or to suer such less punishment as mentioned as the Act, for removal from service under Section 19 read with Rule 14, a court martial is not necessary. The court specically held that the power under Section 19 is an independent power and the two Section 19 and 45 of the Act, therefore, mutually exclusive.

4. Sh. J.D. Yadav HVP 500 5. Smt. Santosh D/o Sh. Bagwan Singh INLD 31421 6. Sh. Yogesh Kumar RJD 205 7. Sh. Laxmi Narain SP 785 8. Sh. Vinod Kumar SJP [R] 212 9. Sh. Om Parkash Yadav IND 18 10. Sh. Om Parkash IND 178 11. Sh. Naresh Yadav IND 19855

12. Comrade Balbir Singh IND 26. It is true that some of 476 the punishments provided by Sec13. Sh. Ram Singh IND 111 tion 71 as awardable by court mar14. Sh. Rama Nand Sharma IND tial are not necessarily punishments 194 in the sense of the term as ordi15. Smt. Santosh W/o Yudhvir narily known to criminal jurisprudence, but are penalties as known to IND 40 service jurisprudence. The fact re16. Sh. Satbir IND 92 mains that such penalties have been 17. Sh. Surender IND 18 treated as punishments awardable by

409 27. It is relevant to note that when an oence is triable by a criminal court and also by a court martial, each having jurisdiction in respect of that oence, a discretion is conferred by Section 125 on the ocer commanding to decide before which court the proceedings shall be instituted. The Parliament has obviously made no such provision in the Act for the exercise of a choice between proceeding under Section 19 or convening of a court martial. The element of such option, coupled with the factors which would be determinative of the exercise of option, is provided by Rule 14(2). When an ocer, subject to the Army Act, is alleged to have committed a misconduct, in view of Section 125 and Section 19 read with Rule 14, the following situation emerges. If the alleged misconduct amounts to an oence including a civil oence, Section 125, vests discretion in the ocer commanding the Army, Army Corpse Division or independent Brigade in which the accused person is serving or such other ocer as may be prescribed, to decide before which court the proceedings shall be instituted, i.e. before a court martial or a criminal court. If the decision is to have the delinquent ocer tried by a criminal court and if the is acquitted by the criminal court, then that is the end of the matter. The pronouncement of judicial verdict would thereafter exclude any independent disciplinary action being taken against the delinquent ocer on the same facts which constituted the misconduct amounting to an oence for which he was charged before the criminal court. In the event of his being convicted if some further disciplinary action is still proposed to be taken, then it is the conduct of the ocer leading to his conviction (as found by the criminal court) which is capable of being taken into consideration by the Central Government or the COAS under sub-rules (3),(4) and (5) of Rule 14 for the purpose of such action. The facts forming the conduct of the ocer leading to his conviction shall alone form basis of the formation of opinion as to whether his further retention in service is undesirable whereupon he may be dismissed, removed or compulsorily retired from the service in the manner prescribed by the said sub-rules. But, on the other hand, if the initial decision was to have the delinquent oce tried not by a criminal court but a court martial, then under sub-rule (2) of Rule 14 it is for the Central Government or the COAS to arrive at a satisfaction whether the trial of the ocer by a court martial is expedient and practicable whereupon the court martial shall be convened. The Central Government or the COAS may arrive at a satisfaction that it is inexpedient or impracticable to have the ocer tried by court martial then the court martial may not be convened and additionally, subject to formation of the opinion as to undesirability of the ofcer for further retention in the service, the power under Section 19 read with Rule 14 may be exercised. Such a decision to act under Section 19 read with Rule 14 may be taken either before convening the court martial or even after it has been convened and commenced subject to sat-

410

Union Of India v. Harjeet Singh Sandhu 2001 which the order of court martial relates can be raised by way of petition under Section 164. Once the nding and the sentence, if any have been conrmed, the court martial being a special tribunal dispensing military justice, it would not be permissible to exercise additionally the power conferred by Section 19 read with Rule 14 and to inict a penalty thereunder if the court has not chosen to inict the same by way of punishment under Section 71. To permit such a course would be violative of the principle of double jeopardy and would also be subversive of the ecacy of the court martial proceedings, nding and sentence. So long as nal verdict of guilty or not guilty, pronounced by court material and conrmed by competent authority so as to be eective is not available, the power to proceed under Section 19 read with Rule 14(2) exists and remains available to be exercised. 29. The learned counsel for the respondents submitted the term impracticable has been used in Rule 14 in contradistinction with impossible or impermissible and therefore if a trial by court martial though practicable but has been rendered impermissible because of a bar created by the rule of limitation or rendered impossible because of a fact situation then resort cannot be had to Section 19 read with Sub-rule (2) of Rule 14 by treating the impossibility or impermissibility as impracticability. The learned counsel for the respondents went on to submit that even Dharam Pal Kukretys case required reconsideration as in their submis-

isfaction as to the trial by a court martial becoming inexpedient or impracticable at which stage the Central Government or the COAS may revert back to Section 19 read with Rule 14. It is not that a decision as to inexpediency or impracticability or trial by court martial can be taken only once and that too at the initial stage only and once taken cannot be changed in spite of a change in fact situation and prevailing circumstances. 28. Section 127 was to be found in Army as originally enacted which provided that a person convicted or acquitted by a court martial could be tried again by a criminal court for the same oence or on the same facts subject to previous sanction of the Central Government. The provision was deleted by Act No.37 of 1992. This deletion is suggestive of the legislative intent to confer nality to the nding and sentence of court martial subject to their being conrmed and not annulled. Power to conrm nding and sentence of court martial and the power to annual the proceeding on the ground of being illegal or unjust, both provisions read together indicate that the nding and sentence of court martial if legal and just have to be ordinarily conrmed but they may be annulled on the ground of illegality or unjustness. An obligation is cast on the conrming authority to examine the legally and justness of the proceedings before conrming them. Questions of correctness, legality and propriety of the order passed by any court martial and the regularity of any proceedings to

411 sion it does not lay down the correct law. It was urged that to the extent Dharam Pal Kukretys case treats impermissibility as impracticability it is mistaken view . On the other hand, the learned ASG submitted Dharam Pal Kukretys case has correctly laid down the law and mistake has been committed by this court in deciding Radha Krishans case by over looking Dharam Pal Kukretys case and therefore Radha Krishans case must be held to have been decided per incuriam. 30. Let us rst examine what is the meaning of term impracticable in sub-rule(2) of Rule 14? In Major Radha Krishans case this court has held, ...When the trial itself was legally impossible and impermissible the question of its being impracticable, in our view cannot or does not arise. Impracticability is a concept dierent from impossibility for while the latter is absolute, the former introduces at all events some degree of reason and involves some regard for practice. According to Websters Third New International Dictionary impracticable means not practicable; incapable of being performed or accomplished by the means employed or at command. Impracticable presupposes that the action is possible but owing to certain practical diculties or other reasons it is incapable of being performed. The same principle will equally apply to satisfy the test of inexpedient as it means not expedient; disadvantageous in the circumstances, inadvisable, impolitic. It must therefore be held that so long as an oer can be legally tried by a court martial the authorities concerned may, on the ground that such a trial is not impracticable or inexpedient, invoke Rule 14(2). In other words, once the period of limitation of such a trial is over the authorities cannot take action under Rule 14(2). 31. The above passage shows that the learned Judges went by the dictionary meaning of the term impracticable, placed the term by placing it juxta position with impossibility and assigned it a narrow meaning. With respect to the learned judges deciding Major Radha Krishans case, we nd ourselves not persuaded to assign such a narrow meaning to the term. Impracticable is not dened either in the Act or in the Rules. In such a situation, to quote from Principles of Statutory Interpretation (Chief Justice G.P. Singh, Seventh Edition, 1999, pp. 258-259), When a word is not dened in the Act itself, it is permissible to refer to dictionaries to nd out the general sense in which that word is understood in common parlance. However, in selecting one out of the various meanings of a word, regard must always be had to the context as it is a fundamental rule that the meanings of words and expressions used in an Act must take their colour from the context in which they appear. Therefore, when the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings

412

Union Of India v. Harjeet Singh Sandhu 2001 ticable (of a course of action) is dened to mean impossible in practise to or carry our. The same dictionary states the usage of the term in these words - Although there is considerable overlap, impracticable and impractical are not used in exactly the same way. Impracticable means impossible to carry out and is normally used of a specic procedure or course of action, ...Impractical, on the other hand, tends to be used in more general senses, often to mean simply unrealistic or not sensible. 33. We may with advantage refer to certain observations made by the Constitution Bench (majority view) in Union of India & Anr.v. Tulsi Ram Patel, . Article 311(2), proviso (b) contemplates a government servant being dismissed or removed or reduced in rank, dispensing with a enquiry, if it is not reasonably practicable to hold such enquiry. The Constitution Bench dealt with meaning of the expression reasonably practicable and the scope of the provision vide para 128 to 138 of its judgment. The Constitution Bench pertinently noted that the words used are not reasonably practicable and not not practicable nor impracticable (as is the term used in sub-rule(2) of Rule 14 of the Army Rules). Thus, the decision in Tulsi Ram Patels case may not ipso facto throw light on the issue before us but some of the observation made by the Constitution Bench can usefully be referred to. A few illustrative cases mentioned by the Constitution Bench, wherein it may be not reasonably practicable to hold an en-

a word is capable of, according to lexicographers. As stated by KRISHNA IYER, J. Dictionaries are not dictators of statutory construction where the benignant mood of a law, and more emphatically, the denition clause furnish a dierent denotation. In the words of JEEVAN REDDY,J.: A statute cannot always be construed with the dictionary in one hand and the statute in the other. Regard must also be had to the scheme, context and to the legislative history. JUDGE LEARNED HAND cautioned not to make a fortress out of the dictionary but to more attention to the sympathetic and imaginative discovery of the purpose or object of the statute as a guide to its meaning. 32. In Words and Phrases (Permanent Edition, Vol.20, page 480461) it is stated that the term impossible may sometimes be synonymous with impracticable; impracticable means not practicable, incapable of being performed or accomplished by the means employed or at command; impracticable is dened as incapable of being eected from lack of adequate means, impossible of performance, not feasible; impracticable means impossible or unreasonably dicult of performance, and is a much stronger term than expedient. In Law Lexicon (P.Ramanatha Iyer, Second Edition, page 889) one of the meanings assigned to impracticable is not possible or not feasible: at any rate means something very much more than not reasonably practicable. In The New Oxford Dictionary of English (1998, at p.918), imprac-

413 quiry, are:(i) a situation which is of the creation of the concerned government servant himself or of himself acting in concert with others or his associates; (ii) though, the government servant himself is not a party to bringing about of a situation yet the exigencies of a situation may require that prompt action should be taken and not taking prompt action may result in the trouble spreading and the situation worsening and at time becoming uncontrollable and necessary concomitance of such an action resulting from a situation which is not of the creation of the authorities. 34. The Constitution Bench has further held that disciplinary enquiry is not expected to be dispensed with lightly or arbitrarily or out of ulterior motive or merely to avoid the holding of an enquiry or because the departments case against the government servant is weak and must fail. It is not necessary that a situation which the holding of an enquiry not reasonably practicable should exist before the disciplinary enquiry is initiated against the government servant; such a situation can also come into existence subsequently during the course of an enquiry. Reasonable practicability of holding an enquiry is a matter of assessment to be made by the disciplinary authority. The satisfaction of the authority is not immune from judicial review on well settled parameters of judicial review of administrative decisions. However,if on the satisfaction reached by the authority two views are possible, the court will decline to interfere. 35. As the term used in subrule (2) of Rule 14 is impracticable and not not reasonably practicable, there is more an element of subjectivity sought to be introduced by this provision in the process of arriving at the satisfaction, obviously because the rule is dealing with the satisfaction arrived at by the Central Government or the Chief of the Army Sta, in the matter of disciplinary action on account of misconduct committed by an ocer of Army which decision would have been arrived at by taking into consideration the then prevailing fact situation warranting such decision after considering the reports on ocers misconduct. 36. The learned Additional Solicitor General cited a few examples wherein the trial by court martial may be rendered impracticable, to wit:i) a misconduct amounting to an oence having been rendered not triable by court martial by expiration of the period of limitation prescribed by Section 122; ii) a court martial having been dissolved after its commencement on account of the number of ocers required by the Act to validly constitute a court martial being reduce below the minimum or any other exigency contemplated by Section 117 occurring and the court martial cannot be convened to commence afresh on account of bar of limitation under Section 122 having come into play; iii) The Central Government, the Chief of the Army Sta or any prescribed ocer having annulled the

414

Union Of India v. Harjeet Singh Sandhu 2001 any bar of limitation on exercise of power conferred by Section 19. We cannot, by an interpretative process, read the bar of limitation provided by Section 122 into Section 19 of Act in spite of a clear and deliberate legislative abstention. However, we have to caution that in such a case, though power under Section 19 read with Rule 14 may be exercised but the question may still be - who has been responsible for the delay? The period prescribed by Section 122 may itself be taken laying down a guideline for determining the culpability of delay. In spite of power under Section 19 read Rule 14 having become available to be exercise on account of a trial by a court martial having been rendered impracticable on account of bar of limitation created by Section 122, other considerations would assume relevance, such as-whether the facts or set of facts constituting misconduct being three years or more old have ceased to be relevant for exercising the power under Section 19 read with Rule 14? If there was inaction on the part of the authorities resulting into delay and attracting bar of limitation under Section 122 can it be said that the authorities are taking advantage of their own inaction or default? If the answer be yes, such belated decision to invoke Section 19 may stand vitiated, not for any lack of jurisdiction but for colourable or malade exercise of power. 39. In illustration (ii), the court martial has stood dissolved for fortuitous circumstance for which no one is to be blamed - neither COAS nor the delinquent ocer. The

proceedings of any court martial on the ground that they are illegal or unjust within the meaning of Section 165 of the Act and by that time the bar of limitation under Section 122 having come into play; iv) Any nding or sentence of a court martial requiring conrmation having been ordered to be revised by order of the conrming authority but in spite of such revision having not been conrmed once again and s subsequent revision of nding or sentence being not contemplated by the provisions of the Act; further a revised (SIC) having been provided by Section 160; v) A person subject to the provisions of Army Act having secured a stay order from a court of law on commencement of court martial and by the time the stay order is vacated by the court of law the bar of limitation provided by Section 122 coming into play. 37. On the meaning which we are placing on the term impracticable as occurring in Rule 14(2) we proceed to provide resolutions to the several problems posed by the illustrations given by the learned ASG. According to us: 38. In illustration (i) the expiry of the period of limitation prescribed by Section 122 renders the trial by court martial impracticable on the wider meaning of the term. There is yet another reason to take this view. Section 122 prescribes a period of limitation for the commencement of court martial proceedings but the Parliament has chosen not to provide

415 delinquent ocer, howsoever grave his misconduct amounting to oence may have been,would go scot free. It would be fastidious to hold that bar of limitation under Section 122 would also exclude the exercise of power under Section 19 read with Rule 14. 40. In illustrations (iii) and (iv) also, in our opinion, the exercise of power under Section 19 read with Rule 14 cannot be excluded. The nding and sentence of the court martial are ineective unless conrmed by the conrming authority. The Act not contemplate that the nding and sentence of a court martial must necessarily be conrmed merely because they have been returned for the second time. Section 165 vests power in the Central Government, the COAS and any prescribed ocer, as the case be, as the case may be, to annul the proceedings of any court martial if the same are found to be illegal or unjust. The delinquent ocer cannot be allowed to escape the consequences of his misconduct solely because court martial proceedings have been adjudged illegal or unjust for the second time. The power under Section 19 read with Rule 14 shall be available to be exercised in such a case though in an individual case the exercise of power may be vitiated as an abuse of power. The option to have a delinquent ocer being tried by court martial having been so exercise and nding as to guilt and sentence having been returned for or against the delinquent ocer by the court martial for the second time, on just and legal trial, ordinarily such nding and sentence should be acceptable so as to be conrmed. Power to annul the proceedings cannot be exercised repeatedly on the sole ground that the nding or the sentence does not meet the expectation of the conrming authority. Refusal to conrm is a power to be exercised, like all other powers to take administrative decision, reasonably and fairly and not by whim,caprice or obstinacy. Exercising power under Section 19 read with Rule 14 consequent upon court martial proceedings being annulled for the second time because of having been found to be illegal or unjust, the exercise would not suffer from lake of jurisdiction though it may be vitiated on the ground of inexpediency within the meaning of Rule 14(2) or on the ground of abuse of power or colourable exercise of power in a given case. 41. In illustration (v), the ball will be in the court of the delinquent ocer. Once stay order has been vacated, in spite of the expiry of limitation for commencement of court martial proceedings under Section 122 of the Act, the option to have the delinquent tried by a court martial or to invoke Section 19 read with Rule 14, depending on the facts and circumstances of an individual case, would still be available to the Central Government or the COAS. In Union of India & Ors. v. Major General Madan Lal Yadav (Retd.) , , this court has invoked applicability of the maxim nulls commode capers potest de injury sua propria - no man can take advantage of his own wrong - to hold that the delinquent ocer hav-

416

Union Of India v. Harjeet Singh Sandhu 2001 missed or removed from service under Section 19, though that action shall be capable of being taken subject to formation of opinion as to the undesirability of person for further retention in service. We nd merit in the submission of the learned ASG. 42. Having thus explained the law and claried the same by providing resolutions to the serveral illustrative problems posed by the learned ASG for the consideration of this Court (which are illustrative and not exhaustive), we are of the opinion that the expiry of period of limitation under Section 122 of the Act does not ipso facto take away the exercise of power under Section 19 read with Rule 14. The power is available to be exercised though in the facts and circumstances of an individual case, it may be inexpedient to exercise such power or the exercise of such power may stand vitiated if it is shown to have been exercised in a manner which may be called colourable exercise of power or an abuse of power, what at times is also termed in administrative law as fraud on power. A misconduct committed a number of years before, which was not promptly and within the prescribed period of limitation subjected to trial by court martial, and also by reference to which the power under Section 19 was not promptly exercised may cease to be relevant by long lapse of time. A subsequent misconduct though less serious may aggravate the gravity of an earlier misconduct and provide need for exercise of power under Section 19. That would all depend on the facts and cir-

ing himself created a situation withholding commencement of trial, he would be estopped from pleading the bar of limitation and the trial commenced on vacating of the judicial order of restraint of court martial shall be a valid trial. The learned Additional Solicitor General pointed out that although in the category of case illustrated by (v) above in case of an oender who ceases to be subject to the Act, the Parliament has by Act No.37 of 1992 amended sub-section (2) of section 123 so as to exclude the time during which the institution of the proceedings in respect of the offence has been stayed by injunction or order from, computing the period of limitation but a similar provision is not made is not made in respect of the period of limitation for trial by court martial of any person subject ot the Act, as the respondents herein are. This deliberate omission by the Parliament to provide for exclusion from calculating period of limitation in Section 122 on the lines of the provision for execution in Section 123 lings strength to his submission that in as much as person subject to the Act would be amenable to Section 19 of the act even after the expiry of the period of limitation for trial, provision for extension in period of limitation under Section 122 was unnecessary. If the expiry of the period of limitation for commencement of court martial was to be given eect to, the consequence to follow would be that the person would not be liable to be inicted with a wide variety of punishments awardable by court martial under Section 71; nevertheless he would be liable to be dis-

417 cumstances of an individual case. No hard and fast rule can be laid down in that behalf. A broad proposition that power under Section 19 read with Rule 14 cannot be exercised solely on the ground of court martial proceedings having not commenced within the period of limitation prescribed by Section 122 of the Act, cannot be accepted. In the scheme of the Act and the purpose sought to be achieved by Section 19 read Rule 14, there is no reason to place a narrow construction on the term impracticable and therefore on availability or happening of such events as render trial by court martial impermissible or legally impossible or not practicable, the situation would be covered by the expression-the trial by court martial having become impracticable. 43. Exercise of power under Section 19 read with Rule 14 is open to judicial review on well settled parameters of administrative law governing judicial review of administrative action such as when the exercise of power is shown to have been vitiated by malades or is found to be based wholly on extraneous and/or irrelevant grounds or is found to be a clear case of extraneous and/or abuse to power or what is sometimes called fraud on power,i.e.where the power is exercised for achieving an oblique end. The truth or correctness or the adequacy of the material available before the authority exercising the power cannot be revalued or weighed by the court while exercising power of judicial review.Even if some of the material, on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material available on which the action can be sustained. The court would presume the validity of the exercise of power but shall into hesitate to interfere if the invalidity or unconstitutionally is clearly demonstrated. If two views are possible, the court shall not interfere by substituting its own satisfaction or opinion for the satisfaction or opinion of the authority exercising the power. 44. We are also of the opinion that Major Radha Krishnas case lays down propositions too brand to be acceptable to the extent in holds that once the period of limitation for trial by court martial is over, the authorities cannot take action under Rule 14(2). We also do not agree with the proposition that for the purpose of Rule 14(2), impracticability is a concept dierent from impossibility (or impermissibility, for that matter). The view of the court in that case should be treated as conned to the fact and circumstances of that case alone. We agree with submission of the learned Additional Solicitor General that the case of Dharam Pal Kukrety being a Three-Judges Bench decision of this court, should have been placed before the TwoJudges Bench which heard and decided Major Radha Krishans case. 45. Reverting back to the two cases under appeal before us, we are of the opinion that High Court was not right in allowing the two writ petitions led by Harjeet Singh Sandhu and Harminder Kumar, respectively,

418

Union Of India v. Harjeet Singh Sandhu 2001 tion against the two respondents are referable to late 17s. By this time a period of more than 20 years has elapsed in between. Before any decision to initiate disciplinary action against any of the two respondents is taken, the conduct and behavior of the respondents is taken, the conduct and behavior of the respondents concerned during the intervening period shall also be taken into consideration while deciding upon the desirability of proceeding further in the matter at this belated stage, and keeping in view, of course, the requirement of military discipline and the high traditions of the Indian Army. No order as to the costs.

by placing reliance on the decision of this court in Major Radha Krishans case and holding that the exercise of power under Section 19 read with Rule 14 by the COAS was vitiated solely on account of the bar of limitation created by Section 122 of the Act. Both the judgments of the High Court, which are under appeal, are accordingly set aside and the writ petitions led by the two respondents are directed to be dismissed. However, consistently with the observation made by this court vide para 18 of Major Dharam Pal Kukretys case, we would like to impress upon the Chief of the Army Sta and the Central Government,as the case may be, that the incidents leading to ac-

Chapter 35

Union Of India v. R.K. Sharma 2001

Union Of India And Ors. v. R.K. Sharma on 9 October, 2001 Equivalent citations: AIR 2001 SC 3053, 2001 (91) FLR 1006, JT 2001 (9) SC 76 Author: S Variva Bench: K Thomas, S Variave JUDGMENT S.N. Variva, J. 1. Leave granted. 2. Heard parties. 3. These Appeals are against an Order dated 16th March, 2001 by which two Appeals, one led by the Appellant (herein) and the other led by the Respondent (herein), were dismissed. 4. Briey stated the facts are as follows: 5. The Respondent was, at the relevant time, serving as Deputy Commandant of Assam Ries. On 28th November, 1986 he was served with a charge sheet. Thereafter a General Court Martial was held and the Respondent was found guilty of four of the charges. The penalty of dismissal from service was imposed on the Respondent. The Central Government dismissed the Appeal led by the Respondent then led a Writ Petition in the High Court. By an Order dated 14th October, 1999, a Single Judge of the High Court Martial had been properly conducted and that there was no breach of principles of natural justice. It was further held that the four charges had been established in the General Court Martial and that the Respondent was liable for punishment. It was however held that having regard to the nature and degree of the oences established the extreme and severe punishment of dismissal from service was violative of the provisions of Section 72 of the Army Act, 1950. The order of dismissal was set aside and the matter was sent back to the General Court Martial for awarding any lesser punishment than dismissal from service. It was directed that the Respondent would not receive any salary and allowances for the period when he was out of service.

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Union Of India v. R.K. Sharma 2001 itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous deance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review. 9. Based on the above authorities the Division Bench has held that the sentence awarded was too harsh considering the nature of the allegation and the charge established. The Division Bench has also directed that if the original General Court Martial was not available, as two of its members have retired, then another General Court Martial could be constituted with available members for purpose of imposing a lesser punishment. Being aggrieved by this Order the Appellants have led this Appeal.

6. Both the Appellant and the Respondent led Appeals. The Appellate Court refused to grant any stay to the Appellants herein. The Appellants, therefore, approached this Court. This Court by an Order dated 7th August, 2000 granted an interim stay. This was then conrmed by an Order dated 16th October, 2000. By the Order dated 16th October, 2000 the High Court was requested to dispose of the Appeals expeditiously. 7. The Division Bench has, in the impugned Order, relied upon the authority of this Court in the case of Bhagat Ram v. State of H.P. , for proposition that the penalty must be commensurate with the gravity of mis-conduct and that any penalty disproportionate to the gravity of mis-conduct would be violative of Article 14 of the Constitution. To be noted that this case was not under the Army Act, but in respect of a civil servant.

8. The Division Bench also relied 10. In order to consider the corupon the following observations in the case of Ranjit Thakur v. Union rectness of the impugned Order it is necessary to see the charges which of India : have been held proved. The four Judicial review generally speakcharges read as follows: ing, is not directed against a decision, First Charge AN ACT PREJUbut is directed against the decision DICIAL TO making process. The question of choice and quantum of punishment is Army Act GOOD ORDER AND within the jurisdiction and discretion MILITARY of the Court Martial. But the senSection 63 DISCIPLINE tence has to suit the oence and the In that he, oender. It should not be vindictive at eld, on 31 Oct 84 while being or unduly harsh. It should not be so the Ocer Commanding A Coy, 11 disproportionate to the oence as to shock the conscience and amount in Assam Ries on receipt of signal No. O 2140 dated 31 Oct 84 from Tac

421 HQ 11 Assam Ries directing Coy FALSE Cdrs to visit fwd posts immediately STATEMENT to check alertness and report all OK In that he, did not himself visit the fwd post but at eld, on 07.01.85, while being improperly detailed JC-111310 Sub the October Commanding A Coy GS Panthi, the Senior JCO of the in Tour Diary stated that he left Coy for the task. Manigong on 26 No 84 for Sheet well Second Charge BEING AN OFknowing the said statement to be FICER false. Army Act BEHAVING IN A 11. At this state the Sections of MANNER the Army Act, 1950, on which these Section 45 UNBECOMING HIS charges are framed, may be looked POSITION at. The rst charge is based on SecAND EXPECTED OF HIM. tion 63. Section 63 provides for violation of good order and discipline. In that he, Under Section 63 if such a charge at eld, between the period 14 is found proved, then on conviction Oct 84 to 30 Nov 84 drew ration for by Court Martial, the person found personal consumption of Rs. 930.37 guilty could be sentenced to suer (Rupees Nine hundred thirty and imprisonment for a term which may paise thirty seven) only from the extend to seven years or to some Quartermaster A Coy but did not other lesser punishment. The second pay for the same. charge is under Section 45. It is in Third Charge IN A TOUR DI- respect of unbecoming conduct. The ARY punishment is dismissal or such lesser Army Act MADE BY HIM punishment as is mentioned in the Act. The third and fourth charges KNOWINGLY Section 57(a) MAKING A are under Section 57. They relate to falsifying ocial documents and FALSE making false declarations. On conSTATEMENT viction the punishment could be for In that he, a term which may extend to 14 years At eld, on 17 Dec 84 while be- or any other lesser punishment. ing the Ocer Commanding A Coy 12. Section 72 of the Army Act, in his Tour Diary stated that he left 1950, reads as follows: Man going on 20 Oct 84 for Tatadege 72. Alternative punishments well knowing the said statement to awardable by court martial.- Subject be false. Fourth Charge IN A TOUR to the provisions of this Act, a court DIARY martial may on convicting a person Army Act MADE BY HIM subject to this Act of any of the ofKNOWINGLY fences specied in Secs. 34 to 68 inSection 57(a) MAKING A clusive, award either the particular

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Union Of India v. R.K. Sharma 2001 23. Though court martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution the court martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for the matter any court must stay its hands. Proceedings of a court martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court martial remains to a signicant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court martial for an act which is an offence under the Act. Court Martial discharges judicial function and to a great extent is a court where provisions of Evidence Act are applicable. A court martial has also the same responsibility as any court to protect the rights of the accused charges before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if nor

punishment with which the oence is state in the said sections to be punishable or in lieu thereof, any one of the punishments lower in the scale set out in Sec. 71, regard being had to the nature and degree of the offence. 13. Under Section 71 various punishments are prescribed according to scale. One of them, at item (e) is dismissal from service. Above this at items (a) to (d) are: (a) death; (b) transportation for life or for any period not less than seven years; (c) imprisonment, either rigorous or simple, for any period not exceeding fourteen years; (d) cashiering, in the case of ocers. Various other punishments with which we are not concerned are prescribed after item (e). Thus it is to be seen that dismissal from service is a lesser punishment that imprisonment for either 7 years or 14 years as contemplated under Sections 57 and 63 of the Army Act, 1950. 14. The law on the subject is aptly set out in the case of Union of India v. Major A. Hussain . This was a case where a Major had been court martialled and dismissed from service. The High Court quashed the Court Martial and the sentence on the ground that the delinquent had been denied a reasonable opportunity to defend himself. This Court, after considering various Army Orders, Rules and Provisions of the Army Act, concluded that the Court Martial had been properly held. It was then held as follows:

423 more than a criminal trial provides to the accused. When there is sucient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court martial unless it is shown that the accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sucient, court martial has jurisdiction over the subject-matter and has followed the prescribed procedure and is within its power to award punishment. 15. As stated above, both the single Judge as well as the Division Bench have held that the four charges set out have been proved and that he Respondent was guilty of those charges. Having so held it was not open to the Court to have interfered in the sentence. The awarding of sentence is within the powers of the Court Martial. These are not matters in which Court should interfere. 16. In our view, the observation in Ranjit Thakurs case (supra) extracted above, have been misunderstood. In that case the facts were such that they disclosed a bias on the part of the Commanding Ocer. In that case the Appellant Ranjit Thakur had fallen to of favour of the Commanding Ocer because he had complained against the Commanding Ocer. For making such a complaint the Commanding Ocer had sentenced him to 28 days rigorous imprisonment. While he was serving the sentence he was served with another charge-sheet which read as follows: Accused 1429055-M Signalman Ranjit Thakur of 4 Corps Operating Signal Regiment is charged with Army Act Disobeying lawful command given by his Section 41(2) superior ocer In that he At 15.30 hrs on May 29, 1985 when ordered by JC 106251-P Sub Ram Singh, the orderly Ocer of the same Regiment to eat his food, did not so. 17. On such a ridiculous charge rigorous imprisonment of one year was imposed. he was then dismissed from service, with the added disqualication of being declared unt for any future civil employment. It was on such gross facts that this Court made the observations quoted above and held that the punishment was so strikingly disproportionate that it called for interference. The above observations are not to be taken to mean that a Court can, while exercising powers under Article 226 or 227 and/or under Article 32, interfere with the punishment because it considers the punishment to be disproportionate. It is only in extreme cases, which on their face show perversity or irrationality that there can be judicial review. Merely on compassionate grounds a Court should not interfere.

424

Union Of India v. R.K. Sharma 2001 Assam Ries had received a signal to visit the forward post, check alterness and report all OK. It is not denied that the signal had been received. It has been proved that the Respondent did not visit the forward post. The Respondent improperly detailed JCO of the Commanding Ocer breaches orders received from the Head Quarters how can discipline be maintained in the Army. 20. Mr. J. M. Sharma submitted that during the period, i.e. in October 1984, there was an operation, known as operation Ran Vijay, in progress. He submitted that as a result of the operation the troops were already on high alert. He submitted that A Company had four forward posts. He submitted that just a few days before the receipt of the signal, the Respondent had already visited two of the forward posts viz. Tatadege and Henakar. He submitted that as the troops were already on high alert and as be had just returned back from two of the forward post the Respondent sent the JCO to check alertness in the remaining two forward posts. He further submitted that there was to be a visit, to the A Company, of a VIP and the Respondent was therefore required to remain in Manigong. He submitted that for that reason also the Respondent could not personally visit the forward posts. It was further submitted that in that area apart from A Company, there were three other Companies, namely B, C and D Companies. He submitted that the Commandants of C Company and D Company had also

18. We nd that the lower Court erred in coming to the conclusion that the punishment of dismissal was violative of provisions of Section 72 of the Army Act, 1950. Section 72 merely provides that the Court Martial may, on convicting a person, award either the punishment which is provided for the oence or any of the lesser punishment set out in the scale in Section 71. Section 72 does not set out that in all cases, a lesser punishment must be awarded. In other words, merely because a lower punishment is not granted, it would not mean that the punishment was violative of Section 72. In any case, in this case, under Section 63 there could have been a punishment of imprisonment for a term which may extend to 7 years. Under Section 57 there could have been a punishment for imprisonment for a term which may extend to 14 years. The charges under Sections 57 and 63 had been held to be proved. The General Court Martial could have imposed a punishment of imprisonment. The General Court Martial has chosen to give a lower punishment of dismissal from service. The Court below should not have interfered on the erroneous assumption that provisions of Section 72 of the Army Act, 1950 had been violated. 19. Even otherwise, in our view, both the Courts below have erred in coming to the conclusion that the sentence awarded was too harsh considering the nature and degree of the oence established. The rst charge, as set to here in above, indicates that the Respondent, who was the Commanding Ocer of A Company 11

425 not visited the forward post after receipt of signal. He submitted that therefore the charge was not that serious and that this was the factor which was taken into consideration by both the Courts below. Mr. Sharma further submitted that even the other charges were not a very serious nature inasmuch as the second charge only related to non payment of a small sum of Rs. 930.37. He submitted that the third and fourth charges only related to making entries in the tour Diary maintained by the Respondent. that a false entry had been made to show that the Respondent had gone to those posts when in fact he had not gone there. Not only did the Respondent not obey the command from the Headquarters but he falsied records in order to make out a case that he had already gone to two of the forward posts. These are very serious aances. These are oences for which the General Court Martial would have been justied in awarding imprisonment. The General Court Martial took a lenient view by merely dismissing him from service. There 21. We are unable to accept the was just no justication for interfersubmissions of Mr. Sharma, It has to ence by the High Court. 22. Mr. Sharma next submitbe immediately noted that the Company Commandants of C and D ted that the General Court Martial Companies had stayed back after get- was not properly convened. When ting permission from the Head Quar- asked whether such a contention was ters. The Respondent did not apply taken up in the Writ Petition, Mr. for any permission. The further case Sharma placed reliance on the followthat the Respondent was required to ing observations in the Judgment of stay back because a VIP was to visit the Single Judge: the A Company is also of no subThe petitioner vehemently arstance. The VIP was to visit only gued that preliminary hearing when on 5th November. By that time the the summary evidence was recorded, JCO, who had been improperly de- the provisions of rules 22, 23 and 24 puted by the Respondent, had al- of the Army Rules, 1954, as well as ready visited the forward posts and Army Order 70/84 were not strictly come back. Thus the Respondent followed. In this context, he pointed could also have visited the post and out that the Army Order 70/80 prereturned well in time to receive the scribed a form which was required to VIP. It is also not possible to accept be lled up by the Commanding Othe case that the Respondent had al- cer at the time of hearing of a charge ready visited two of the forward posts against a person subjected to Army a few days earlier. It is to be seen Act, 1950, but the said from was not that the third Charge is in respect duly lled up by the Commanding of making a false entry in the tour Ocer. diary to show that the Respondent 23. We are unable to accept that had gone to the forward posts. That the above observations show that in charge was proved. This showed the Writ Petition there was a chal-

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Union Of India v. R.K. Sharma 2001 now be urged before this Court for the rst time. We therefore did not permit Mr. Sharma to argue this point. 24. Under these circumstances, we set aside the Order passed by the learned single Judge as well as the impugned Order. The Writ Petition led by the Respondent shall stand dismissed. There will be no Order as to costs.

lenge to the constitution of the General Court Martial. The above observations are in respect of a preliminary hearing under rules 22, 23 and 24 of the Army Rules, 1954. This is a hearing which precedes the Court Martial. In any event the High Court has held against the Respondent on this point and no Appeal was led by him. This point not having been raised in the Writ Petition cannot

Chapter 36

Union Of India v. P.D. Yadav 2001

Union Of India And Anr. v. P.D. Yadav on 16 October, 2001 Equivalent citations: 2001 IXAD SC 30, 2001 (91) FLR 961, JT 2001 (8) SC 617 Author: S V Patil Bench: B Kirpal, S V.Patil, P V Reddi JUDGMENT Shivaraj V. Patil, J. 1. In short the facts leading to ling of these appeals, are as stated below. Civil Appeal No. 7805/1997 The respondent herein joined Navy as a Sailor in April, 1965 and was commissioned in October, 1980. On account of certain alleged misconduct and irregularities, he was tried by General Court Martial on ve charges. He was found guilty of the charge 2, 3, 4 and 5 and consequently a penalty of dismissal from service was imposed on him on 26.2.1990. He was given a show-cause notice on 21.6.1991 under Regulation 15(2) on the Navy (Pension) Regulations, 1964 as to why his pensionary benets should not be forfeited. He sent a reply on 24.7.1991. The appellants informed him on 7.5.1992 that the action will be taken soon pursuant to the show-cause notice issued. However, without waiting any further, he led a writ petition on 20.1.1993 in the High Court. After the ling of the said writ petition, an order was passed on 28.3.1994 forfeiting 50% of the pensionary benets. The High Court partly allowed his writ petition and remanded the case giving certain directions to the appellants by the order dated 4.3.1997. Feeling aggrieved by the same, the appellants are before this Court in this appeal. Civil Appeal No. 7806/1997 The respondent was commissioned in the Indian Army on 30.6.1963 and was due to retire on 31.3.1989. On 17.2.1988, he was tried by General Court Martial on certain charges and was dismissed from service on 13.6.1988 under Section 71 of the Army At. He submitted papers for payment of pension

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Union Of India v. P.D. Yadav 2001 have sent a reply to the show cause notice but the order was passed forfeiting his pensionary benets stating that he had not sent any reply to the show-cause notice. The High Court quashed the impugned order forfeiting is pension and directed the appellants for re-consideration and passing fresh order. Aggrieved by the said order of the High Court dated 4th March, 1997, this appeal is led. Civil Appeal No. 7808 of 1997 The respondent herein entered Army service and was commissioned on 12.6.1960. He was promoted to Selection Grade rank of Acting Brigadier in December, 1986. He retired from services on 31.5.1990 on attaining the age of superannuation. He was tried by General Court Martial between 26.5.1990 to 26.9.1990 on certain charges of misconduct. Charges 2, 3, 5, 9 10 were held proved. Consequently he was ordered to be (i) cashiered (ii) to suer rigorous imprisonment for six months and (iii) to forfeit all arrears of pay and allowances and other public money due to him at the time of cashiering. The rst two of the sentences were conrmed by the Chief of Army Sta on 12.2.1991 but the third one was remitted. Consequently, it stood set aside. After retirement on 31.5.1990, he was initially paid provisional pension w.e.f. 1.6.1990. However, a show-cause notice was issued to him on 13.11.1992 under Regulation 16(a) of Army Regulations. He sent a reply to the said notice. Since no order was passed for quite some time, he sent reminders to the authorities. A nal order was

stating that he had qualifying service. Since pension was not given to him, he led Civil Writ Petition No. 1249/90 in the High Court on 3.3.1990. On 16.4.1991, a show-cause notice was issued under Section 16(a) of the Pension Regulations of the Army (Part-I Proposing forfeiture of pension on the ground that he was dismissed from service. He submitted reply to the said show-cause notice. However, the President of India by order dated 22.7.1992 under said Regulation 16(a) forfeited 50% of the pensionary benets. He led Writ Petition No. 2866/90 for amendment of the writ petition challenging the said order. The High Court by the impugned order quashed the order dated 22.7.1992 and directed the appellants to reconsider his case in the light of the directions given in the judgment. Hence this appeal. Civil Appeal No. 7807 of 1997 The respondent was commissioned in the Army as Engineer Graduate Ocer on 11.1.1968. He was tried by General Court Martial on the allegation of splitting purchase orders for shelters, to bring them within the nancial limits and for making purchases at rates higher than scheduled and sanctioned rates. After trial by General Court Martial he was cashiered on 11.3.1994 and was directed to undergo rigorous imprisonment for two months. He forwarded papers on 29.6.1994 to the authorities for grant of pension. On 22.2.1995, a show-cause notice was issued to him under Regulation 16(a) of Army Pension Regulations for forfeiture of pension. He claimed to

429 passed by the President on 4.1.1994 forfeiting the entire pensionary benets. Questioning this order, he led Civil Writ Petition No. 2813/1994 in the High Court. The High Court quashed the order impugned in the writ petition and directed the appellants to reconsider and pass fresh orders in the light of certain directions given. Hence this appeal is led by the appellants aggrieved by the impugned judgment. an error in stating that the authorities did not consider in forfeiting pension, partly or fully, that the services of the respondents up to the date of commission of oences were satisfactory and that the Court Martial did not inict the punishment of forfeiture of services.

4. The orders passed by the President of India forfeiting pension were neither arbitrary nor unreasonable; in fact they were passed after taking 2. Mr. Mukul Rohtagi, learned into consideration the nature of ofAdditional Solicitor General, urged fences, the punishments awarded and that all relevant factors. 1. Section 71 and Regulation 16(a) are distinct and operate in different elds. While Section 71(h) contemplates a punishment at the conclusion of the Court Martial, Regulation 16(a) contemplates a stage subsequent to the awarding of punishment by Court Martial and its conrmation; Regulation 16(a) deals with the pension of an ocer, who is cashiered, dismissed or removed from service. 2. Though the Army Pension Regulations are non-statutory in character the pensionary benets are provided for and payable under them; these very Regulations provide for forfeiting pension in given situations; in other words, the Regulations which provide for grant of pension also provide for taking it away on justiable ground; further these Regulations may not have statutory force but they are not contrary to any statutory provisions under the Act or the Rules. 3. The High Court committed 5. (a) The High Court has also failed to see that the right to grant pension is not with the Court Martial under Section 71; the grant of pension is within the powers of the President under Regulations, who can grant/forfeit pension to the ofcers who are cashiered, dismissed, removed or called upon to retire. (b) In passing the orders forfeiting pension of the respondents, partly or fully, well established procedure was followed in that a show cause notice was issued; on receipt of reply to the show cause notice from the respondents and after consideration orders were passed. 6. The High Court was also not right in saying that the services of the respondents cannot be termed as unsatisfactory because of their involvement in the cases of misconduct; the High Court was not right in giving directions to the appellants to reconsider the matter after issuing a supplementary show cause notice. 3. He added that Army Pension

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Union Of India v. P.D. Yadav 2001 is inconsistent with and contrary to Section 71(h) and 71(k) of the Army Act and Rules 14(5) and 15 of the Army Rules. 3. If the Court Martial has not thought t to forfeit the pensionary benets then those benets cannot be forfeited by the non-statutory regulations and there has been undue delay in passing the order forfeiting the pension in some cases.

Regulation 16(a) and Navy Pension Regulation 15(2) are similar in content except that the authority to pass order under Regulation 16(a) vests with the President and whereas under Regulation 15(2) it vests in the Central Government; the Army Pension Regulations are non-statutory and Navy Pension Regulations are statutory; hence the same submissions cover the cases dealt with Army Pension Regulations and Navy Pension Regulations.

4. The orders passed forfeiting the pensionary benets, fully or par4. In short and substance the tially, as the case may be, are unreaarguments advanced by the learned sonable and without proper applicacounsel on behalf of the respondents tion of mind to the facts and circumare:stances of the case. 1. Pension is not a bounty or 5. Since no punishment was a charity given by the State; it is imposed forfeiting pensionary benea deferred portion of compensation ts under Section 71(h) or (k) by for services rendered; right to re- the General Court Martial, it was ceive pension is a Fundamental Right not open to pass orders forfeiting and is right to property under Arti- pension, partially or fully, exerciscle 300A of the Constitution of India ing power under Regulation 16(a); it which cannot be taken away except may amount to imposing punishment by authority of law. twice in respect of the same charges 2. Under the Army Act it is only the Court Martial, which can order for forfeiture of service for purposes of increased pay, pension or any other prescribed purpose under Section 71(h) or 71(k) of the Army Act; in case service of army personnel is terminated on the administrative side (without holding court martial) then the statutory authority to decide forfeiture or the grant of these benets is the competent authority under Rule 14(5) and 15 of the Army Rules. Therefore, there is no question of applying non-statutory pensionary regulations to the respondents; alternatively Regulation 16(a) of misconduct. 5. It may be necessary to narrate in brief as to the nature of charges framed against the respondents and the punishment imposed on them to appreciate the contentions urged on behalf of the respondents as to the validity, reasonableness and justication in passing the orders forfeiting pension. 6. Five charges were framed against P.D. Yadav (respondent in CA 7805/97). He was found guilty in respect of charges 2 to 5. The said charges 2 to 5 are:2. Did on Twenty ninth day of

431 September one thousand nine hundred eighty nine at about 1401 hours wilfully disobey the lawful command of Lieutenant Commander (Special Duties Communication) Man Singh Rawat (81917 Z), his superior ocer in the oce of the Ocer-in-Charge, Communication center, Delhi when ordered to go out of the said oce and to come afterwards and thereby committed an oence punishable under Section 47(a) of the Navy Act, 1957. of the Navy Act, 1957. 7. Twelve charges were framed against B.S. Ahluwalia (respondent in CA 7806/97) but the Court Martial found him guilty of charges 5, 7 and 10 and with certain variations of charges 1, 2 and 3. They are:1. At Dehradun on 22.2.1985, while employed as CWE, Dehradun and having already given technical sanction for Table Dining (OR) FD165 @ 450/- per table, with intent to defraud, vide Contract Agreement No. CWE/CLT 23 of 84-85, entered into an agreement with M/s. Doon Furnishers for 496 dining tables @ Rs. 760/- per table and thereby caused loss to the State to the tune of Rs. 1,38,800/-.

3. Did on the Twenty ninth day of September one thousand nine hundred eighty nine at about 1402 hours behave in a disorderly manner in the oce of the Ocer-in-Charge. Communication center, Delhi and thereby committed an oence punishable un2. At Dehradun, on 21.6.1985, der Section 48(c) of the Navy Act, while employed as CWE, Dehradun 1957. with intent to defraud vide CA 4. Did on the Twenty ninth No. CWE/DDN/6 of 85-86, nalday of September one thousand nine ized a contract agreement with Allied hundred eighty nine at about 1402 Traders for supply and xing of ceilhours strike Lieutenant Comman- ing fans at an exorbitant rate of Rs. der (Special Duties Communication) 498/- per fan, while DGSD contract Man Singh Rawat (81917 Z) his supe- rate was Rs. 413.56 per fan. rior ocer in the Oce of the Ocer3. At Dehradun, on 21.6.1985, in-Charge. Communication center, while employed as CWE Dehradun Delhi and thereby committed an ofwith intent to defraud vide CA No. fence punishable under Section 45(a) CWE/CLT/7 of 85-86 nalised a of the Navy Act, 1957. contract agreement with M/s. Al5. Did on the Twenty ninth day lied Traders for supply and xing of of September one thousand nine hun- ceiling fans at an exorbitant rate of dred eighty nine at about 1403 hours Rs.488/- per fan, while DGS&D conuse violence against Lieutenant Com- tract rate was Rs. 413.56 per fan. mander, (Special Duties Communi5. At the place and date mencation) Man Singh Rawat (81917 Z) tioned in the Charge No. 4, improphis superior ocer in the Oce of erly accepted the contract agreement the Ocer-in-Charge. Communicawith the altered rates as mentioned tion center, Delhi and thereby comin the said charge. mitted an oence under Section 45(c)

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Union Of India v. P.D. Yadav 2001 of the purchase order to avoid the necessity of obtaining the sanction of higher authority with reference to the total amount of the said order. 2. He at eld, between 25th January, 1991 to 6th March, 1991 while being Garrison Engineer 571 Engr. Park when ordered to purchase 5 Sl Shelters, 6 bathing cubicles ock and 6 latrine cubicles valued at Rs. 10 lacs, with intent to defraud splitted the said purchase order by placing the supply orders in contravention to para 748 of Military Engr. Services Regulations 1968 edition read with the Northern Command letter No. 42346/2/policy/11/Eng. Dated 31 October, 1975 which prohibit splitting of the purchase order to avoid the necessity of obtaining the sanction of higher authority with reference to the total amount of the said amount. 3. He, at eld, between 12th March, 1991 to 25th March, 1991, while being Garrison Engineer 571 Eng. Park when ordered to purchase 10 Sl shelters valued Rs. 10 lacs, with intent to defraud, splitted the said purchase order by placing the supply orders in contravention to para 748 of Military Engineer Services Regulations edition read with HQ Northern Command letter No. 42346/2/policy/11/E3 dt. 31 October, 1975 which prohibited splitting of the purchase order to avoid the necessity of obtaining the sanction of higher authority with reference to the total amount of the said order. 4. He, at eld between Febru-

7. At the place and date mentioned in the charge 6 (21.6.1985) improperly accepted the contract agreement with the altered rates as mentioned in the said charge. 10. At Dehradun between 29.3.1985 and 5.7.1985, while employed as CWE, Dehradun, contrary to the provisions of para 24 of the General conditions of contract (IAFW-1815Z) instead of claiming composition from M/s. Doon Furnishers for failure to complete the work by due date, improperly allowed extension of time by 15 days and 30 days for phases I and II respectively. 8. Thirteen charges were framed against E.K. Sugathan (respondent in CA 7807/97) and was found guilty of charges 6, 10, 11 and 12 and of charges 1, 2, 3, 4, 5, 7, 8 and 9 with certain variations. He was sentenced to be cashiered and to suer rigorous imprisonment for two months. However, while conrming the nding and sentence GOC-in-C. Northern Command remitted the sentence of rigorous imprisonment. The said charges are:1. He at eld between 28th January, 1991 to 6th March, 1991 while being Garrison Engineer 671 Engr. Park when ordered to fabricate 28 SL shelters at the cost of Rs. 10 lacs with intent to defraud, splitted the purchases of said order by placing the supply orders in contravention to para 748 of Military Engr. Services Regulations 1968 edition read with HQ Northern Command letter No. 12846/2/policy/II/SB dt. 31 October, 1975 which prohibited splitting

433 ary 1, 1991 to February 18, 1991 while being Garrison Engineer 571 Engr. Park when ordered to purchase 713 chassis valued Rs. 4.281 lacs, with intent to defraud splitted the said purchase order by placing the supply order in contravention to para 748 of Military Engineering Services Regulations 1968 edition read with HQ Northern Command letter No. 42346/2/policy/11/EB dated 31st October, 1975 which prohibited splitting of the purchase order to avoid the necessity of obtaining the sanction of higher to authority with reference to the total amount of the said order. 5. He, at eld, between February 1, 1991 to February 18, 1991, while being GE 571 Engr. Park, when directed by Chief Engineer Northern Command vide letter No. 42392/203/E3 RR dated November 17, 1990 to procure 713 chassis, without authority purchased 213 timber planks of various sizes for which no sanction existed. 6. He, at eld, on 13 Feb. 1991, when Garrison Engineer 571 Engr. Park with intent to defraud placed supply order No. 3027/169 IWS dt. 13th February, 1991 for Steel door size 6-10 double leaf type each divided in the four parts for xing of glass sheets of size 12-3/4x20 4 Nos. and PGI sheets 27x20 duly xed and welded provided with two lower bolt 6 sliding door belt duly xed for looking arrangements. The frame of door made out of angle iron 40x4x40x6mm thick door leaf duly xed with three hinges of 4 to each leaf with two bow handle of 9 size and leaf made out of angle iron 32x32x6mm qty 20 on M/s. CDS Traders Malhard Road, Garhi Udhampur at the rate of Rs. 1650/each well knowing that the rate approved by him was higher than the prevailing market rate of Rs. 1329/each. 7. He, at eld, on 12th March, 1991, when Garrison Engineer, 571 Engr. Park with intent to defraud placed supply order No. 3027/185/IWS dt. 12th March, 1991 for Rear corner column made out of ISMB 6x3x10 long welded with base plate 10x10x10mm thick having 4 holes of 7/8 dia and gusset plate 4x4x6 mm thick welded to base plate. Top plate 7x7x10mm thick having 2 holes of 9/10 dia welded at tope cleats of angle iron 50x50x6mm 9 long 4 nos. having two holes of 9/16 dia welded to the column at place sq. 10, on M/s. Indow Traders, Transport Yard, Udhampur, at the rate of each well knowing that the rate approved by him was higher than the prevailing market rate of Rs. 1147.50 each Rs. 2680/-. 8. He, at eld, on 13th March, 1991, when Garrison Engineer, 571 Engr. Park with intent to defraud placed the supply order No. 3027/199/IWS dt. 13th March, 1991 for front right hand side column made out of ISMB 6x3x10 long welded with base plate 10x10x10mm thick having 4 holes of 7/8 dia and gusset plate 4x4x6mm thick welded to the base plate, top plate 7x7x10mm thick having 2 holes of 9/10 dia

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welded atop. 4 cleats of angle iron 50x60x6mm 6 long having 2 holes of 9/16 dia welded to the column at places, qty. 10 on M/s. Mushtak Hardware, Garhi Udhampur at the rate of Rs. 2680/- each well knowing that the rate approved by him was higher than the prevailing market rate of Rs. 1147.50 each.

nos cleats angle iron 50x50x6mm 4 long having two holds 9x16 dia welded to truss for xing of purl in at places qty. 10 on M/s. Bansi Dhar and Sone near Krishna Mandir, Adarsh Colony, Udhampur at the rate of Rs. 27770/- each well knowing that the rate approved by market rate of Rs. 2218.72 which was higher 9. He, at eld on 16th March, than the prevailing market rate. 1991, Garrison Engineer, 571 Engr. 11. He, at eld on 1 Feb., Park with intent to defraud placed 1991, when Garrison Enginner, 571 the supply order No. 3027/205/IWS Engr. Park with intent to dedt. 16th March, 1991 for middle col- fraud placed the supply order No. umn made of ISMB 6x3x10 long 3027/148/IWS dt. 1 Feb., 1991 for welded with base plate 10x10mm timber plank partal 11x11x8-3/4 thick having four holes of 7/8 free from cracks qty. 60 on M/s. Akdia and gusset plate 4x4x6mm bar Furniture House and Saw Mills, thick having four holes of 7/8 dia Garhi, Udhampur, at the rate of Rs. and gusset plate 4x4x6mm thick 570/- each well knowing that the rate welded to the base plate, top plate approved by him was higher than the 7x7x10mm thick having two holes prevailing market rate of Rs. 429/of 9/10 welded at top. 4 cleats of each. angle iron 50x50x6mm 6 long hav12. He, at eld, on 12th ing two holes of 9/10 dia welded to Feb.,. 1991, when Garrison Enthe column at places qty 10, on M/s. gineer, 571 Engr. Park with inVickey Enterprises Dhar Road, Ud- tent to defraud placed the suphampur at the rate of Rs. 2680/- ply order No. 3027/162/IWS dt. each well knowing that the rate ap- 12th Feb., 1991 for sal wood plants proved by him was higher than the 3600mx 225mmx100mm qty. 25 on prevailing market rate of 1147.50 M/s. Sharma Saw Mills Ram Naeach. gar Chowk. Udhampur at the rate 10. He, at eld, on 12th March, 1991, when Garrison Engineer, 571 Engr. Park with intent to defraud placed the supply order No. 3027/183/IWS dated 12th March, 1991 for middle side made out of at 50x50x6mm welded to 6mm thick plate of size 14x7 1 nos. at joints, 6 cleats of AI 50x50x6mm 6 long welded attend to each truss having 9/16 dia hole for xing columns 6 of Rs. 1250/- each well knowing that the rate approved by him was higher than the prevailing market rate of Rs. 858/- each. 9. A.K. Malhotra (respondent in CA 7808/97) was tried on elven charges. He was not found guilty of charges 1, 2, 4 and 6 to 11, He was found guilty of charges 3 and 5. He was sentenced to be cashiered and his ve years service was forfeited for the

435 purpose of pension. On revision he was not found guilty of charges 1, 6, 7, 8 and 11 but was found guilty of charges 2, 9 and 10 with exceptions. Consequently there was revision in sentence also sentencing him to be cashiered, to suer rigorous imprisonment for six months and to forfeit all the arrears of pay due to him at the time of his cashiering. Conrming authority while conrming the nding and sentence, had revised and remitted the sentence of forfeiture of all arrears of pay na allowances and other public money due to him at the time of his cashiering on 13.2.1991, which was promulgated on 16.3.1991. Charges 2, 3, 5, 9 and 10 are:tober, 1987 and 14th December, 1987 when DDST HQ ATNKK & G Area, improperly and without justication obtained approval for local purchase of 29 KL of Cresoli Liquid Black from MG ASC HQ Southern Command, when there was no emergent requirement of local purchase of that quantity of the said item. 9. At Madras, between 31 Oct. 1987 and 25 November, 1987 when DDST HQ ATNKK & G Area, improperly allowed supply Depot, Madras, to split-up the sanctioned local purchase of 19.85 KL of Cresoli Liquid Black valued at Rs. 2,67.975.00 (Rupees two lakhs sixty seven thousand nine hundred seven ve only), in order to bring the same within the nancial powers of MG ASC, HQ Southhern Command, contrary to Rule 133 of Financial Regulation Part I (Volume I). 1983. Which prohibits such splittingup.

2. At Madras, between Aug. 87 and Nov. 87, when DDST HQ ATNKK & G Area. improperly ordered dispensation of sample testing from Composite Food Laboratory, of 41.098 tons of Tea (CTC) locally purchased by Supply Depot, Madras, from M/s. Vickey Enter10. At Madras, between Novemprises, Madras, contrary to Army ber 1987 and February 1988, When HQ letter No. 72312/III/2/SI-4 DDST HQ ATNKK & G Area, with dated 11 Nov. 86. intent to defraud, directed Supply 3. At Madras between Oc- Depot, Margao, to split-up the sanctober, 1987 and November, 1987, tioned local purchase of 86, 190.800 when DDST HQ ATNKK and G Kgs of Meat Tinned valued at Rs. Area, improperly ordered dispensa- 61,19,451.23 (Rupees sixty one lakhs tion of sample testing from Compos- nineteen thousand four hundred fty ite Food Laboratory or Defence Re- one and paise twenty three only), in search Laboratory (Material), Kan- order to bring the same within the pur, of 19.85 IL of Cresol Liq- nancial powers of MG ASC, HQ uid Black locally purchased from Southern Command. M/s. Gautam Chemicals, Madras 10. We notice the relevant proviand M/s. Testo Chemicals, Madras, sions of the Acts and Regulations:contrary to Para 1086 of ALC TrainThe Army Act 1950 ing Volume II (Supplies) 1968. 71. Punishments awardable by 5. At Madras, between 24th Oc-

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courts martial.- Punishments may be here explained:inicted in respect of oences com(1) to (3) ... mitted by persons subject to this Act (4) Pension shall include gratuity and convicted by courts martial, acexcept when it is used in contradiccording to the scale following, that is tion to term gratuity. to say,(5) to (7) ... (a) ... 3. The full rate of pension or (b) ... gratuity provided for in these Reg(c) ... ulations shall not be granted unless (d) ... the service rendered has been satisfactory. If the service has not been (e) ... satisfactory, the competent author(f) ... ity may make such reduction in the (g) ... amount of pension or gratuity as it (h) forfeiture of service for the thinks proper. purpose of increased pay, pension or 4. Future good conduct shall be any other prescribed purpose; an implied condition of every grant of a pension or allowance. (i) ... (j) ... (k) forfeiture in the case of a person sentenced to cashiering or dismissal form the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal; (l) ... Pension Army, 1961 Regulations for the 16. (a) When an ocer who has to his credit the minimum period of qualifying service required to earn a pension, is cashiered or dismissed or removed from the service, his/her pension, may at the discretion of the President, be either forfeited or be granted at a rate not exceeding that for which he/she would have otherwise qualied, had he/she retired on the same date.

1. Unless otherwise provided, The Navy Act, 1957 these Regulations shall apply to the 81. (1) The following punishpersonnel of the Army and all claims ments may be inicted under this to pension, gratuity or allowances Act, namely:shall be regulated by the regulations (a) ... in force at the time of an individuals (b) ... retirement, release, resignation, discharge, death etc., as the case may (c) dismissal with disgrace from be. the naval service; 2-A Unless there be something (d) ... repugnant in the subject of context, (e) dismissal from the naval serthe terms dened in this Chapter are vice; used in the regulations in the sense

437 (f) to (1) ... (m) forfeiture of pay, head money, bounty, salvage, prize money and allowances earned by and all annuities, pensions, gratuities, medals and decorations granted to, the oender or of any one or more of the above particulars; also in the case of desertion, of all clothes and eects left by the deserter in the ship to which he belongs; (h) ... (2) .. The Navy (Pension) Regulations, 1964 15. Ocers dismissed, discharged, etc.- (1) No pension shall be granted to an ocer who is dismissed with disgrace from service. cashiering under Section 71(d) of the Army Act and no further punishment was imposed under Section 71(h) of the Army Act for forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; he applied for grant of pensionary benets; the authorities did not respond; hence, he led writ petiton seeking direction to the authorities for granting gratuity and pension due. Both the sides pointed to Regulation 16(a). From the records, it was found that no order had been passed under the said Regulation. In the absence of passing any order under Section 16(a), the Court directed the respondent to pay the sum due towards gratuity and pension. Under Section 71(h) a punishment of forfeiture of service for the purpose of pension could be passed but neither that punishment was imposed on the petitioner nor order was passed under Regulation 16(a) forfeiting his pensionary benets. In those circumstances, the Court gave direction as stated above.

(2) In the case of an ocer who is dismissed otherwise than with disgrace from the service, the question whether any pension shall be granted and if so, the rate of such pension shall be the rate of such pension shall be decided by the Central Government, provided that hate pension, 12. It is clear from the if granted shall not exceed the rate said judgment that the question of which would have been admissible to him if he had retired on the same law, whether regulations being nonstatutory could be enforced fcr denydate. ing pension; whether those regula(3) ... tions were contrary to the provisions 11. It is useful to look at the po- of the Act or Rules or whether when sition of law emerging from various punishment wa snot imposed under decisons. The facts of the case in Lt. SEction 71(h) or (k), even then penCol (T.S.) Harbans Singh Sandhu v. sion could be forfeited under ReguUnion or India & Ors., [Writ Peti- lation 16(a) that arise for consideration No. 553 of 1972 decided on tion in the present cases, were neither November 22, 1978] were that a Gen- raised nor decided. eral Court Martial tried the peti13. In the case of Major G.S. toner and imposed a punishment of Sodhi v. Union of India also, re-

438

Union Of India v. P.D. Yadav 2001 16(a) are clear. Even if it is assumed that the Pension Regulation have no statutory force, we fail to understand how the provisions of the said Regulations are contrary to the statutory provisions under the Act or the Rules. The pension has been provided under these Regulations. It is not disputed by the learned counsel that pension was granted to the appellant under the said Regulations. The regulations which provided for the grant of pension can also provide for taking it away on justiable grounds. A shoe-cause notice was issued to the appellant. his reply was considered and thereafter the President passed the order forfeiting the pension and death-cumretirement gratuity. We see no inrmity in the order. The appeal is, therefore dismissed. We are in respectful agreement with the view expressed in the aforementioned decision that the Regulations, which provide for grant of pension, can also provide for taking it away not arbitrarily but subject to satisfying the conditions incorporated in the Regulations. 15. In Union of India & Ors. v. Brig. P.K. Dutta (Retd.) [1995 Supp. (2) SCC 29] while specically dealing with the eect of order passed under Section 71(h) and (k) and the order passed under Regulation 19(a) directly arising on the contentions as are raised in the present cases held that clause (h) of Section 71 contemplates forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose and is wholly dierent from Regula-

lief was granted relying on the decision of Harbans Singh Sandhu mentioned above without deciding questions of law as is clear from para 3 of the Judgment. This judgment proceeded on the ground that in Harbans Singh Sandhus case, a question of law that if no other penalty of forfeiting the pensionary benets was passed under Section 71, pensionary benets could not be withheld; but in Harbans Singh Sandhus case, this question was not decided; it was only noticed as a fact that no further penalty was imposed under Section 71(h) of the Act. The direction was given in that case as no order had been passed forfeiting pension under Regulation 16(a). No principle of law was decided in the said cases. In this view, these two judgments do no support hte respondents. The Full Bench of the High Court itself in Malhotras case has said that in G.S.Sodhis case, no legal issue was decided and, therefore, it cannot be a precedent. The High Court in Yadavs case specically referring tot he cases of Harbans Singh Sandhu and G.S. Sodhi held that they were not applicable to support the case of the petitoner. 14. This Court in Major (Retired) Hari Chand Pahwa v. Union of India & Anr. while dealing with the specic contention that pension have no statutory force and pensionary benets could not be forfeited under Regulation 16(a), has in clear terms in para 5 stated that We do not agree with the second contention advanced by the learned counsel. The provision of Regulation

439 tion 16(a). It is further stated that a reading of both these provisions clearly brings out the distinct elds occupied by them and this Court went on to say:Regulation 16(a) contemplates a situation where an ocer is cashiered, dismissed or removed from service and provides how his pension is to be dealt with. Whereas Section 71(h) provides the punishments which can be awarded by the Court Martial. Section 71(h) contemplates a punishment awarded at the conclusion of the Court Martial while Regulation 16(a) contemplates a stage subsequent to the awarding of punishment of Court Martial and its conrmation. The nature and content of both the impositions is altogether dierent and distinct. So is the eld occupied by clause (K) of Section 71 wholly distinct from Regulation 16(a). We are, therefore, unable to see any inconsistency between Section 71(h) and Regulation 16(a). In this judgment, a reference is made to the case of Major Hari Chand Pahwa (supra) and armed that the pension regulations, though non-statutory in character, the pensionary benets are provided for and are payable under the said regulations; therefore, the same can be withheld or forfeited as provided by the regulations. In this judgment, it is also stated that Army Rule 14 has absolutely no relevance in regard to the forfeiture of pension under Regulation 16(a). 16. Yet again in the case of Union of India & Ors. v. Lt. Col. P.S. Bhargava it is stated that Regulation 16(a) gives the President the power either to forfeit or to reduce the rate of pension in the event of an ocer being cashiered, dismissed or removed from the service. Reference is made to Regulation 4 to say that conduct of the ocer must be good as a condition for the grant of pension or allowance. 17. Dealing with the contention that withholding the pension when the respondent had been Court Martial led and dismissed, would amount to double jeopardv, this Court in Union of India & Ors. v. Subedar Ram Narain & Ors. , did not nd any merit in the contention and held thus:Section 71 of the Army Act provides for dierent types of punishments which could be inicted in respect of an oence committed by a person subject to the Army Act and convicted by courts martial. The punishments are of varying degrees, from death as provided by Section 71(a) to stoppage of pay and allowance as provided by Section 71(j) is of a lesser nature than that of dismissal from service as provided by Section 71(e). When punishment under Section 71(j) is imposed, no recourse can be had to Regulation 113(a), because the said regulation applly only if an order of dismissal is passed against the person concerned. In other words Section 71(j) and Regulation 113(a) cannot apply at the same time. On the other hand, when the punishment of dismissal is inicted under Section 71(e) the provisions of Regulation 113(a) become attracted. The result of punishment

440

Union Of India v. P.D. Yadav 2001 to forfeit pension and that prior satisfactory services of the respondents ought to have been taken into consideration before passing the order forfeiting pension fully or partly. The High Court also held that provisions of Regulation 15(2) of the Navy Pension Regulation are not ultra vires of the provisions of Section 81, 82, 47 and 27 of the Navy Act and that where the Court Martial has imposed a punishment (like dismissal) which does not entail forfeiture of pension, it is still open to the competent authority under the Regulation 15(2) to forfeit a part or whole of the pension by following due procedure. With regard to the delay in passing orders under the pension regulations, the High Court observed that the orders should be passed within a reasonable period, preferably within six months of cessation of service. Of course, whether there was delay or not, in passing the order forfeiting pension depends on the facts of each case. However, the High Court having regard to the facts of the cases did not consider the delay unreasonable and, therefore, declined to quash the orders of forfeiting pension merely on the ground of delay in passing them and rightly so in our opinion. 19. Section 71 of the Army Act provides for various kinds of punishments which may be imposed for oences committed by persons subject to the Act and convicted by Court Martial which may vary from death to stoppage of pay and allowances. In terms of Army Pension Regulation 16(a) and Navy Pension Regulation 15(2), pension may

is that the benet of pension or gratuity which is given under the regulation is taken away. The order of dismissal under the provisions of the Army Act in the case of an employee like the respondent would make him ineligible for pension or gratuity. For a person to be eligible to the grant of pension or gratuity, it is imperative that he should not have been dismissed from service. The dismissal under the provisions of the Army Act is therefore, a disqualication for getting pension or gratuity. 18. The High Court in the impugned judgments has held that Regulation 16(a) is not inconsistent with Section 71(h) and (k) of the Army Act and that they cover dierent elds: so also Regulation 16(a) and Rules 14(5) and 15 of the Army Rules operate in dierent elds. The High Court has upheld the validity of Army Pension Regulation 16(a) and Navy Pension Regulation 15(2). The High Court also did not nd that these Regulations were inconsistent with or contrary to relevant provisions of the Act relating to punishment referred to in the judgment. We approve these conclusions of the High Court. The High Court quashed the impugned orders forfeiting pension on the ground that prior satisfactory service of the respondents, coupled with the fact that Court Martial did not consider it appropriate to impose the punishment under Section 71(h), was not taken into consideration by the authorities. The High Court was of the view that although a person may be cashiered or dismissed from service; that itself was not enough

441 be forfeited partly or fully subject to the conditions mentioned therein. These Regulations are independent and the authority to grant or forfeit pension is the President of India and the Central Government respectively. As rightly found by the High Court, the said Regulations are neither inconsistent with not contrary to the provisions of the Army Act or the Navy Act as the case may be. The said Regulations and the provisions dealing with the punishments under the Acts cover dierent elds and have dierent purposes to serve. Punishments are imposed after trial on the basis of the misconduct proved. The pension regulation deal with the grant or refusal of pension depending on satisfactory qualifying service earned by a person and depending on the nature of punishments imposed, mentioned in the Regulations. The Regulations come into play at a stage subsequent to the imposition of punishment. No doubt, pension is not a bounty but it is the earning of a person after satisfactory completion of qualifying service and if not otherwise disentitled. Under Section 71(h), a punishment of forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose, can be imposed. If forfeiture of service has the eect of reducing total qualifying service required to earn pension, a person concerned is disentitled for pension itself. In other cases, it may have bearing in regard to claim for increased pay or any other purpose. If by virtue of such punishment itself, a person is not entitled for any pension, the question of passing an order forfeiting pension under Regulation 16(a) may not arise. As per Section 71(k), in case of a person sentenced to cashiering or dismissal from the service, a further punishment of forfeiture of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal may be imposed. Clause (k) of Section 71 does not speak of pension unlike clause (h) of the same Section. 20. The argument that since no punishment was imposed under clause (k) by the authorities, although it could have been done, then is no warrant to pass an order forfeiting pension under the Army Pension Regulations in respect of same offence cannot be accepted. As already noticed above, the provisions relating to punishments under the Acts and pension Regulations operate in dierent elds. Clause (k) refers to forfeiture of arrears of pay and allowances and other public money due to a person at the time of cashiering or dismissal. Pension is one, which becomes due subsequent to retirement or termination of service subject to satisfying certain conditions of satisfactory qualifying service and if not otherwise disentitled for claiming pension. Firstly, clause (k) does not speak of pension as such: it speaks of all arrears. pay, allowances and other public money due to a person. It cannot be said that on the date of cashiering or dismissal there could be any arrears of pension. Section 73 of the Army Act enables the authorities to impose punishments in combination. Merely because pun-

442

Union Of India v. P.D. Yadav 2001 of prosecuting and punishing a person twice for the same oence. Punishment is imposed under Section 71 of the Army Act after trial by Court Martial. Passing an order under Regulation 16(a) in the matter of grant or forfeiture of pension comes thereafter and it is related to satisfactory service. There is no merit in the contention that the said Regulation is bad on the ground that it authorized imposition of a double penalty; may be in a given case, penalty of cashiering or dismissal from service and the consequential forfeiture of pension may be harsh and may cause great hardship but that is an aspect which is for the President to consider while exercising his discretion under the said Regelation. May be in his discretion, the President may hold that the punishment of cashiering or dismissal or removal from service was sucient having regard to circumstances of the case and that a person need not be deprived of his right to pension. A crime is a legal wrong for which an oender is liable to be prosecuted and punished but only once for such a crime. In other words, an oender cannot be punished twice for the same oence. This is demand of justice and public policy supports it. This principle is embodied in the well-known maxim Nemo debet bis vexari, si contest curiae quod sit prouna et sadem causa meaning no one ought to be vexed twice if it appears to the court that it is for one and the same cause. Doctrine of double jeopardy is a protection against prosecution twice for the same oence. Under Articles 20-22 of the Indian Con-

ishment is not imposed under clause (h) or (k) of Section 71 and other punishments are imposed, it does not mean that the President is deprived of his power and jurisdiction to pass order under Regulation 16(a); so also the Central Government under Regulation 15(2)( of the Navy Pension Regulations taking note of the punishment imposed under Section 81 of the Navy Act. In a case where punishment is imposed under Section 81(m) of the Navy Act forfeiting pension and/or gratuity, need for passing an order forfeiting pension under Regulation 15(2) of the Navy (Pension) Regulations may not arise. But that does not mean that in cases of punishments imposed, which are covered by Regulation 15 the Central Government is deprived of its power to pass appropriate order under the said Regulation, when such power is specically conferred on the Central Government under the very Regulations, which enables granting of pension and/or gratuity. It is rather not possible to accept the contention that a General Court Martial and conrming authorities imposing punishments can debar the President or the Central Government from passing orders as provided for specically and expressly under the Pension Regulations. 21. A contention, though feebly, was advanced on behalf of some of the respondents that forfeiture of pension in addition to the punishment imposed under Section 71 of the Army Act amounted to double jeopardy. In our view, this contention has no force. There is no question

443 stitution, provisions are made relating to personal liberty of citizens and others. Article 20(2) expressly provides that No one shall be prosecuted and punished for the same oence more than once. Oences such as criminal breach of trust, misappropriation, cheating, defamation etc., may give rise for prosecution on criminal side and also for action in civil court/other forum for recovery of money by way of damages etc., unless there is a bar created by law. In the proceedings before General Court Martial, a person is tried for an oence of misconduct and whereas in passing order under Regulation 16(a) for forfeiting pension, a person is not tried for the same oence or misconduct after the punishment is imposed for a proved misconduct by General Court Martial resulting in cashiering, dismissing or removing from service. Only further action is taken under Regulation 16(a) in relation to forfeiture of pension. Thus, punishing a person under Section 71 of the Army Act and making order under Regulation 16(a) are entirely dierent. Hence, there is no question of applying principle of double jeopardy to the present cases. 22. Our discussion and reasoning with reference to scope and application of Army Pension Regulation 16(a) will equally apply in relation to Navy Pension Regulation 15(2). 23. It is to be noted that the punishment imposed on these respondents by Court Martial, as conrmed, have become nal as the respondents have not questioned their validity and correctness any further. The High Court having rejected all other contentions raised by the respondents, partly allowed their claim on the ground that the otherwise prior satisfactory services of the respondents till the date of imposition of various punishments on them was not taken into consideration by the President or the Central Government, as the case may be, in passing the orders under the Pension Regulations forfeiting their pension. Mainly on this ground, the High Court directed the authorities to reconsider the cases of the respondents and pass orders after issuing supplementary show-cause notices. Consideration of prior satisfactory service of a person till the date of imposition of punishment of cashiering or dismissal or removal from service cannot be read into Army Pension Regulation 16(1) or Navy Pension Regulation 15(2). For exercise of power under the said Regulations, what is to be seen is whether the very terms of these Regulations are satised or not. A plain reading of these Regulations shows that in case of a person who has been cashiered or dismissed or removed from service, at the discretion of the President under Regulation 16(a) and in case of an ocer who is dismissed otherwise than with disgrace from the service, the Central Government under Regulation 15(2) of the Navy Pension Regulations can pass order forfeiting pension, partly or fully. The very fact that such punishment is imposed on a person for proved misconduct after trial by the Court Martial, itself shows his unsatisfactory service. In our view, the High Court has read something

444

Union Of India v. P.D. Yadav 2001 The High Court clearly committed an error in holding that previous satisfactory service of a person upto the date of imposition of punishment should have been taken into consideration for exercise of power under Regulation 16(a) and it cannot be sustained. This being the position we are unable to agree with the High Court that a previous satisfactory service of a person prior to the date of imposition of punishment should be considered for the purpose of Regulation 16(a). Consequently the impugned judgments cannot be sustained. 24. What remains to be seen is whether the orders passed by the President and the Central Government, as the case may be, forfeiting pension of the respondents, were arbitrary, unreasonable or without application of mind. 25. It is the case of the appellants that before passing orders forfeiting pension either under Army Pension Regulation 16(a) or Navy Pension Regulation 15(2), show cause notices were issued to the respondents; replies received from the respondents and all the relevant factors appearing from the records were considered. According to them, the orders passed in their discretion by the President or the Central Government as the case may be, having regard to all aspects, are justied and sustainable. We have perused copies of the notings of the Ministry of Defence and the orders made pursuant thereto. From the said records, we nd that there has been application of mind and hav-

more in these Regulations in insisting for considering prior satisfactory service of a person upto the date of imposition of punishment. Which is not required by the very Regulations. We may clarify here itself that in these cases we are only considering, so far as they relate to grant or forfeiture of pension in relation to and in the context of regulation 16(a) of Pension Regulations for the Army and Regulation 15(2) of the Navy (Pension) Regulations. Under Regulation 2-A(4) of the Army Pension Regulations pension is dened as including gratuity except when it is used in contradiction to the term gratuity. Hence the pension and gratuity., as dened, are included for consideration. Regulation 3 shows that full rate of pension of gratuity shall not be granted unless the service rendered has been satisfactory; if the service has not been satisfactory the competent authority may reduce the rate of pension or gratuity as it thinks proper. Thus, Regulation 3 and Regulation 16(a) of the Army Pension Regulations deal with distinct and dierent situations. Further, Regulation 4 states that future good conduct shall be an implied condition for every grant of pension or allowances. Consideration of satisfactory service may be relevant in terms of Regulation 3 for granting pension in the normal course after satisfactory qualifying service. But Regulation 16(a) being a distinct and specic Regulation enables for forfeiture of pension, partly or fully, as a sequel to imposition of a particular type of punishment. Regulation 16(a) in this regard is self-contained.

445 ing regard to the serious nature of charges already narrated above and keeping in view the relevant circumstances including the punishments imposed on proved charges, the impugned orders appear to have been passed forfeiting pension. The said orders passed forfeiting pension are not merely based on the fact that the appellants were punished by Court Martial, as assumed by the High Court. Moreover, by issuing showcause notices giving opportunity to the respondents to explain the circumstances and their hardship before passing the impugned order, the principles of natural justice were also complied. In the given circumstances when the impugned orders forfeiting pension were passed in the discretion of the authorities exercising the power available under the Regulations, we cannot nd fault with them. Thus, the orders passed are neither arbitrary nor unreasonable. In this view, we do not nd any error or inrmity or illegality in passing the said orders. 26. Having regard to the provisions and position of law, the discussion made and for the reasons recorded hereinabove, we nd merit in these appeals and they deserve to be accepted, Hence, the impugned judgments of the High Court are set aside and the appeals are allowed. No costs.

446

Union Of India v. P.D. Yadav 2001

Chapter 37

Union of India v. L.D. Balam Singh 2002

Union of India & Ors v. L.D. try. Incidentally, the provisions as Balam Singh [2002] Insc 216 (24 contained in Article 33 does not by itApril 2002) self abrogate any rights and its appliU.C. Banerjee & Y.K. Sabharwal cability is dependent on Parliamentary legislation. The language used Banerjee, J. by the framers is unambiguous and While it is true that Army percategorical and it is in this perspecsonnel ought to be subjected to tive Article 33 may be noticed at this strictest form of discipline and Arjuncture. The said Article reads as ticle 33 of the Constitution has conbelow :ferred powers on to the Parliament 33. Power of Parliament to to abridge the rights conferred under Part III of the Constitution in modify the rights conferred by this respect of the members of the Armed Part in their application to Forces, Forces, but does that mean and im- etc. - Parliament may, by law, deterply that the Army Personnel would mine to what extent any of the rights be denuded of the Constitutional conferred by this Part shall, in their privileges as guaranteed under the application to, Constitution ? Can it be said that (a) the members of the Armed the Army Personnel form a class of Forces; or citizens not entitled to the Consti(b) the members of the Forces tutions benets and are outside the charged with the maintenance of purview of the Constitution ? To an- public order;or swer above in the armative would (c) persons employed in any bube a violent departure to the basic reau or other organisation estabtenets of the Constitution. An Army lished by the State for purposes of Personnel is as much a citizen as any intelligence or counter intelligence; or other individual citizen of this coun-

448

Union of India v. L.D. Balam Singh 2002 (1987 CLT 1) of which one of us (U.C. Banerjee,J.) was a party. This Court in the case of Prithi Pal Singh v. The Union of India (AIR 1982 SC 1413) observed : It is one of the cardinal features of our Constitution that a person by enlisting in or entering armed forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Batra v. Delhi Administration (1979) 1 SCR 392 at p. 495 : (AIR 1978 SC 1675 at p. 1727) that even prisoners deprived of personal liberty are not wholly denuded if their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict or abridge such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizen not entitled to the benets of liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having feeling of belonging to the civilized community governed by the liberty oriented Constitution. While answer to the rst question posed above is in the armative, the contextual facts bear out and pose a further issue as regards availability of substantive and procedural safeguards under a specic legislation the High Court answered it in the afrmative since such procedural safeguards are said to be mandatory in nature.

(d) persons employed in, or in connection with, the telecommunication system set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. A plain reading thus would reveal that the extent of restrictions necessary to be imposed on any of the fundamental rights in their application to the armed forces and the forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance of discipline among them would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. The Constitutions makers were obviously anxious that no more restrictions should be placed than are absolutely necessary for ensuring proper discharge of duties and the maintenance of discipline amongst the Armed Force Personnel and therefore Article 33 empowered the Parliament to restrict or abridge within permissible extent, the rights conferred under Part III of the Constitution in so far as the Armed Force Personnel are concerned. (In this context reference may be made to the decision of the Supreme Court in the case of B. Viswar & Ors. v. Union of India & Ors., reported in AIR 1983 S.C. 658) as also a judgment of the Calcutta High Court in the case of Lt. Col. Amal Sankar Bhaduri v. Union of India & Ors.

449 Adverting to the factual matrix presently under consideration, it appears that on a petition led under Articles 226/227 of the Constitution of India, the respondent herein prayed for quashing of the charge-sheet, sentence of the General Court Martial, order of conrmation of General Ocer Commanding and also to quash the trial of the General Court Martial. The facts of the matter however briey are as below: The petitioner was serving the Indian Army having joined the same on 28.10.1976. He was posted to 18 Cavalry C/o 56 A.P.O. during the year 1990-91 at Patiala Cantt. He was residing with his family in a Government married accommodation being House No.255/30 K.S. Colony, Patiala Cantt. On 28.12.1991 a search of his residence was conducted by Army Ocers/Ocials and allegedly opium weighing 4.900 Kgs. was recovered from his family quarter. The petitioner was thereafter placed under Arrest in military custody and was put in the quarter guard of his unit aforesaid and F.I.R. No.378 was lodged at Police Station Sadar Patiala on 28.12.1991. A sample of the opium recovered was forwarded to the Chemical Examiner for analysis and the remaining quantity of the opium, a contraband was kept with the Police. tioner was tried under Section 69 of the Army Act for an oence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). After the trial was over, the petitioner was convicted and sentenced by the General Court Martial. Before adverting, however, to the rival contentions as advanced before this Court, it would be worthwhile to refer to the relevant provisions of the Army Act and the Rules framed thereunder. Chapter VI of the Army Act, 1950 stands ascribed to the offences and Section 69 therein deals with the civil oences, which reads as below :69. Civil oences Subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India, commits any civil oence, shall be deemed to be guilty of an oence against this Act and, if charged therewith under this section, shall be liable to be tried by a court martial and, on conviction, be punishable as follows, that is to say, -

(a) if the oence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suer any punishment, other than whipping, assigned for the oence, by the aforesaid law and such less punishment as is in this Act mentioned; The summary of evidence was or- and dered by the Commanding Ocer of (b) in any other case, he shall be 64 Cavalry and on the basis of direcliable to suer any punishment, other tions from the Brigade Commander, than whipping, assigned for the ofthe petitioner was put to trial by the fence by the law in force in India, or General Court Martial convened unimprisonment for a term which may der the Convening Order. The peti-

450

Union of India v. L.D. Balam Singh 2002 Court Martial takes note of an offence under a specic statute. Article 33 of the Constitution though conferred a power but has not been taken recourse to put a bar or restraint as regards the non-availability of the statutory safeguards in terms therewith. Before proceeding further, however, it would be convenient to note certain provisions of the NDPS Act, namely, Sections 18:42:50, which read as under : 18. Punishment for contravention in relation to opium poppy and opium. Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with ne which may extend to ten thousand rupees, or with both; (b) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to ne which shall not be less than one lakh rupees which may extend to two lakh rupees:

extend to seven years, or such less punishment as is in this Act mentioned. It is on this score that Section 109 in Chapter X ought also to be noticed at this juncture. The Section reads as below : 109. Power to convene a general court martial. A general court martial may be convened by the Central Government of [the Chief of the Army Sta] or by any ocer empowered in this behalf by warrant of [the Chief of the Army Sta]. Having outlined the factual score as above and upon noting of the two several provisions of the Army Act, it would be worthwhile to note Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Needless to record that the petitioner was tried under Section 69 of the Army Act for an offence punishable under Section 18 of the NDPS Act the trial did take place before a General Court Martial and conviction and sentence was also passed therein. It is this sentence and conviction which stands challenged in the writ petition moved before the High Court, as noticed above. The NDPS Act admittedly contains certain safeguards and the law reports are replete with case laws pertaining to these safeguards.

Dilution of the safeguards as prescribed in the statute has strongly been criticised and negated and the same were ascribed to be strictly mandatory in nature. The issue thus Provided that the court may, for : whether by reason of the responreasons to be recorded in the judgdent being a member of the Armed ment, impose a ne exceeding two Forces would stand denuded of such lakh rupees. a safeguard in the event the General

451 (c) in any other case, with rigor- set :ous imprisonment which may extend (a) enter into and search any such to ten years and with ne which may building, conveyance or place; extend to one lakh rupees. (b) in case of resistance, break 42. Power of entry, search, open any door and remove any obseizure and arrest without warrant or stacle to such entry; authorisation : (c) seize such drug or substance (1) Any such ocer (being an of- and all materials used in the manucer superior in rank to a peon, se- facture thereof and any other article poy or constable) of the department and any animal or conveyance which of central excise, narcotics, customs, he has reason to believe to be liable revenue, intelligence or any other to conscation under this Act and department of the Central Govern- any document or other article which ment including para-military forced he has reason to believe may furnish or armed forces as is empowered in evidence of the commission of any ofthis behalf by general or special order fence punishable under this Act or by the Central Government, or any furnish evidence of holding any illesuch ocer (being an ocer superior gally acquired property which is liin rank to a peon, sepoy or consta- able for seizure or freezing of forfeible) of the revenue, drugs control, ex- ture under Chapter VA of this Act; cise, police or any other department and of a State Government as is empow(d) detain and search and, if ered in this behalf by general or spehe thinks proper arrest any person cial order of the State Government, whom he has reason to believe to if he has reason to believe from perhave committed any oence punishsonal knowledge or information given able under this Act : by any person and taken down in Provided that if such ocer has writing, that any narcotic drug, or reason to believe that a search warpsychotropic substance, or controlled substance in respect of which an of- rant or authorisation cannot be obfence punishable under this Act has tained without aording opportunity been committed or any document or for the concealment of evidence or faother article which may furnish evi- cility for the escape of an oender, he dence of the commission of such of- may enter and search such building, fence or any illegally acquired prop- conveyance or enclosed place at any erty or any document or other article time between sunset and sunrise after which may furnish evidence of hold- recording the grounds of his belief. ing any illegally acquired property (2) Where an ocer takes down which is liable for seizure or freez- any information in writing under ing or forfeiture under Chapter VA Sub-Section (1) or records grounds of this Act is kept or concealed in for his belief under the proviso any building, conveyance or enclosed thereto, he shall within seventy-two place, may between sunrise and sun- hours send a copy thereof to his im-

452 mediate ocial superior.

Union of India v. L.D. Balam Singh 2002 (6) After a search is conducted under sub- section (5), the ocer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate ocial superior. As regards the mandatory eect of the provisions as contained in Section 50 above, the Constitution Bench of this Court in Baldev Singh (State of Punjab v. Baldev Singh (1999) 6 SCC 172) has the following to state : 24. There is, thus, unanimity of judicial pronouncements to the eect that it is an obligation of the empowered ocer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted ocer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. Similarly, if the person concerned requires, on being so informed by the empowered ocer or otherwise, that his search be conducted in the presence of a Gazetted ocer or a Magistrate, the empowered ocer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad. 25. To be searched before a Gazetted ocer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person con-

50. Conditions under which search of persons shall be conducted :- (1) When any ocer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Ocer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the ocer may detain the person until he can bring him before the Gazetted Ocer or the Magistrate referred to in sub-section (1). (3) The Gazetted Ocer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an ocer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Ocer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Ocer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

453 cerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted ocer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. There is, thus, no justication for the empowered ocer, who goes to search the person, on prior information, to eect the search, of not informing the person concerned of the existence of his right to have his search conducted before a Gazetted ocer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sucient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered ocer had conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a Gazetted ocer, at the time of the intended search. Courts have to be satised at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with. On the factual matrix Mrs. Indu Malhotra appearing for the respondent rather emphatically contended that it is an admitted situation that there is non-compliance of Sections 41 and 42 of the NDPS Act since no search warrants were issued and ocers conducting the search were admittedly not duly authorised under the Act and by reason therefor the resultant eect of state of the situation as above, rendered the entire proceeding stand vitiated. The decision in Baldev Singh (supra) mainly dealt with the provisions of Section 50, which would be dealt with shortly hereafter but presently having a perusal of the relevant statutory provisions (in particular Sections 41 and 42) the submission as above cannot but be termed as it has been inevitable and inescapable. A recent decision of this Court in Roy V.D. v. State of Kerala (2001 SCC (Cri) 42) however, lends credence to conclusion as above since this Court as a matter of fact dealt with the true purport of Sections 41 and 42 of the NDPS Act. The felicity expression as contained therein, however, prompts us to note the same in extenso as below :- 15. It is thus seen that for exercising powers enumerated under sub-section (1) of Section 42 at any time whether by day or by night a warrant of arrest or search issued by a Metropoli-

454

Union of India v. L.D. Balam Singh 2002 expressed by this Court in State of Punjab v. Balbir Singh (1994 (3) SCC 299 : 1994 SCC (Cri) 634). In para 13 Jayachandra Reddy, J. speaking for the Court observed thus : (SCC p. 313) 13. Therefore, if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other Magistrate or is made by any ocer not empowered or authorised, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial. .... 19. The learned Additional Solicitor General, however, relying upon conclusion No.(3) in para 57 of State of Punjab v. Baldev Singh (1999 6 SCC 172 : 1999 SCC (Cri) 1080) contends that a search and seizure in violation of Sections 41 and 42 of the NDPS Act does not vitiate the trial but would render the recovery of illicit article suspect and would only vitiate the conviction and sentence of the accused if the conviction has been recorded solely on the basis of such an illicit article, so the High Court was right in not quashing the proceedings. We are afraid, we cannot accede to the contention of the learned Additional Solicitor General. . The appellant herein, however, rather emphatically voiced two specic counts in support of the appeal. On the rst, it has been contended that by reason of the fact of the petitioner being a person belonging to the Armed Forces, question of usual formalities as regards the procedural aspect under NDPS Act would not arise, as such infrac-

tan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class who has been specically empowered by the State Government in that behalf or an authorisation under sub-section (2) of Section 41 by an empowered ocer is necessary. Without such a warrant or an authorisation, an empowered ocer can exercise those powers only between sunrise and sunset. However, the proviso permits such an empowered or authorised ocer to exercise the said powers at any time between sunset and sunrise if he has reason to believe that such a search warrant or authorisation cannot be obtained without aording opportunity for the concealment of evidence of facility for the escape of an offender and he records the grounds of his belief. 16. Now, it is plain that no ofcer other than an empowered ocer can resort to Section 41(2) or exercise powers under Section 42(1) of the NDPS Act or make a complaint under clause (d) of sub-section (1) of Section 36-A of the NDPS Act. It follows that any collection of materials, detention or arrest of a person or search of a building or conveyance or seizure eected by an ocer not being an empowered ocer or an authorised ocer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of oences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial. 17. To the same eect is the view

455 tion of Section 42 of the NDPS Act cannot be said to be of any consequence : On the second count it has been the denite contention that since Section 50 specically records about to search any person and since the contraband item has been in fact recovered from the private residence of the respondent herein, Section 50 cannot be said to be of any application. It is on this score the charge-sheet, though not included in the paper book, but upon leave of the Court, was produced and placed reliance upon in support of the appeal. We also deem it t and convenient to note the charge-sheet hereinbelow :CHARGE SHEET The accused No 1059403N LD (Subs) Balam Singh of 18 Cavalry, attached to 64 Cavalry is charged with :- Army Act COMMITTING A CIVIL OFFENCE, THAT IS TO Section 69 SAY, POSSESSING OPIUM IN CONTRAVENTION OF SECTION 18 OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 in that he, at Patiala on 28 Dec 91 was found in illegal possession of 4 kgs and 900 grams of opium. Place : Patiala Sd/ x x x x Date : 12 Mar 92 (SD Singh) Colonel Commanding Ocer The 64 Cavalry To be tried by General Court Martial. judgment, but for the present suce it to record that the same stated to be relating to possession of opium in contravention of Section 18 of the NDPS Act since he was found in illegal possession of 4 Kgs and 900 grams of opium at Patiala on 28th December, 1991. The chargesheet, however, is stated to be, as noticed above, issued under Section 69 of the Army Act by one Shri S.D. Singh, Colonel/Commanding Ocer 64th Cavalry and it is this chargesheet which has been directed by the General Ocer Commanding, Major General Kamaljit Singh to be tried by the General Court Martial. In the writ petition led before the High Court after the conclusion of the Court Martial proceedings and recording of the nding of guilt of the charge the petitioner/respondent herein specically raised a plea of the charge being vague. Before, however, we deal with the same let us get back to the two specic counts noticed hereinbefore, namely, procedural aspect and non-applicability of Section 50. Dealing with the second count rst, as regards non-applicability of Section 50 by reason of the factum of the same being made applicable to the person and not the place, we cannot but record our concurrence therewith. Section 50 sub-section (1) by reason of the language used therein, does not and cannot have any manner of application in the facts presently under consideration.

Station : Patiala Sd/ x x x x C/o 56 APO (Kamaljit Singh) Major General Dated : 14 Mar 92 General Ocer Commanding 1 Armoured DiTurning attention on to the provision We shall have the occasion cedural aspect, be it noticed that to deal with the specic grievance as submitted in support of the re- Section 18 is an oence which cannot spondents contention later on in this but be ascribed to be civil in nature

456

Union of India v. L.D. Balam Singh 2002 not take into consideration the procedural safeguards as is embodied under the Statute, the question of offering any credence to the submissions of Union of India in support of the appeal does not and cannot arise. There is no material on record to show that the authorities who conducted the search and seizure at the house of the respondent herein has in fact done so in due compliance with Section 42 of the statute which admittedly stand fatal for the prosecution as noticed above as a matter of fact, two of the civilians stand acquitted therefor. Lastly, it has been contended by the respondent that the chargesheet is not only vague, but devoid of all material particulars and does not even full the requirements of the Army Rules and the entire proceedings in any event stand vitiated. We are, however, not expressing any opinion thereon, neither the same is required for the purposes of disposal of this matter. Suce it to record, however, that the same has some substance. Having considered the matter in the perspective as above, we do not nd any infraction of any law in the judgment of the High Court, neither the judgment can be faulted in any other way. This appeal, therefore, fails and is thus dismissed. J. (Umesh C. Banerjee) J. (Y.K. 2002. Sabharwal) April 24,

in terms of the provisions of Army Act if Section 18 is to be taken recourse to then and in that event the provisions of the statute come into play in its entirety rather than piecemeal. The charge leveled against the respondent is not one of misdeeds or wrongful conduct in terms of the provisions of the Army Act but under the NDPS Act In the event, we clarify, a particular statute is taken recourse to, question of trial under another statute without taking recourse to the statutory safeguards would be void and the entire trial would stand vitiated unless, of course, there are existing specic provisions therefor in the particular statute. Needless to record that there were two other civilian accused who were tried by the Court at Patiala but were acquitted of the oence for non-compliance of the mandatory requirements of the NDPS Act. Once the petitioner was put on trial for an oence under the NDPS Act, the General Court Martial and the Army authorities cannot reasonably be heard to state that though the petitioner would be tried for an oence under Section 18 of the NDPS Act, yet the procedural safeguards as contained in the statutory provision would not be applicable to him being a member of the Armed Forces. The Act applies in its entirety irrespective of the jurisdiction of the General Court Martial or other Courts and since the Army authorities did

Chapter 38

Union Of India v. Shivendra Bikaram Singh 2003

Union Of India (Uoi) And Ors. v. Shivendra Bikaram Singh on 24 April, 2003 Equivalent citations: AIR 2003 SC 2481, 2003 (2) ALD Cri 147, 2003 CriLJ 3028 Author: B Singh Bench: N S Hegde, B Singh JUDGMENT B.P. Singh, J. 1. In this appeal by special leave the Union of India has impugned the judgment and order of the High Court of Bombay at Goa dated May 2, 2001 in criminal writ petition no. 3 of 2001 whereby the High Court allowing the writ petition led under Article 226 of the Constitution of India quashed the order of the Court Martial dated 4th September, 2000 which found the respondent guilty of the oences under sections 497, 452 and 325 of the Indian Penal Code read with Section 77(2) of the Navy Act, 1957 (hereinafter referred to as the Act) and the order of the Chief of the Naval Sta dated 8th January, 2001 passed under Section 162 of the Act as also the order of the Chief of the Naval Sta dated January 31, 2001 passed under Section 163 of the Act. After going through the evidence on record it also recorded a nding that there was no legal evidence to support the order of conviction and, there fore, gave to the respondent the benet of doubt. 2. The facts of the case so far as they are relevant for the disposal of this appeal are :The respondent was an ocer of the Indian Navy and at the relevant time was serving as a Lieutenant posted in Goa. He was tried by a Court Martial for oences under sections 497, 506, 452 and 325 of the Indian Penal Code read with Section 77(2) of the Act. The Court Marital found the respondent guilty of the oences under sections 497, 452 and 325 of the Indian Penal Code read with Section 77(2) of the Act and ordered the respondent to be kept in rigorous imprisonment for a term of 24 calendar months as a class-I prisoner; to be dismissed with disgrace

458

Union Of India v. Shivendra Bikaram Singh 2003 in Section 102 of the Act. As a result grave prejudice was caused to the respondent and there was serious miscarriage of justice by such ofcers continuing as members of the Court Martial to try him. The order of Court Martial was also challenged on the ground of its failure to record reasons for the conclusions reached by it. It was also submitted that the oences for which the respondent was tried were ordinarily oences which could have been tried by an ordinary criminal court and, therefore, trial by Court Martial was not justied. 4. On the other hand the Union of India contended that the Court Martial had been properly constituted and it had scrupulously observed provisions of the Act and recorded a nding of guilt against the respondent. It was not required to record reasons for its conclusions and its ndings were, therefore, not vitiated for this reason. The objection raised by the respondent against the inclusion of three ocers as members of the Court Martial was duly considered by the trial judge advocate who rejected the objection as regards two of the ocers, while the objection against the third ocer was considered by the members of the Court Martial and was ultimately rejected. The Trial Judge advocate exercised his power to reject such an objection in accordance with the provisions of Section 102 of the Act. No irregularity was committed by him. The proceedings before the Court Martial were conducted scrupulously in accordance with law and no illegality had been committed which either re-

from the Naval service and to suffer consequential penalties involved. The Chief of the Naval Sta in exercise of his power under Section 163 of the Act modied the sentence awarded to the respondent and ordered that the respondent be kept in rigorous imprisonment as a classl prisoner for a period of 12 calendar months and that he be dismissed from Naval service and shall suer the consequential penalties involved. The respondent submitted a petition on December 4, 2000 under Section 162 of the Act with a request to set aside the ndings and sentence awarded to him by the Court Martial, but the same was rejected by the Chief of the Naval Sta by his order dated January 31, 2001. 3. The order of conviction and sentence passed by the Court Martial as well as the orders of the Chief of the Naval Sta in exercise of powers under sections 162 and 163 of the Act were challenged before the High Court by the respondent by ling a writ petition under Article 226 of the Constitution of India. The challenge to the aforesaid orders was on several grounds. It was submitted before the High Court that the members of the Court Martial had not been appointed in conformity with Section 97 of the Act. Three of the members of the Court Martial were incompetent to act as impartial judges and the objection raised by the respondent in this regard was disposed of by the trial judge advocate, without reference to the members of the Court Martial, in gross violation of the mandatory provisions contained

459 sulted in serious prejudice to the respondent or in miscarriage of justice. The writ court, therefore, had no jurisdiction to interfere with the impugned orders. It was also the case of the Union of India that the oences for which the respondent was tried while serving as a naval ocer were triable by the Court Martial. The respondent had, therefore, not made out a case for interference with the order of the Court Martial as well as the orders passed under Sections 162 and 163 of the Act having regard to the parameters of judicial interference in matters of this nature. Proceedings of a Court Martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure since these proceedings remain to a signicant degree, a specialized part of overall mechanism by which military discipline is preserved. The Court Martial discharges judicial function and the procedure prescribed provide for a fair trial to the accused. Therefore, unless it is shown that prejudice has been caused or mandatory provisions have been violated, the High Court should not allow the challenge to validity of the conviction and sen5. The High Court rst consid- tence of the accused when evidence ered the scope of its writ jurisdic- is sucient. tion in such matters and the param6. Bearing the above princieters of judicial interference. It con- ples in mind the High Court prosidered the judgments of this Court ceeded to consider the other submisin Union of India and Ors. v. Him- sions advanced before it. It rejected mat Singh Chahar, ; Lt. Col. Prithi the submission that non-recording of Pal Singh Bedi v. Union of India reasons in support of the concluand Ors., and Union of India and sion reached by the Court Martial Ors. v. Major A. Hussain, and held vitiated the order. Relying upon that though the Court Martial pro- the judgment of this Court in S.N. ceedings are subject to judicial re- Mukherjee v. Union of India, it was view by the High Court in exercise of held that the Court Martial is not reits writ jurisdiction, the Court Mar- quired to record reasons for the contial is not subject to the superin- clusion reached by it while recordtendence of the High Court under ing a conviction. It also rejected Article 227 of the Constitution. In the contention urged on behalf of the exercise of its jurisdiction the High respondent that the Court Martial Court will not minutely examine the was not duly constituted inasmuch record of the Court Martial as if it as the majority of members of the was sitting in appeal. If the Court Court Martial did not belong to the Martial has been properly convened, executive branch of the Naval serand there is no challenge to its com- vice as required by Section 97(10) of position, and the proceedings are in the Act. It accepted the submission accordance with the procedure pre- urged on behalf of the Union that all scribed, the High Court, or for that the ocers who were members of the matter any court, must stay its hand. Court Martial were Executive O-

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Union Of India v. Shivendra Bikaram Singh 2003 held that on a plain reading of Section 102 of the Act the trial judge advocate had no jurisdiction to dispose of an objection summarily which related to the competency of a member of the Court Martial to act as an impartial member. In the interest of fairness the Act envisages that the objection with regard to any member of the Court Martial must be dealt with at the threshold. The objection to any member of the Court regarding his competency to act as an impartial judge, must be referred to the members of the court and disposed of in accordance with the procedure laid down in that section. At that stage any other objection, which did not relate to the capacity of the member to act as an impartial Judge had to be rejected by the trial judge advocate, Other objections, if any, were to be dealt with under Section 103 of the Act. The language of Section 102 of the Act clearly postulates that when an objection is taken against any member on the ground of his incompetency to act as an impartial judge, the trial judge advocate must stay his hand and is obliged to refer the same to the members of the Court Martial for deciding the same in the manner provided for by Section 102 of the Act. This provision is in the nature of an opportunity being oered to the concerned member against whom such a ground is urged to recluse himself in view of the allegations made. The trial judge advocate had no jurisdiction to summarily reject such an objection without referring the same to the members. It would amount to rewriting the said provision if it was to be held that

cers which was supported by a Notication issued in this regard. The submission, that the constitution of the Court Martial was not constituted in conformity with the mandate of Subsection (16) of Section 97 of the Act since it had to be constituted by the peers of the respondent, namely the Lieutenants, and not by the Commanders, especially when the President was Acting Captain, was also rejected. It was held that on a plain reading of Sub-sections (17) of Section 97, the mere fact that the members of the Court Martial were higher in rank to the petitioner, did not render the constitution of the Court Martial inrm. 7. The crucial question raised before the High Court was with regard to the manner in which, and the person by whom, objec tion raised by the respondent with regard to the competency of two members of the Court Martial to act as impartial judges was rejected. It is not in dispute that the respondent objected to three members of the Court Martial on the ground of their competency to act as impartial judges. The members objected to were Captain Rajiv Girotra, President, and a Member Cdr. Suresh Mehta. The objection of the respondent was rejected by the trial judge advocate without referring the objection to the members of the Court Martial for decision. The objection as against, the third member, namely Cdr. Narayan was referred to all the members of the Court Martial excluding Cdr. Narayan, but the objection was ultimately rejected. The High Court

461 the trial judge advocate must in the rst instance examine the objection himself, as to whether the ground about the competency to act as impartial judge is made out or not. The summary rejection of the objection with regard to Captain Rajiv Girotra and Cdr. Suresh Mehta was, therefore, not in accordance with the procedure prescribed by law, and there was a clear breach of the mandatory provision relating to procedure of Court Martial, which undoubtedly caused gross miscarriage of justice to the respondent. Accordingly it held that the constitution of the Court Martial itself become susceptible to serious challenge on account of incompetency of Captain Rajiv Girotra (President) and Cdr. Suresh, Member to act as impartial judges. Since the Court Martial was not duly constituted in accordance with law, all subsequent steps taken by such a Court Martial were nullity and nonest in the eye of law. It further held that even the objection with regard to Cdr. Narayan, which was referred to the members of the Court Martial and was rejected, was not disposed of in accordance with law. The reason was that Captain Rajiv Girotra and Cdr. Suresh Mehta continued to participate as members of the Court Martial and participated in the proceeding when the objection against Cdr. Narayan was referred to the Court Martial. Having regard to the procedure prescribed by Section 102 of the Act, the continued participation of Captain Rajiv Girotra and Cdr. Suresh Mehta, without consideration of objection against them in accordance with law, vitiated the proceeding of the Court Marital even in regard to the consideration of the objection against Cdr. Narayan. 8. The High Court, therefore, held that the writ petition must succeed on the sole ground of noncompliance of mandatory provisions of law while considering the objection regarding incompetency of Captain Rajiv Girotra and Cdr. Suresh Mehta to act as impartial judges, relying on the observations of this Court in Ranjit Thakur v. Union of India and Ors., wherein it was held that participation of the objected members in the Court Martial rendered the proceedings coram non judice. 9. The High Court observed that in view of its above nding it was unnecessary to examine the other contentions but since the parties had addressed the court at length on all points, it proceeded to deal with other submissions as well. 10. It rejected the submission urged on behalf of the respondent that the Court Martial had no jurisdiction to try the respondent for the oences with which he was charged. It held that the respondent being a person subject to Naval Law, even though the oences of which he was charged were civil oences, he could be tried and punished under the provisions of the Navy Act regardless of where the oences were committed. Reference to Section 78(2) of the Act was also of no assistance to the respondent because the oence under Section 497 of the Indian Penal Code was quite distinct from an oence of rape under Section 376 of the Indian

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Union Of India v. Shivendra Bikaram Singh 2003 on a fair reading of Section 102 of the Act it must be held that the trial judge advocate has power to reject summarily an objection raised by the accused against inclusion of any member in the Court Martial even if it was related to his competency to act as an impartial judge. He emphasized the fact that under Section 114 of the Act the trial judge advocate exercises powers which are judicial in nature and, therefore, Section 102 must be understood in the background of the nature of judicial functions performed by the trial judge advocate. It was, therefore, open to the trial judge advocate to consider the objection and if he was of the opinion that the ground challenging the competency of the concerned ocer to act as an impartial judge did not have merit, he could reject the same summarily. Only those objections, which raised grounds worth considering had to be referred to the Court Martial for its decision. He, therefore, submitted that the High Court had wrongly relied on the observations made by this Court in Ranjit Thakurs case (supra). According to him the principles laid down therein were wholly inapplicable to the case in hand, because in that case this Court had considered the provisions of the Army Act, particularly Section 130 thereof which is quite different from Section 102 of the Act. He, therefore, supported the ruling of the trial judge advocate rejecting the objection of the respondent to two members of the Court Martial on the ground of their not being competent to act as impartial judges. In the alternative it is submitted that in any

Penal Code, and Section 78(2) of the Act was conned in its application to the oences of murder, culpable homicide not amounting to murder and rape. 11. The High Court was then persuaded to consider the evidence on record for nding out whether there was any legal evidence to convict the respondent of the oences with which he was charged. Considering the oence under Section 497 of the Indian Penal Code the High Court found that the prosecution had miserably failed to establish the factum of marriage and its legality and, therefore, the rst ingredient of the oence was not established. Similarly having scrutinized the evidence on record for the limited purpose whether there was any legal evidence to sustain the conviction, the High Court held that having regard to the totality of circumstances it would be wholly unsafe to record the nding of guilt against the respondent for the oences under sections 452 and 355 of the Indian Penal Code. The High Court observed that it had not re-appreciated the evidence as such, or made any attempt to nd out suciency or adequacy of evidence, but on wading through the evidence it found that there was no legal evidence to support the charges and, therefore, the respondent should be given the benet of doubt. With these ndings, the High Court allowed the writ petition and quashed the impugned orders. 12. Shri Anup G. Chaudhary, senior counsel appearing on behalf of the Union of India submitted that

463 case there was sucient evidence on record to support the conviction, and the High Court was, therefore, not justied in law in appreciating the evidence on record and reaching the conclusion that the respondent was entitled to benet of doubt. It is further contended that the respondent having submitted himself to trial and the defect if any, not being of such a nature as to vitiate the trial, it must be held that the respondent had waived his objection against membership of two of the ocers in the Court Martial. According to him. if the respondent was aggrieved by the ruling of the trial judge advocate, he could have challenged his ruling by ling a writ petition. He having not done so, it amount to a waiver and, therefore, he could not be permitted to urge that ground in support of the writ petition. 13. Shri Arun B. Saharya, senior advocate appearing on behalf of the respondent submitted that the trial judge advocate was clearly in error in rejecting the objection raised by the respondent under Section 102 of the Act having regard to the clear language of the section. Any objection relating to a member of the Court Martial on a ground which aected his competency to act as an impartial judge had to be decided by the members of the Court Martial and not by the trial judge advocate. He took us to the scheme of the Act in support of his submission. He further submitted that though the trial judge advocate performs functions which are judicial in nature, his role becomes relevant only after the trial commences, as is evident from Section 114 of the Act, and the trial does not commence till such time as the objection under Section 102 are disposed of and the President and every Member of the Court Martial is administered the oath or armation as mandated by Section 104 of the Act and the plea of the accused on the charges is recorded under Section 105. That stage was never reached in this case because the objections were not disposed of in accordance with the procedure laid down under Section 102 of the Act. Moreover the provisions of the Act further clarify that the function of the trial judge advocate is only to advice the Court Martial and not to decide such issues. 14. On the question of waiver he submitted that it implies a conscious giving up of a right. In the facts of this case it is apparent that the respondent never waived his right to object to the membership of three of the ocers in the Court Martial. He initially urged this submission before the High Court when he rst led the writ petition, which was dismissed as premature since he had not availed of the remedies under Sections 162 and 163 of the Act. Thereafter, he also urged this objection in his petition led under Section 162 of the Act and nally the point was specifically urged before the High Court in the instant writ petition out of which the present appeal arises. He submitted that the respondent was not expected to challenge every ruling given by the trial judge advocate, and it was only appropriate that he permitted the trial to continue and

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Union Of India v. Shivendra Bikaram Singh 2003 Court comes to the conclusion that there had been violation of mandatory provisions of Section 102 of the Act and that the violation resulted in prejudice to the respondent and serious miscarriage of justice, this Court should direct the trial to commence from the stage of Section 101 of the Act. This was, of course, subject to his contention that, in the facts and circumstances of this case, the nding recorded by the Court Martial should be armed. 16. It would be benecial to notice a few provisions of the Navy Act, 1957, which would disclose the scheme of the Act and the procedure to be followed in a Court Martial proceedings.

then challenged the verdict of the Court Martial on the ground of glaring illegalities and breach of mandatory provisions of law which not only caused prejudice to the respondent, but also resulted in serious miscarriage of justice. He further urged before us that even though it is not permissible to the High Court to exercise its writ jurisdiction to appreciate the evidence on record in the same manner as the High Court may do in a criminal appeal before it exercising appellate jurisdiction, the verdict of the Court Martial can certainly be challenged in writ jurisdiction if the High Court is satised that there is no legal evidence whatsoever to support the charges leveled against the accused. He emphasized that in doing so the High Court was not expected to scrutinize the evidence with a view to nding out whether there was sucient evidence to record the conviction, but only to nd out if there was any legally admissible evidence at all, which could support the nding recorded by the Court Martial. Therefore, not the suciency, but the existence of relevant material, was what the High Court was entitled to look for in a case of this nature, and that is precisely what the High Court has done in this case. He, therefore, supported the nding recorded by the High Court that there was no evidence whatsoever to support the charges leveled against the respondent and, therefore, he was entitled to the benet of doubt.

17. Section 93 provides that an oence triable under the Act may be tried and punished by court martial. Section 97 provides that court marital shall be constituted and convened, subject to the provisions of the sub-sections to Section 97, by the President, the Chief of the Naval Sta, or any ocer empowered in this behalf by commission from the Chief of the Naval Sta. Sub-section (6) thereof provides that a court martial shall consist of not less than ve and not more than nine ocers. Subsections (7) to (22) lay down the qualications of the ocers entitled to sit as a member of the court martial and other details relating to the constitution of a court martial. Section 99 lays down that every court martial shall be attended by a person referred to as the trial judge advocate 15. In reply Shri Anup G. Chaud- who shall be either a judge advocate hary submitted that even if this in the department of the judge advo-

465 cate general of the Navy or any t person appointed by the convening ocer. Sub-section (2) provides that the trial judge advocate shall administer oath to every witness at the trial and shall perform such other duties as are provided in the Act and as may be prescribed. Sections 101 to 103 are of considerable signicance in this case and they are, therefore, reproduced for sake of convenience :to the disposal of objections raised by the prosecutor as well as the accused :(a) any member may be objected to on a ground which aects his competency to act as an impartial judge; and the trial judge advocate may reject summarily without reference to the members of the court any objection not made on such grounds;

(b) objections to members shall be decided separately, those to the ofcer lowest in rank being taken rst: provided that if the objection is to the president, such objection shall be decided rst and all the other members whether objected to or not shall vote as to the disposal of the objec(2) Except where the accused de- tion; fends himself, he may be defended (c) on an objection being allowed by such person or persons as may be by one-half or more of the ocers prescribed. entitled to decide the objection, the 101. Commencement of proceedings. (1) As soon as the Court has been assembled the accused shall be brought before it and the prosecutor, the person or persons, if any defending the accused and the audience admitted. (3) The trial judge advocate shall read out the warrant for assembling the court and the names of ocers who are exempted from attending under Sub-section (20) of Section 97 together with the reasons for such exemption. (4) The trial judge advocate shall read out the names of the ocers composing the court and shall ask the prosecutor whether he objects to any of them. (5) If the prosecutor shall have made no objection or after any objection made by the prosecutor has been disposed of, the trial judge advocate shall ask the accused if he objects to any member of the court. 102. Objections to members. The following provisions shall apply member objected to shall at once retire and his place shall be lled up before an objection against another member is taken up; (d) should the president be objected to and the objection be allowed, the court shall adjourn until a new president has been appointed by the convening authority or by the ocer empowered in this behalf by the convening authority; and (e) should a member be objected to on the ground of being summoned as a witness, and should it be found that the objection has been made in good faith and that the ocer is to give evidence as to facts and not merely as to character, the objection shall-be allowed. 103. Further objections. -(1)

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Union Of India v. Shivendra Bikaram Singh 2003 in which event the sentence shall be deferred until after the ndings on such charges are given. If the accused pleads not guilty or refuses to, or does not, plead or if he claims to be tried, the court shall proceed to try the accused. Section 113 provides that when the case for the defence and the prosecutors reply, if any, are concluded, the trial judge advocate shall proceed to sum up in open court the evidence for the prosecution and the defence and lay down the law by which the court is to be guided. Section 114 lays down the duties of the trial judge advocate at such trial. It is the duty of a trial judge advocate to decide at the trial ail questions of law arising in the course of the trial, and specially all questions as to the relevancy of facts which it is proposed to prove and the admissibility of evidence or the propriety of the questions asked by or on behalf of the parties; and in his discretion to prevent the production of inadmissible evidence whether it is or is not objected to by the parties. Under Section 115 it is the duty of the court to decide which view of the facts is true and then arrive at the nding, which under such view ought to be arrived at. Under Section 116 after the trial judge advocate has nished his summing up, the court is to be cleared to consider the nding. The trial judge advocate shall not sit with the court when the court is considering the nding and no person shall speak to or hold any communication with the court while the court is considering the nding. Thereafter under Section 117 the court is required to reassemble and the President shall

The trial judge advocate shall then ask the accused whether he has any further objection to make respecting the constitution of the court; and should the accused raise any such objection, it shall then be decided by the court, which decision shall be nal and the constitution of the court martial shall not be afterwards impeached and it shall be deemed in all respects to have been duly constituted. (2) If the accused should have no further objection to make to the constitution of the court or if any objection is disallowed, the members and the trial judge advocate shall then make an oath or armation in the form set out in Section 104. 18. These provisions lay down the manner in which the proceedings commence before the Court Martial and the objections, which are to be considered even before the trial begins. These provisions, therefore, apply at the pre-trial stage. After the provisions of Sections 101 to 103 are complied with, the President and every member of the Court Martial is required to be administered an oath or armation in the form and manner prescribed by Section 104 of the Act. Thereafter under Section 105 when the court is ready to commence the trial, the trial judge advocate is required to read out the charges and ask the accused whether he pleads guilty or not guilty. If he pleads guilty and the court accepts the plea, it shall be recorded as a nding of the court and the court shall proceed to take steps to pass sentence unless there are other charges to be tried

467 inform the trial judge advocate in open court what is the nding of the court as ascertained in accordance with Section 124. 19. It will thus appear that the steps taken before the stage is reached under Section 104 of the Act for administering oath or armation to the President and the members of the Court Martial, are taken at the pre-trial stage. Though the proceedings commence before the Court Martial for compliance of the requirements of Sections 101, 102 and 103 of the Act, the trial commences only after the President and the members of the Court Martial are administered oath as required by Section 104 of the Act and the accused is produced before the Court Martial. Sub-section (3) of Section 101 directs the trial judge advocate to read out the warrant for assembling the court and the names of ocers who are exempted from attending together with the reasons for such exemption. After the warrant is read out, the trial judge is required to read out the names of the ocers composing the court. It shall then ask the prosecutor whether he objects to any of them. If any objection is made by the prosecutor the same has to be disposed of. However, if the prosecutor has no objection, the trial judge advocate shall ask the accused if he objects to any member of the court. 20. It would thus appear that before the trial commences, objections to membership of the court have to be considered with a view to ensure fairness of trial and to avoid charge of bias against any of the members of the Court Martial. Section 102 lays down the provisions, which shall apply to the disposal of objections raised by the prosecutor as well as the accused. Clause (a) provides that any member may be objected on a ground, which aects his competency to act as an impartial judge, and the trial judge advocate may reject summarily without reference to the members of the court any objection not made on such ground. Clauses (b) to (e) lay down the procedure to be followed by the members of the Court Martial while considering such objections. 21. Section 103 refers to further objections. Clause (a) of Section 103 begins with the words the trial judge advocate shall then ask the accused whether he has any further objections to make respecting the constitution of the court. If the accused raises any such objection, that is required to be decided by the court, which decision shall be nal and the constitution of the court martial shall not be afterwards impeached, and it shall be deemed in all respects to have been duly constituted. In case the accused has no further objection to make or the objection made is disallowed, the members and the trial judge advocate shall then make an oath or armation in the form set out in Section 104. From the scheme of these sections it is quite apparent that before the trial commences, all objections to the constitution of the Court Martial must be considered and decided. Section 102 is conned to an objection on the ground, which af-

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Union Of India v. Shivendra Bikaram Singh 2003 down in Clauses (b) to (e) of Section 102, according to the appellant it is open to the trial judge advocate to reject summarily even an objection to a member on the ground which aects his competency to act as an impartial judge. It is contended that even if the ground urged, though it aects the competency of a member to act as an impartial judge, the trial judge advocate may reject the same if he nds no merit in it. 23. We are inclined to accept the contention put forth by the respondent. Clause (a) of Section 102 is in two parts. The rst part refers to any objection against a member on the ground, which aects his competency to act as an impartial judge. The second part deals with the authority of the trial judge advocate to reject summarily without reference to the members of the court any objection not made on such grounds. It was not disputed before us that if there was a valid ground urged aecting the competency of a member to act as an impartial judge, the same has to be decided in accordance with the procedure laid down under Clauses (b), (c), (d) and (e) of sec tion 102. The rst part of Clause (a) enables the prosecutor and the accused to raise an objection of the nature specied. The second part of Clause (a) only empowers the trial judge advocate to reject summarily any objection not made on such grounds. To us it appears that the clear intention of the legislature was that at the stage of Section 102 only the objections relating to membership of the court martial on a

fects the competency of the President or a member of the Court Martial to act as an impartial judge. As would be clear from a reading of this section as a whole it does not provide for the consideration of any other objection at that stage. The section that follows i.e. Section 103 refers to any further objection respecting the constitution of the Court Martial. It is, therefore, open to the accused to raise further objections on other grounds respecting the constitution of the Court Martial, and for this purpose he may urge the ground of breach of any or the provisions of the subsections of Section 97 of the Act, or any other objection which he has respecting the constitution of the Court Martial. These objections have to be decided under Section 103 by the Court Martial, which must mean all the members of the Court Martial, who are entitled to sit as a Court after the disposal of objections, if any, under Section 102 of the Act. 22. We then come back to Section 102 of the Act, particularly Clause (a) thereof. The real controversy in the instant case is the nature of authority exercised by the trial judge advocate to reject summarily, without reference to the members of the Court Martial any objection not made on a ground, which aects the competency of a member to act as an impartial judge. While the respondent contends that all objections made on a ground which aects the competency of a member to act as an impartial judge have to be decided in accordance with the procedure laid

469 ground aecting the competency of any member to act as a court martial are required to be considered. Every other objection regarding constitution of the court martial on other grounds has to be considered later, and that is what is provided by Section 103 of the Act. All grounds other than the ground which aects the competency of a member to act as an impartial judge, is required to be decided by the court, and no discretion is left with the trial judge advocate. Reading the two provisions together the scheme of the Act appears to be that in the rst instance the court has to consider whether any of its member is disentitled to sit as a member of the court martial on the ground that he is not competent to act as an impartial judge. No other objection is to be entertained at this stage. Therefore, when an objection to any member is raised on a ground other than the ground, which aects his competency to act as an impartial judge, the trial judge advocate is authorized to reject the same summarily without reference to the members of the court martial. But if any member is objected to on the ground, which aects his competency to act as an impartial judge, the trial judge advocate has no discretion in the matter and he must place the matter before the court, which must consider the objection in accordance with the procedure laid down in Clauses (b) to (e) of Section 102. Whether there is any merit in the objection, is not a matter to be considered by the trial judge advocate, since he is not vested with the jurisdiction to decide such objections. That power has to be exercised by the court itself. The only authority that is given to the trial judge advocate under Clause (a) of Section 102 is to reject at that stage all other objections without reference to the members of the court martial which are not on a ground which affects the competency of a member to act as an impartial judge. This is because such other objections may be considered later after the constitution of the court is rst nalized after disposal of objections to membership of the court martial on the ground, which aects the competency of any member to act as an impartial judge. The scheme of the Act, therefore, is to provide for two stages at which the objections to the constitution of the court martial have to be considered. Section 102 claries that at that stage only those objections have to be considered which proceed on a ground, which aects the competency of any member to act as an impartial judge. All other objections to the constitution of the court have to be considered after the objections on the grounds specied in Clause (a) of Section 102 of the Act are disposed of. Those other objections have to be disposed of in the manner laid down under Section 103 of the Act. 24. The High Court has taken the same view as we have taken of the provisions of Sections 102 and 103 of the Act. The trial judge advocate, in the instant case, rejected summarily the objection taken by the respondent to the membership of two of the ocers, while the objection against the third ocer was rejected

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Union Of India v. Shivendra Bikaram Singh 2003 fail to do so, In that event his objection may be rejected by the members of the court martial but that is not to say that the ground on which objection was taken did not aect the competency of a member to act as an impartial judge. The jurisdiction of the trial judge advocate under Clause (a) of Section 102 is limited to the extent of nding out whether the objection is on the ground specied in the rst part of Clause (a). If it was such a ground, then regardless of its merit, the objection had to be decided by the court martial in accordance with the procedure laid down in that section. If it was not such a ground as specied in the rst part of Section 102, it was then his discretion to summarily reject the same. The words of the section are may reject summarily which is indicative of a discretion vested in him. That is because if the objection is an objection respecting the constitution of the court, but not on the ground specied in Clause (a) of Section 102, then he may rather than dismissing the objection reserve it for consideration after the objections under Sections 102 are disposed of and the objections under Sections 103 are taken up for consideration. 25. We are, therefore, in agreement with the High Court that the trial judge advocate exceeded his jurisdiction under Clause (a) of Section 102 of the Act and because of his erroneous exercise of jurisdiction the objections relating to the constitution of the Court Martial remained undecided by the competent authority, and yet the members of

by the court itself. Having perused the minutes of the trial judge advocate it cannot be said that the ground on which the objection was taken was not one, which aected the concerned member to act as an impartial judge. The objection as against the president of the court, namely Captain Rajiv Girotra was that he was a course-mate of Cdr. Baijal, with whose wife the respondent was alleged to have had adulterous connections. Similar objection was taken to the membership of Cdr. Suresh Mehta that he was the course-mate of the complainant. It would thus appear that the respondent objected to their membership on a ground, which aected their competency to act as an impartial judge. The question whether the objection was sustainable or not, was a question which had to be decided by the members of the Court Martial in accordance with the provisions of Clauses (b) to (e) of Section 102. Instead of following the procedure laid down by the aforesaid subsections, the trial judge advocate usurped the jurisdiction of the court and rejected summarily the objection of the respondent after going through the material on record, holding that the objections were not sustainable. In doing so he clearly over stepped the limitations of his jurisdiction and decided a matter which the court alone, and not he, was empowered to decide. The question whether the ground is substantiated by material brought on record is a question, which relates to the merit of the objection. The respondent may be able to substantiate the ground urged by him or he may

471 the Court Martial proceeded with the trial and found the respondent guilty. This was done in breach of a mandatory provision of Section 102 of the Act. Noncompliance of the mandatory provision of Section 102 is an inrmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. It was so held by the Court in Ranjit Thakurs case (supra) where the Court considering a similar provision, though under the Army Act, observed :in the present case there is a noncompliance with the mandate of Section 130 with the attention consequence that the proceedings of the Summary Court Martial are rendered inrm in law. 26. This Court referred to similar observations made in Lt. Col. Prithi Pal Singh Bedi v. Union of India (supra) where this Court observed :-

.....Whenever an objection is taken it has to be recorded. I n orThe procedural safeguards con- der to ensure that anyone objected templated in the Act must be con- to does not participate in disposing sidered in the context of and corre- of the objection..... sponding to the plenitude of the sum......This is a mandatory requiremary jurisdiction of the Court Marment because the ocer objected to tial and the severity of the consecannot participate in the decision quences that visit the person subdisposing of the objection. ject to that jurisdiction. The proce.....The provision conferring a dural safeguards should commensurate with the sweep of the powers. right on the accused to object to The wider the power, the greater the a member of the Court Martial sitneed for the restraint in its exercise ting as a member and participating and correspondingly, more liberal the in the trial ensures that a charge of construction of the procedural safe- bias can be made and investigated guards envisaged by the statute. The against individual members composoft quoted words of Frankfurter, J. in ing the Court - Martial. This is preVitarelli v. Seaton, 359 US 535 are eminently a rational provision which goes a long way to ensure a fair trial. again worth recalling : .....If dismissal from employment is based on a dened procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed....... This judicially evolved rule of administrative law is now rmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. 27. On the question of bias, the Court in Ranjit Thakurs case (supra) observed thus :-

The second limb of the contention is as to the eect of the alleged bias on the part of respondent 4. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and whether respondent 4 was What emerges, therefore, is that likely to be disposed to decide the

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Union Of India v. Shivendra Bikaram Singh 2003 tion by the Chief of the Naval Sta and then by the Union government then ordinarily there should be a nality to the ndings arrived at by the competent authority in the Court Martial proceedings. It is of course true and notwithstanding the nality attached to the orders of the competent authority in the court martial proceedings the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of nding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for nding out that whether there has been violation of the principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act. 30. Learned counsel for the appellant submitted that except one, the aforesaid decisions were rendered while considering the provisions of Section 130 of the Army Act, which is dierently worded, it may be that Section 130 of the Army Act is differently worded, but that will not make any dierence to the application of the principles laid down by this Court in the aforesaid decisions Section 130 of the Army Act as well as Section 102 of the Navy Act relate to the objection to the inclusion of any ocer as member of the Court Martial. It may be that the procedure prescribed is not identical, though similar, but if the provision

matter only in a particular way. It is the essence of a judgment that it is made after due observance of the judicial process; that the court or Tribunal passing it observes, at least the minimal requirements of natural justice is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial coram non judice.. (See Vassiliades v. Vassiliades, AIR 1945 PC 38). 28. In Union of India and Ors. v. Major A. Hussain (supra), while dealing with the parameters of judicial review and interference with Court Martial proceedings this Court observed :23. Though court martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the Court Martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a Court Martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands. (emphasis supplied) 29. To the same eect are the observations in Union of India v. Himmat Singh Chahar (supra). It was said, while considering provisions of the Navy Act, 1957 :4. Since the entire procedure is provided in the Act itself and the Act also provides for a further considera-

473 is mandatory in nature and there is non compliance with that provision, the consequences will be the same. We, therefore, hold that noncompliance with Section 102 of the Navy Act has vitiated the proceedings before the Court Martial. 31. This takes us to the second submission urged on behalf of the appellant that the respondent has waived his right to raise such objection since he did not challenge the ruling of the trial judge advocate by ling a writ petition before the High Court. We nd no merit in this submission because it is not expected of an accused to challenge every ruling in the course of a trial as that would unnecessarily protract the trial, something, which is not encouraged by the courts. He raised that objection in his petition under Section 162 of the Act and thereafter raised the same objection in the instant writ petition from which this appeal arises. It cannot, therefore, be said that he waived his right to raise this objection merely because he did not challenge the ruling of the trial judge advocate immediately after it was given at an intermediate stage of the proceedings. tain the charges. Counsel for the respondent on the other hand submitted that it was within the power of judicial review of the High Court to quash an order of conviction recorded by the Court Martial if it came to the conclusion that the nding of the Court Martial was perverse as there was no legal evidence whatsoever to support the conviction. In our view, in the facts and circumstances of this case this question had become academic once it was found that the proceedings before the Court Martial were vitiated on account of noncompliance with the provisions of Section 102 of the Act. If the very constitution of the Court Martial was not in accordance with law, then any proceedings taken before such an improper Court Martial was a nullity as far as the trial is concerned. As a consequence, the evidence recorded before such a Court Martial had no sanctity in law and, therefore, did not deserve any further consideration. 33. We, therefore, set aside the nding recorded by the High Court that there was no legal evidence whatsoever to support the charges leveled against the respondent and that he was entitled to benet of doubt. The ndings of the High Court on other questions are armed. The order of conviction passed by the Court Martial as well as the orders made under Sections 162 and 163 of the Navy Act have been rightly quashed by the High Court.

32. We, however, nd considerable force in the submission urged on behalf of the appellant that having found that there was a breach of mandatory provision of the Act which vitiated the proceedings before the Court Martial, the High Court was not justied in considering the evidence on record even for the limited purpose of discovering whether 34. In the facts and circumthere was any legal evidence to sus- stances of the case we leave it to

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Union Of India v. Shivendra Bikaram Singh 2003 the charges against the respondent. However, nothing said in this judgment shall be construed as expression of opinion on the merit of the charges, which shall be considered in the light of the evidence, which may be produced by the prosecution before the Court Martial or the reconstituted Court Martial, as the case may be, if the competent authority so decides. 35. Before parting with this judgment we may notice the submission urged on behalf of the respondent that the retrial of the respondent, even if ordered, will be barred by limitation in view of the provision of Section 79 of the Act. According to learned counsel for the respondent the trial commences when the charges are read out to the accused and his plea is recorded in accordance with Section 105 of the Act. We do not wish to express any opinion on this question. However, the respondent will be at liberty to raise this question in appropriate proceedings before the appropriate forum, if occasion arises. 36. This appeal is accordingly dismissed but subject to the direction aforesaid.

the authorities concerned to consider whether or not to continue the Court Martial proceedings from the stage of Section 102 of the Act. We make no direction in that regard. In case it is decided to continue the proceeding, the objections raised by the respondents shall be placed for consideration and decision by the members of the Court Martial in accordance with the procedure laid down in Clauses (b) to (e) of Section 102 of the Act. This is on the assumption that all the members of the Court Martial are available to act as such. In the event of non-availability of any or all the members of Court Martial earlier constituted, it will be open to the competent authority to constitute a fresh Court Martial. In that event the question whether the objections survive or not may have to be reconsidered depending on whether the president or the members objected to continue to serve on the Court Martial. Thereafter further proceedings shall be taken in accordance with law. The Court Martial shall not be inuenced by any observation made by the High Court in its impugned judgment. We have scrupulously avoided reference to the facts of the case and the merit of

Chapter 39

Jasbir Kaur v. Union Of India 2003

Jasbir Kaur & Ors v. Union Special Leave Petition (Civil) Of India & Ors on 13 Novem- Nos.12904-12909 of 2002, Special ber, 2003 Author: Srikrishna Bench: Leave Petition (Civil) No.14275 of K.G.Balakrishnan, B.N.Srikrishna 2002 and Special Leave Petition (Civil) Nos.14487 of 2002, CASE NO.: Transfer Case (civil) 38 of 2002 PETITIONER: SRIKRISHNA, J. The only issue thrown up by this group of ca ses is : What should be Jasbir Kaur & Ors. the uniform to be worn by members RESPONDENT: of the Military Nursing Services? Persistence of parties and ingenuity Union of India & Ors. DATE OF JUDGMENT: of counsel have succeeded in giving a constitutional moment to an issue 13/11/2003 which is but an one of administration BENCH: of an auxiliary branch of the Armed K.G.Balakrishnan & B.N.SrikrishnaServices. JUDGMENT: A force called Indian Military Nursing Service was constituted as JUDGMENT part of the armed forces of the Union With of India by Ordinance No.XXX of Transfer Case (C) Nos.39-42 of 1943 titled The Indian Military Nurs2002 ing Service Ordinance, 1943, which Transfer Case (C) No.46 of 2002, was brought into force on 15th Transfer Case(C) Nos.54-56 of September, 1943. Section 3 of the said Ordinance declares that there 2002, shall be raised and maintained in the Transfer Case(C) No.70 of 2002, manner provided in the Ordinance

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Jasbir Kaur v. Union Of India 2003 auxiliary force, the members of this service are not subject to all the provisions of the Army Act and have been treated separately while being part of the Indian Army. By an order dated 25.1.2000 the Additional Director General of Military Nursing Service issued a Dress Code for members of IMNS prescribing the Dress Code for dierent purposes. We are not concerned with the details of the prescribed uniforms for that in no way aects the legal issue sought to be canvassed before the Court. Nor are we really concerned with the reasons which impelled the appropriate authority to prescribe any particular dress as the uniform to be worn by the members of the IMNS. However, it appears that a number of problems were faced in the hospital environment in the wake of the dress code issued by the letter dated 25.1.2000. These problems were brought to the notice of Medical Services Advisory Committee. With an intent to solve these problems, which pertained to patient care related issues, a decision was taken to modify the dress code by an order issued on 11.9.2001. The said order was challenged by members of IMNS by dierent writ petitions before several High Courts, inter alia, on grounds of violation of the Fundamental Rights under Articles 14 and 21 of the Constitution. The Bombay, Allahabad and Karnataka High Courts dismissed such writ petitions on the ground that no issue pertaining to Fundamental Rights arose and observing that the issue of prescribing uniform for the IMNS was a mat-

as part of the armed forces of the Union and for service with the Indian Military forces an auxiliary force which shall be designated as Indian Military Nursing Service. The Ordinance prescribes the conditions of eligibility for appointment in section 6. Section 9 of the Ordinance provides that the provisions of the Indian Army Act, 1911 shall, to such extent and subject to such adaptations and modications as may be prescribed, apply to members of the Indian Military Nursing Service as they apply to Indian commissioned ocers, unless they are clearly inapplicable to women. Section 10 of the said Ordinance empowers the Central Government to make Rules to carry out the purposes of the ordinance and section 11 vests in The Chief of the Army Sta the power to make regulations providing for all matters to be laid down and generally for all detail connected with the organisation, pay allowances, duties, discipline, training, clothing, equipment and leave of members of the Indian Military Nursing Service. In exercise of the powers vested in him The Chief of Army Sta prescribed the appropriate uniform to be worn by the members of the Indian Military Nursing Service. The prescribed uniforms were changed from time to time taking into account the advice of special committees appointed by The Chief of the Army Sta to periodically review the issue. Despite the fact that the Indian Military Nursing Service (hereinafter called as IMNS) has been made an

477 ter well within the competence of the military authorities. Some other High Courts in the meanwhile admitted similar writ petitions and issued interim orders. Special leave petitions were moved against the decisions of the Allahabad, Bombay and Karnataka High Courts in this Court. To avoid inconsistency in judicial decisions, this Court admitted the special leave petitions and also transferred all the pending writ petitions to itself by an order made on 28.1.2002 in Transfer Petition (C) Nos.851-857 of 2001, which reads as follows: resented to this Court that the Union of India wanted to appoint a Review Committee to consider the question of uniform to be worn by the nurses in the Army. This Court made the following order: Upon Court hearing counsels the

made the following order: There shall be an interim order maintaining status quo in regard to the uniform of Nurses concerned in these

petitions. Uniform they are wearWe have heard learned counsel ing as on today shall be continued to for the parties. The writ petitions be worn. If by virtue of interim ormentioned in prayer ders of the High Court or otherwise column of these petitions, in our at dierent places dierent opinion, involves substantial quesuniforms are being worn, same tion of law. Therefore, it is just nec- shall essary this issue should be decided by continue till the disposal of these a single court. Taking into considerpetitions. ation the importance of the issue, we List these matters for nal disthink it appropriate that these petiposal in the month of September tions should stand transferred to this court for disposal in accordance with 2002. In the mean time if the Union of India wants to appoint a review law. It is so transferred. committee to consider the question It is pointed out that some of the of uniform to be worn by the Nurses High in the Army, they are free to do so Courts have issued interim orders and report to this Court. in favour of the petitioners. If it is The Union of India thereafter so, those interim orders will continue constituted a Committee known as until further orders of this Court. Military Nursing Service Dress ReAccordingly, these petitions are view Committee which was comallowed. The writ petitions stand posed of the Director General of transferred to this Court. Medical Services (Army), as the Liberty to le additional docu- Chairman, and representatives from ments. the Director General of Armed When these petitions came up for Forces Medical Service, representahearing on 6th May, 2002 it was rep- tive from DGMS (Army), represen-

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Jasbir Kaur v. Union Of India 2003 tient wards. 5. In consonance with the directions of the Court it is to be ensured that there is a clear dierence and distinction in terms of dress between the doctors and the nurses.

tative from DGMS (Navy), representative from DGMS (Air Force), Dy. Judge Advocate General and ADG Military Nursing service as members. The terms of reference of this Committee were the following: Terms of Reference 1. To carry out a comprehensive review of the MNS Dress Code from its inception to the present dress code as promulgated vide army HQ letter Nos:

6. To go into the universality of dresses as worn by nursing sta in other major civil hospitals, para military hospitals and where possible nursing sta of foreign armies to draw suitable parallels to help evolve (a) B/70001/DGMS-4A dt. 25 a betting dress code. Jan 2000 7. While making its recommendations on the dress code the issue (b) B/42706/AGREEMENT/CWof any expenditure and its nancial 1 dated 11 implications thereto should be borne September 2001 as amended vide in mind and recommendations made our letter No. B/42706/AGREEMENT/CWthereto. 1 dated 25 October 8. The Committee will also lay 2001 down the 2. To Ascertain and deliberate channel of promulgation of the upon various issues raised by MNS new dress code including the recomagainst the existing dress code so mended time frame for its implemenpromulgated and analyse the cause of tation. objection to the same including the The Dress Review Committee issue of dress violations. held its deliberations on 8th and 3. To go into all the issues 9th July 2002 and made a reinvolved and suggest a dress code, port. Though Major General P.K. whether it be the existing dress duly Sethi, Addl DGMNS and Brig.(Mrs.) modied, or a new dress code. The Usha Sikdar, DDMNS Central Comdress code so recommended should mand, were members of the Commitbe betting, serve functional requiretee, they expressed their reservations ment and be in keeping with the with regard to the report and gave ethos and requirement of the Medidissenting notes. cal Services. The Dress Review Committee 4. To ensure that the dress code went into the historical background so of the constitution of the Military recommended facilitates the e- Nursing Service as a separate cadre, cient discharge of the primary duty the applicable dress regulations for of the MNS sta which is of patient the dierent services and the probcare and ecient management of pa- lems faced in the hospital environ-

479 ment, which were brought to its notice. It also took into account a number of objections made by the IMNS questioning the rationality and validity of the 11th September 2000 order. The Dress Review Committee meticulously considered the objections and having considered various options found in favour of the Safari Suit of soothing colour (Beige colour) in suitable fabric with badges of rank on shoulders to meet the seasonable requirements of summer and winter, as the best available option. It also recommended that the change over should be eected within a time frame of three months and that the cost of the recommended dress should be borne by the Government as one time measure in the form of an outt allowance by obtaining necessary sanction from the competent authority. A copy of the Dress Review Committee report has been placed on the record before us and learned counsel have taken us through it. Learned counsels, Mr. R. Venkataramani and Mr. M. N. Krishnamani, appearing for petitioners in dierent cases, basically urge two contentions. They contend that the prescribed uniform violates Articles 14 and 21 of the Constitution. When it was pointed out to the learned counsel that there was no question of Article 21 being considered unless they were able to demonstrate that the prescribed uniform was outrageous of modesty and dignity of womanhood or that it was so inconvenient as not to bear the onslaughts of nature, both learned counsel did not press the contentions based on Article 21. They however, contended that Article 14 was violated as the uniform was intended to discriminate against the members of the IMNS by making them out to be a separate class. In our view, the contention is entirely misconceived and unfounded. That the Indian Military Nursing Service is a separate class, sui generis, even though an auxiliary force of the Indian Military, is an undeniable fact. The historical background in which this force was established and the legal provisions applicable to it leave no manner of doubt that notwithstanding that it is a part of the Indian Army, IMNS is a distinct but separate class by itself. In any event, whether any part of the military services should have any uniform, and, if so, what should be the uniform, is an issue entirely within the province of The Chief of Army Sta by reason of Army Act, the Indian Military Nursing Act and the Regulations made by the Chief of Army Sta by the powers derivable therefrom. We see no scope for application of Article 14 in such matters, nor is any case made out therefor. A major grievance made on behalf of the petitioners was that no heed was paid to their objections before the Dress Code was nally decided. Even if true, the contention has lost its force presently. When taken through the Dress Review Committees Report by the learned Additional Solicitor General, we noticed that the said Committee has meticulously applied its mind

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Jasbir Kaur v. Union Of India 2003 the Army Act which requires us to interfere in exercise of our constitutional powers. The petitions have no merit and are liable to fail. The members of the IMNS have the glorious role model of the Lady with the Lamp, Florence Nightingale, who went around on the battle eld, caring more for the patients than for her own life. We hope that the shining example of the Lady with the Lamp shall continue to be emulated by the members of the Indian Military Nursing Service. All the petitions dismissed. Interim orders vacated. The respondents are at liberty to take any appropriate decision. There shall be no order as to costs.

to several objections raised by the representatives of the IMNS. Each objection has been carefully examined and appropriate recommendation has been made by the review committee. Apart from aording an opportunity of putting forth their views in the matter, the members of IMNS could not have asked for anything higher. Each grievance has been carefully considered and addressed by the Dress Review Committee, and it is for the army authorities to take appropriate decision. A decision such as the one challenged before us can hardly be faulted unless on the ground of Wednesbury principle of rationality. In our view there is no such irrationality in the decision of

Chapter 40

Union Of India v. Ashok Kumar 2005

Union Of India (Uoi) And Ors. v. Ashok Kumar And Ors. on 18 October, 2005 Equivalent citations: AIR 2006 SC 124, JT 2005 (12) SC 515, 2005 (8) SCALE 397 Author: A Pasayat Bench: A Pasayat, C Thakker JUDGMENT Arijit Pasayat, J. Page 1138 tained in Section 10 of the Border Security Force Act, 1968 (in short the Act) read with Rule 20 of the Border Security Force Rules, 1969 (in short the Rules). The appeal led by the delinquent ocer was allowed upsetting the judgment of the learned Single Judge who had dismissed the writ petition led by the delinquent ocer.

3. Factual position, ltering out 1. Leave granted in S.L.P.(C) unnecessary details, is as follows: 21363 of 2005/CC No. 6855 of 1999. There was a raid in the house of 2. Both these appeals have ma- militants on 23rd and 24th March, trix in a judgment rendered by a Di- 1992. The delinquent ocer bevision Bench of the Jammu Kashmir ing Deputy Inspector General in High Court in a Letters Patent Ap- Command was having Supervisory peal led by Ashok Kumar, the re- power over the Commandant who spondent in Civil Appeal No. 4792 raided the hideout of militants. On of 1999 and the appellant in the con- the night intervening 23rd and 24th nected appeal. For the sake of con- March 1992 house of one Mohd. venience said Ashok Kumar is de- Maqbool Dhar in Bemina Colony scribed hereinafter as the delinquent of Srinagar was raided by 23 men ocer. By the impugned judgment of the force. During the raid two the High Court held that the removal militants described as dreaded milof the delinquent ocer from service itants namely Javed Ahmed Shalla was in violation of the provisions con- and Mohd. Siddiqui So were appre-

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Union Of India v. Ashok Kumar 2005 (b) Failure to make any observations regarding serious omissions and discrepancies in the unit site report and detailed report. (c) Suppression of information regarding seizure of six weapons out of nine which were not declared by the Commandant. (d) Suppression of information regarding seizure of household items. (e) Suppression of information regarding seizure of a substantial quantity of gold ornaments. (f) Failure in supervisory duties by not giving expected directions to the Commandant in regard to accounting and disposal of seized items. On 18.9.1992 Director General recorded his satisfaction that the material witnesses connected with case will not be available and as such the trial of the delinquent ocer before Security Force Court was inexpedient and impracticable and opined that further retention of the delinquent ofcer in service was undesirable. On 23/25.9.1992 show-cause notice was served upon the delinquent ocer as to why his services be not terminated in accordance with Rule 20 of the Rules. On 31.10.1992 he sent reply to the show cause notice. On 13.1.1993 Inspector General found that there was adequate evidence both oral and documentary to prove the various charges against the delinquent ocer and he had no satisfactory explanation to the various charges and recommended that the competent authority may call upon the delinquent ocer to resign under Rule 20(4) or on his refusal to

hended. According to the authorities huge quantity of arms, ammunitions and explosives and household articles including gold ornaments were recovered. The recovery of arms, ammunition and explosives and gold ornaments were not reected in the seizure report sent to higher authorities. Respondent was not present at the spot and he indicated his presence at the scene of operation with a view to claim undue Page 1139 credit of achievements of the operation. Full quantity of seized articles was not reected in the report. 31 major weapons were recovered but only 22 were shown. Two pistols, ve AK-56 ries, one rocket launcher and one Telescopic Rie were not shown in the list of ammunition. Out of 31 gold ornaments 25 pieces were not shown in the list of seized articles. Second situation Report was also sent, but the same also did not reect recovery of complete articles. To cover up these lapses another encounter was shown to have taken place and a report regarding fake encounter was sent vide No.0-7209 which indicated the recovery of some gold ornaments. Another report was also sent from oce of delinquent ofcer declaring goods which were not declared earlier. It was admitted that recovery of some weapons was not reected in earlier report. 4. Therefore, a Sta Court of Inquiry was ordered to be held on 16th May, 1992 and the delinquent ocer was found responsible for following act of omission and commission: (a) Falsely showing his presence at the scene of operation and search.

483 do so, compulsorily retire or remove him from service with pension and gratuity. On 6.2.1993 Director General after considering the show cause notice, reply to the show cause notice, report of the Enquiry Ocer and view of Inspector General, BSF recorded his satisfaction that it was neither expedient nor practicable to conduct the trial and in exercise of his powers under Rule 20(4) of the Rules recommended to Central Government that delinquent ocer be called upon to resign from service. The recommendation of the Director General, BSF that it was inexpedient or impracticable to hold Page 1140 inquiry and calling upon delinquent ocer to resign was considered by the State Minister who expressed his view as under:It is a very serious case which has brought bad name to the BSF in the State. I agree that the penalty of removal from service without pensionary benets should be imposed on Shri Ashok Kumar DIG, BSF as proposed above. DG, BSF should also expedite imposition of penalty against the other delinquent ocers. sucient punishment. We may also prosecute him so that it may have deterrent eect. By order dated 1.6.1993 Government of India in exercise of power conferred under Section 10 of the Act read with Rule 20(5) of Rules removed the delinquent ocer from the services without pensionary benets with immediate eect. 5. The delinquent ocer led a Writ Petition no.663 of 1993 in the High Court of Himachal Pradesh challenging the order dated 1.6.1993 whereby he was removed from service without pensionary benets. The writ petition was dismissed by the Himachal Pradesh High Court by order dated 3.9.1997 on the ground that it had no jurisdiction to deal with the writ petition. Thereafter, the delinquent ocer led a Writ Petition no.1277/1997 in the Jammu and Kashmir High Court. An interim order was passed on 3.9.1997 directing the respondents in the writ petition to treat the writ petitioner to be in service with all service benets as he was enjoying till 2.9.1997. By order dated 5.2.1999 the learned Single Judge dismissed the writ petition. The learned Single Judges conclusions are essentially as follows:-

The Home Minister considered the entire record of the case including the recommendations of the (i) Plea of res-judicata cannot be desk ocer, Director General, Minis- accepted. ter of States opinion and thereafter, (ii) Delinquent ocer was given recorded his own opinion. Home full and reasonable opportunity in Minister accorded his approval as the Court of Inquiry which was conunder:ducted in terms of Chapter XIV of We may rst remove him from the Rules, and he was found guilty service and also not being eligible of six lapses. for pension looking to the nature of (iii) The view formed by Comthe oence, I dont think this will be

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Union Of India v. Ashok Kumar 2005

petent Authority to dispense with holding of General Security Force Court was on the basis of material on record.

Business) Rules, 1961 he could only be removed by the Prime Minister and the President in terms of Serial No.39 of the Third Schedule read (iv) The decision to remove delin- with Rule 8 of the Transaction of quent ocer from service was not ac- Business Rules, 1961. tuated by malade consideration. (iv) The authorities have re(v) Decision taken by Home Min- moved him from service without folister suered from no inrmity, and lowing the provisions of law conagainst him no malice has been tained in Section 10 of the Act read with Rule 20 of Rules, as the Central shown. Government has neither recorded the (vi) Rules of business which resatisfaction to the eect that it is inquired matter to be placed before expedient and impracticable to hold President of India are not applicable inquiry nor formed any opinion that to the delinquent ocer. his further retention in service is unLetters Patent Appeal was led desirable, for terminating the serby delinquent ocer against the or- vices under Rule 20 of Rules. der of learned Single Judge. 7. The Division Bench by the Page 1141 impugned judgment concurred with 6. In support of the appeal, fol- the ndings expressed by the learned Single Judge so far as rst three lowing points were urged: (i) There is no independent or points are concerned. So far as the sucient material for taking action fourth point is concerned it was held under Rule 20 and the material re- that the Central Government was relied upon is only that which has been quired to record satisfaction that it collected by the Court of Inquiry, the was inexpedient and impracticable to hold inquiry, and to form opinion reuse of which is not permissible. lating to delinquent ocer for retenThe respondent can be tried betion in service. According to the fore the Security Force Court as the High Court the delinquent ocer had show cause notice has been served been removed from the service withand the witnesses are also available. out following the provisions of Sec(ii) Learned Single Judge has tion 10 of the Act and Rule 20 of misdirected himself in recording the the Rules. The High Court noticed nding and maintaining that it was that two authorities are authorized not expedient and practicable to hold to act under Rule 20 of the Rules. inquiry. The procedure to be followed to ter(iii) He is a Class-1 Ocer of the minate the services of an ocer is BSF under Ministry of Home Aairs available under Section 10 of the Act and, therefore, as per Item No.13 of by the Central Government on acthe First Schedule read with Rule 2 count of misconduct. The expresof the Govt. of India (Allocation of sion as the case may be relates to

485 the action to be taken by the Central Government and the action to be taken by the Director General. It was held that both the authorities did not have concurrent jurisdiction; otherwise the expression as the case may be would be rendered surplus and meaningless. Reference was made to Section 19 of the Army Act, 1959 (in short Army Act) and Rule 14 of the Army Rules 1954 (in short Army Rules). It was noted that the language was in pari materia, except the words as the case may be with corresponding Section and Rule of the Act and the Rules respectively. Therefore, it was held that use of expression as the case may be is signicant and indicative of two dierent spheres of activity for two dierent authorities. The Director General was not the appointing authority of the delinquent ocer and, therefore, it was held that only the Central Government could have taken action and not the Director General. It was incumbent upon the Central Government to record satisfaction that it was inexpedient and impracticable to hold trial, before the jurisdiction to take further action could be assumed. eral is given power to conduct inquiry and is also the appointing authority. 9. In support of the other appeal led by the delinquent ocer, apart from the supporting judgment of the Division Bench it was submitted that the Division Bench of the High Court was not justied in its conclusions so far as the other three points are concerned. Specic allegations of malades were not dealt with by the High Court. It was also submitted that in any event there was no application of mind by the concerned Minister, and merely on the opinion of the Desk Ocer the order was passed. Considering the limited scope for judicial review it was submitted that the view of the Division Bench is irreversible. As the basic controversy revolves round the scope and ambit of Rule 20, it is necessary to quote the same. The said Rule reads as follows:

20. Termination of service of ocers by the Central Government on account of misconduct: (1) When it is proposed to terminate the service of an ocer under Section 10 on account of mis-conduct, he shall be given an opportunity to show cause Page 1142 in the manner specied in Sub-rule 8. In support of the appeal led (2) against such action:by the Union of India learned AdProvided that this sub-rule shall ditional Solicitor General submitted not apply:that the Division Bench of the High (a) where the service is termiCourt has failed to take into account nated on the ground of conduct the true scope and ambit of Rule 20. which has led to his conviction by It was pointed out that Rule 14 of a criminal court or a Security Force the Army Rules dealt with any catCourt; or egory of employees, while Rule 20 of (b) where the Central Governthe Rules dealt with ocers. It was ment is satised that for reasons, to pointed out that the Director Gen-

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be recorded in writing, it is not ex(4) When submitting a case to pedient or reasonably practicable to the Central Government under the give to the ocer an opportunity of provision of Sub-rule (2) or Subshowing cause. rule (3), the Director- General shall (2) When after considering the make his recommendations whether reports of an Ocers misconduct, the Ocers service should be termithe Central Government or the nated, and if so, whether the ocer Director-General, as the case may be, should be, is satised that the trial of the Ocer by a Security Force Court is inexpedient or impracticable, but is of the opinion, that the further retention of the said ocer in the service is undesirable, the Director General shall so inform the ocer together with particulars of allegation and report of investigation (including the statements of witnesses, if any, recorded and copies of documents if any, intended to be used against him) in cases where allegations have been investigated and he shall be called upon to submit, in writing, his explanation and defence; (a) dismissed from the service; or (b) removed from the service; or (c) retired from the service; or (d) called upon to resign.

(5) The Central Government, after considering the reports and the ocers defence, if any, or the judgment of the Criminal Court, as the case may be, and the recommendation of the Director-General, may remove or dismiss the ocer with or without pension, or retire or get his resignation from service, and on his refusing to do so, the ocer may be compulsorily retired or removed from Provided that the Director- the service with pension or gratuity, General may withhold disclosure of if any, admissible to him. such report or portion thereof if, in Sub-rule (1) deals with the prohis opinion, its disclosure is not in posal to terminate the service under the interest of the security of the Section 10 on account of mis-conduct State. and requires an opportunity to be (3) In the event of explanation of given to show cause in the manner the Ocer being considered unsatis- stated. Operation of Sub-rule (1) is factory by the Director-General, or ruled out in the category of cases when so directed by the Central Gov- covered by the proviso to Sub-rule ernment, the case shall be submitted (1). Sub-rule (2) deals with modalto the Central Government with the ities to be followed when either the Ocers defence and the recommen- Central Government or the Directordations of the Director-General as to General, as the case may be, is satisthe termination of the Ocers ser- ed that the trial of the Ocer by a vice in the manner specied in Sub- Security Force Court is inexpedient or impracticable and yet either the rule (4). Central Government or the DirectorPage 1143 General, as the case may be, is of

487 the opinion that further retention of the concerned ocer in the service is undesirable. Thereafter, comes to the role of the Director- General. He is required to inform the ocer together with particulars of allegation and report of the investigation, (including the statement of witnesses) if any, which is intended to be used against the delinquent ocer in cases where allegations have been investigated. The concerned ocer is given opportunity to submit his explanation and defence. Proviso to Subrule (2) makes it clear that DirectorGeneral may withhold disclosure of such report or portion thereof if he is of the opinion that the disclosure is not in the interest of the security of the State. Sub-rule (3) relates to consideration of the explanation furnished by the concerned ocer and the conclusions of the DirectorGeneral on consideration of the explanation. Either when the explanation is considered unsatisfactory by the Director-General or where it so directed by the Central Government, the case shall be submitted to the Central Government with the Ocers defence and the recommendation of the Director-General as to the termination of the ocers service in the manner provided in Sub-rule (4). When a case is submitted to the Central Government under the proviso to Sub-rule (2) or Sub-rule (3), the Director- General is required to make recommendation whether the ocers service should be terminated and, if so, which of the four alternatives provided should be adopted. Sub-rule (5) deals with consideration of the reports and defence of the ofcer by the Central Government or judgment of the Criminal Court, as the case may be, and the recommendation of the Director-General. The Central Government may pass the order in terms of any of the alternatives indicated in the Sub-rule (5). Page 1144 10. The High Court is plainly in error in holding that it is only the Central Government which is competent to act in terms of Sub-rule (2). Expression as the case may be is otherwise rendered superuous. Both the authorities can act in terms of Sub-rule (2). High Court overlooked the salient factor that any other interpretation would render reference to the Director-General meaningless. A bare reading of Rule 20 makes the position clear that both the Director-General and the Central Government can act in dierent situations and consideration by the Director- General is not ruled out. Sub-rule (3) makes the position clear that the explanation is to be considered by the Director-General and only when it is directed by the Central Government, the matter shall be submitted to the Central Government with the ocers defence and the recommendations of the Director-General. When DirectorGeneral nds the explanation unsatisfactory he recommends for action. There may be cases where the Central Government directs the Director-General to submit the case. There can be a case where the Central Government nds that the explanation is unsatisfactory. In that

488

Union Of India v. Ashok Kumar 2005 trial is inexpedient or impracticable is clearly indefensible. 12. Coming to the conclusion whether there was application of mind, the High Court had perused the concerned le and come to the conclusion that there was independent application of mind in passing the order of removal. Though in the appeal led by the delinquent ocer the order of removal is assailed on the ground that only the Desk Ocers opinion was endorsed without application of mind, we do not nd the situation to be so. Copies of the entire le were produced before us. It is clearly indicative of the fact that though the Desk Ocers opinion was noted, there was independent Page 1145 application of mind and, therefore, the plea of the delinquent ocer that the order suffers from the vice of non-application of mind is clearly untenable. Similarly, we nd the plea of mala- des does not appear to have been pressed before the High Court, and grievance related to other respondents and the personal allegations of mala-des do not appear to have been urged. 13. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is not to be held established except on clear proof thereof, it is obviously dicult to establish the state of a mans mind, for that is what the employee has to establish in this case, though this may sometimes be done. The diculty is

case the Central Government may direct the case to be submitted to it. At the rst stage the consideration is by the Director- General. When he nds the explanation unsatisfactory, he recommends action by the Central Government. But even if he nds explanation to be satisfactory, yet the Central Government can direct the case to be submitted to it. Recommendations in terms of Sub-rule (4) are made by the Director-General and the nal order under Rule 20(5) is passed by the Central Government. The expression as the case may be is used in Sub-rule (2) and Sub-rule (5). It obviously means either of the two. It is to be further noted that the order in terms of Sub-rule (5) is passed by the Central Government. But the enquiry can be either by the Central Government or the DirectorGeneral, as the case may be. There is another way of looking at Sub-rule (2). Where report of the ocers misconduct is made by the DirectorGeneral, the matter is to be placed before the Central Government and in all other cases the consideration is by the Director-General. The words as the case may be means whichever the case may be or as the situation may be. (See Shri Balaganesan Metals v. M.N. Shanmugham Chetty and Ors. ). The expression means that one out of the various alternatives would apply to one out of the various situations and not otherwise. 11. Therefore, the High Courts conclusions that Central Government is the only authority to consider the matter whether holding of

489 not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala de in the sense of pursuing an illegitimate aim. It is not the law that mala de in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (S. Pratap Singh v. State of Punjab ). It cannot be overlooked that burden of establishing mala des is very heavy on the person who alleges it. The allegations of mala des are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility. As noted by this Court in E. P. Royappa v. State of Tamil Nadu and Anr. , Courts would be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an oce which has a high responsibility in the administration. (See Indian Railway Construction Co. Ltd. v. Ajay Kumar ). As observed by this Court in Gulam Mustafa and Ors. v. The State of Maharashtra and Ors. mala de is the last refuge of a losing litigant. 14. That being so, the delinquent ocers appeal is sans merit. 15. The inevitable conclusion is that the appeal led by the Union of India deserves to be allowed. The judgment of the Division Bench taking the view contrary to that of learned Single Judge in its analysis of Rule 20 deserves to be set aside, which we direct. Similarly, the other appeal led by the delinquent ocer lacks merit and is dismissed. In the peculiar circumstances of the case, parties are directed to bear their respective costs.

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Chapter 41

Union Of India v. Ranbir Singh Rathaur 2006

Union Of India & Ors v. Ranbir Singh Rathaur & Ors. ... on 22 March, 2006 Author: A Pasayat Bench: A Pasayat, T Chatterjee CASE NO.: Appeal (civil) 2949-2950 of 2001 PETITIONER: Union of India & Ors. RESPONDENT: Ranbir Singh Rathaur & Ors. etc.etc. DATE 22/03/2006 BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE JUDGMENT: JUDGMENT ARIJIT PASAYAT, J. These two appeals are directed against the common judgment of a Division Bench of the Delhi High Court. By the impugned judgment the High Court disposed of two writ OF JUDGMENT: petitions CW No. 3063 of 1995 led by respondentRanbir Singh Rathaur and CW No. 4082 of 1995 led by Ashok Kumar Rana. Alongwith these two writ petitions seven Letter Patent Appeals were also disposed of. These LPAs. are the subject matter of challenge in Civil Appeal Nos.2951-57 of 2001 which were de-linked from the present two appeals by order dated 14.2.2006. The LPAs. and these writ petitions led before the High Court were linked in the sense that in all these cases concerned writ petitioners were dismissed from service by the present appellants. They were all working at the relevant point of time in 168 Infantry Brigade, deployed in a place called Samba in the border areas. By the impugned judgment the High Court held that the proceedings initiated against the writ petitioners forming subject matter of the present appeals were void in law and the orders passed against these and the other ocers who were appellants in the LPAs were vitiated being with-

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out any material and being a camFactual background as highouage. The relevant portion of the lighted by the appellants is essenHigh Courts order reads as follows : tially as follows: Accordingly we declare that the proceedings initiated against the petitioners in the two writ petitions are void in law and the orders passed against the other ocers, the appellants in L.P.As are vitiated being without any material and being camouage. Having dropped the idea not to conclude Court Martial proceedings knowing fully well that the ocers were likely to be acquitted, without producing relevant record before the concerned authority orders of termination were passed outing all norms. The appellants in the LPAs and the petitioners in the two writ petitions are entitled to all the consequential benets. We also hereby declare that the orders passed against the appellants in the LPAs are void in law and the conviction and sentence by the GOMs against the writ petitioners are void in law. Consequently, the judgment of the learned Single Judge which are set aside and the writ petitions in those are allowed and the Latent Patent Appeals stand allowed and the two writ petitions also stand allowed. All the writ petitions stand allowed to the above extent indicated and other reliefs prayed for cannot be considered by this Court and it is for the law makers to attend to the same. There shall be no order as to costs. The respondents shall grant consequential reliefs to all the ocers including all monetary benets within a period of four months from today. In February 1971 Gunner Sarwan Dass was cultivated by Pakistan Intelligence. In 1972 Capt. Ghalwat & Gnr. Sarwan Dass crossed the international border. In 1973 Cap. Ghalwat & Gnr. Sarwan Dass were posted in Babina (MP). In 1974 Gnr. Aya Singh was cultivated by Gnr. Sarwan Dass for Pak intelligence. Capt. Nagial was then cultivated by Aya Singh for Pak intelligence. In 1975 for the rst time the espionage racket came to be noticed. Aya Singh and Sarwan Dass were arrested. In 1976-1977 pursuant to the investigation 3 more Jawans were arrested. They corroborated the involvement of Sarwan Dass. Sarwan Dass and Aya Singh on further interrogation disclosed the names of Capt. Ghalwat & Capt. Nagial. In 197677 Capt. Ghalwat & Capt. Nagial were tried by General Court Martial and were convicted. Ghalwat was cashiered and given 14 years RI. Nagial was given 7 years RI and was also cashiered. In addition, 12 jawans were tried and they were given RI of various descriptions and were dismissed from services. Aya Singh and Sarwan Dass were also among the 12 jawans tried and held guilty. Later in 1978 it was discovered that Aya Singh was holding back certain relevant information relating to espionage activities under certain alleged threat and pressure. Wife of Aya Singh came to be killed. Reeling under the shock of the circumstances, he made further disclosures wherein

493 he named Capt. Rathaur and Capt. A.K. Rana, the respondents in these appeals and he disclosed that he was receiving threats that if he disclosed anything his wife would be killed. Accordingly, in 1978 Capt. Rathaur and Capt. A.K. Rana were interrogated. As a result, 42 Army personnel were arrested. The 42 Army personnel included 19 ocers, 4 junior commissioned ocers (JCOs) and 19 Other Ranks (ORs.) Out of the 19 ocers, 3 ocers were tried by General Court Martial, two were convicted, namely, Capt. Ranbir Singh Rathaur and Capt. A.K. Rana and one was acquitted. Capt. Ranbir Singh Rathaur and Capt. A.K. Rana were sentenced to RI for 14 years each and were cashiered. Against 13 ocers, disciplinary actions were initiated. However, a decision was taken not to try them and administrative order under Section 18 of Army Act, 1950 (in short the Act) was passed terminating their services. prisonment. Services of 9 others were terminated by administrative order and the rest 4 were let o and no action was taken against them. At this juncture it would be appropriate to take note of previous litigations. On 22.10.1980 Criminal Writ Petition No. 90 of 1980 was led by Ex Captain Rana. On 4.6.1981 Criminal Writ Petition No. 90 of 1981 came to be dismissed by the Division Bench of Delhi High Court. It was observed that a number of points were raised on points of law and jurisdiction. It did not want these matters to be left undecided, therefore, arguments were heard on these points and were dealt with. On 19.2.1982, SLP (Crl.) No.2320 of 1981 led by Capt. A.K. Rana against the order dated 4.6.1981 came to be dismissed.

On 17.10.1995 CWP No. 4082 of 1995 was led by Capt. AK Rana before the Delhi High Court. On 21.12.2000 the impugned judgment Present appeals relate to the 2 was passed. ocers punished by General Court On 24.8.1978 Capt. Ranbir Singh Martial and the de-linked appeals relate to 7 ocers out of 13 ocers Rathaur was arrested and taken into whose services were terminated un- custody on the basis of information der Section 18 of the Act. The re- collected by the Military Intelligence maining 3 ocers were not found that Ranbir Singh Rathaur had been blameworthy and no action was indulging in acts of espionage by taken against them and they contin- passing secret and classied military ued in the Army. Out of 4 JCOs information to agents of a foreign services of (3 JCOs) were terminated country. On 28.3.1979 Smt. Swaran administratively and against 1 ocer Rathaur, wife of Capt. Ranbir Singh no action was taken. Out of 19 oth- Rathaur led a Habeas Corpus Petiers, 6 were tried by General Court tion under Article 32 of the ConstituMartial and were convicted and sen- tion of India, 1950 (in short the Contenced for various descriptions of im- stitution) in this Court being Crim-

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Union Of India v. Ranbir Singh Rathaur 2006

inal Writ Petition No. 294/79, inter interference by this Court. alia, seeking the following reliefs: As regards the allegations of tor(a) That Ranbir Singh Rathaur ture it was recorded that the Addibe forthwith produced before this tional Solicitor General produced beHonble Court. fore the Court a record of the doc(b) That the Petitioner in the tor who had examined the detenu said writ petition, her lawyers and thoroughly and found that the commedical advisors be permitted to in- plaints made by him were without terview the said Capt. Rathaur in substance. conditions controlled by this Honble However, the petitioner was given Court and proper medical care and liberty to make an application before facilities may be furnished to him. the Military authorities for examinaOn 12.4.1979 General Court Mar- tion by the Principal of the Medical tial was convened against Capt. College, Jammu. Such examination Rathaur. On 17.4.1979 two charges by a civil doctor was not to be taken were framed against Capt. R.S. as casting any reection or aspersion Rathaur for oences under Section 69 on the impartiality or incompetence of the Act, read with Section 3(1)(c) of the doctor of the Military Departof the Ocial Secrets Act, 1923 (in ment. With these observations the petition was dismissed. short Secrets Act). The Union of India led a Counter Adavit in Crl. WP No. 294 of 1979, inter alia, pointing out that detenu was being tried by a General Court Martial and that sanction to the detention was given by the Chief of Army Sta and the Government. On 27.4.1979 this Court vide Order dated 27.4.1979 dismissed the Writ Petition No. 294/1979 as infructuous. This Court observed that: It has also not been disputed that the proceedings of the Court Martial have started and the detenu has been allowed to appoint a counsel of his own choice who is at the moment representing the detenu. In these circumstances, therefore, the Habeas Corpus Petition had become infructuous and does not merit any On 2.8.1979 Rathaur was convicted and sentenced to 14 years rigorous imprisonment. In 1981 Rathaur led a Criminal Writ Petition being Crl.W.P. No. 9 of 1981 in the Delhi High Court challenging the Court Martial proceedings. On 23.3.1982 the High Court vide its order dated 23.3.1982 dismissed the petition of Rathaur relying upon its earlier decision in Criminal Writ No. 90 of 1980 dated 4.6.1981. In 1985 SLP (Crl.) 3573/85 against the Order dated 23.3.1982 of the High Court in Crl.W.P. No. 9 of 1981 was led by RS Rathaur. In 1985 Rathaur led a Writ Petition in this Court being Criminal Writ Petition No.1577 of 1985 again challenging the legality of the court martial proceedings, the sentence passed and the conrmation thereof. It was alleged that the court martial proceedings

495 and sentence passed were arbitrary, tions which are illegal and that the procedure folaccordingly dismissed. lowed was in violation of the Act and In May 1989 Rathaur was rethe rules made thereunder. leased from custody. In 1995 Prayer (B) of the Writ Petition Rathaur again challenged the validreads as under : ity of the Court Martial proceedings Issue a writ order or directions which had been conclusively decided in the nature of certiorari calling for by this Court, by ling a fresh Writ the entire proceedings of the General Petition being CWP No. 3063 of Court Martial and quash the convic- 1995. Rathaur, inter alia, prayed for tion and sentence of the Petitioner quashing of the same General Court and the order of COAS conrming Martial proceedings. Prayer (1) of the said conviction and sentence. Writ Petition is extracted below: On 10.2.1986 the Special leave Petition preferred by Capt. Rathaur to this Court being SLP (Crl.) No.3573 of 1985 against the Order dated 23.3.1982 of the High Court in Crl.W.P.No. 9 of 1981 was dismissed. On 28.4.1986 this Court dismissed the Criminal Writ Petition No. 1577 of 1985. This Court observed that the case was not a t case for calling for the records or for re-opening the matter and hearing it. On the prayer of the Counsel for Rathaur, this Court directed that the records be preserved for one more year. On 23.1.1987 the Review Petition led by Rathaur in respect of the order of this Court dated 10.2.1986 in SLP (Crl.) No.3573 of 1986 and the order dated 28.4.1986 in Criminal Writ Petition No.1577 of 1985 (Review Petition Nos. 493 of 1986 and 463 of 1986 respectively) were dismissed. The order reads as under : (1) To issue a Writ of Mandamus and any other appropriate Writ, Order or direction, inter alia commanding the Respondent Nos. 1 and 2 in accordance with Section 165 of the Army Act, 1950 to annul the proceedings of the General Court Martial aecting the petitioner as they are malade, irrational, unjust and illegal and there has been a failure of justice. On 17.10.1996 the present appellants led an adavit taking the preliminary objection relating to the maintainability of the Writ Petition in view of the fact that the earlier Writ Petition of Rathaur had already been dismissed by the High Court on 23.3.1982 and the Special Leave Petition as well as Review Petitions preferred against the same were also dismissed by this Court.

It is also pertinent to note that this Court vide order dated 28.4.1986 We have gone through the Re- had dismissed Criminal Writ petition view No.1577 of 1985 challenging the very Petitions and connected papers. same General Court Martial ProWe nd no merit in the Review Peti- ceedings.

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The appellant also submitted cers led LPAs. that they would le a detailed It was contended by the present counter adavit on merits after the appellants that these LPAs were covissue of maintainability is decided. ered by the order in the case of Sri On 14.8.1998 the Honble High N.D. Sharma. The matter came to Court after hearing the matter at be referred to a Full Bench of the length was pleased to reserve the High Court to ascertain: judgment. Whether the order of terminaOn 22.3.1985 all the writ peti- tion passed by and in the name of tions challenging orders under Sec- the President u/s 18 r/w Art. 310 tion 18 of the Act were dismissed. invoking the doctrine of pleasure of In 1985, one of the writ petition- the President can be challenged on ers Sri N.D. Sharma led LPA being the ground that it is camouage and LPA No. 116 of 1985 against the or- as such violative of principles of natder of dismissal. On 19.8.1986 the ural justice and the fundamental right guaranteed said LPA came to be disposed of by quashing the 5% cut, however, orders under Article 14? of termination of services were mainOn 8.7.1994 the Full Court rentained. dered its judgment in Ex. Maj.N.R. In 1986 Sri N.D. Sharma pre- Ajwani & Ors. v. Union of India 55 ferred SLP(C) No. 13195 of 1986 (1994) SLT 217. It was held that: against the order dated 19.8.1986. (a) The concept of camouage is On 27.2.1987 SLP(C) No. 13195 of a facet of judicial review and the 1986 was dismissed. In 1992 Sri N.D. Court would lift the veil in all cases Sharma led a fresh Writ Petition be- where it appears that the power is ing Civil Writ Petition No. 3107 of used for collateral purposes under the 1992 before Delhi High Court. On cloak or garb of innocuous form of an 7.9.1992 Writ Petition No. 3107 of order and determine the true charac1992 was dismissed on the ground of ter of the order under delay. In 1995 writ petition No. 4585 challenge. of 1995 was dismissed. (b) Therefore, an order under Similar petition has been disSection 18 of the Army Act read with missed by the Division Bench in the Article 310 of the case of Subhash Juneja v. Union of Constitution invoking the docIndia (CW 271/95) as the said petrine of pleasure of President is subtitioner tried to re-open the decision which had attained nality. In 1997, ject to judicial reivew to ascertain Review Petition was led against the whether the same is exercised order of dismissal being RP No. 5897 lawfully and not vitiated for mala of 1997. On 7.11.1997 RP No. 5897 de or based on extraneous grounds was dismissed. and that order can be challenged on In 1987-1994 the balance 7 o- the ground that it is a

497 res judicata and are accordingly disIn 1994 the Union of India pre- missed. This order has been armed ferred Special Leave Petition (Civil) by this Court. Nos.18732-36 against the order of On 6.1.1997 the present appelthe Full Bench of the High Court. lants led the adavit bringing on On 17.11.1994 Special Leave Petition record this orders dated 17.11.1994. (Civil) Nos.18732-36 was granted. It was submitted that it would be Although the judgment of the Full just and proper to decide the prima Bench was not disturbed it was held facie case, if any, in favour of the apthat it is for the person who chal- pellant/petitioners. It is only then lenges the order passed u/s 18 on the burden would shift to the responthe ground of malade to make out dent to show that the order had not a prima facie case. It is only if he been passed in malade exercise of discharges the said burden, that the power. Government is called upon to show On 14.8.1998 the relevant Origthat the said order is not passed in inal records pertaining to the case its malade exercise of powers. were shown to the Court. The orOn 2.5.1995 the High Court vide its order dated 2.5.1995 held that the issue of maintainability would be decided in the rst instance. The High Court in this regard observed: der does not indicate that the records were insucient or more papers were required to be produced. It is pertinent to note that all the LPAs and two abovesaid writ petitions were beWe are of the view that rst ing taken up together for hearing by we should decide the batch whether the High Court. fresh writ petitions are maintainable, On 21.12.2000 the LPAs then the question of going into the Nos.4/87, 43/87, 139/87, 148/87, privilege claimed by the respondents 21/88, 77/93 and 86/1994 were alwill have to be decided. lowed. It was, inter alia, observed by On 8.3.1996 Division Bench of the High Court as follows: Delhi High Court dismissed similar petition. It was contended by the writ petitioner that the judgment of the Full Bench has given fresh cause of action to them to challenge the order of termination of service dated 3.3.1980 even if their challenge has been adjudicated upon till the Supreme Court. Earlier decisions were not based on lack of jurisdiction but it was not found to be a t case of interference. It was held that the petitions are barred by the principles of (1) The case of the appellants and the case of the writ petitioners are interconnected and intertwined and they can be looked as a whole. (2) Instead of producing all the relevant records, the respondent had produced only three aps. (3) Perusal of the Counter Afdavit in all cases gives the impression that the respondent had withheld material facts. (4) Respondents have not placed any material justifying the action. camouage.

498

Union Of India v. Ranbir Singh Rathaur 2006

(5) Respondent think they are conjectures allowed the writ petilaw unto themselves. tions; overlooking the fact that on (6) Respondents have chosen not same grounds the writ petitions had been earlier led, were dismissed and to produce the entire record. even the writ petitions and the SLPs. (7) We may not have interfered led in this Court were dismissed. in view of nality reached on an adOn clearly erroneous premises that judication by this court provided the there was no material to justify the records were produced. action, the High Court came to the (8) On the consideration of all the conclusion as noted above. It is facts and circumstances we are of the submitted that the High Court proview that there is no other conclusion ceeded on the basis as if no matepossible except to say that the orders rial were produced before it and this are merely camouage and have been is contrary to the actual position. passed for extraneous reasons under In fact volumes of documents were the innocuous form of orders of ter- led which the High Court unfortumination. (9) The appellants in the nately did not take note of. This LPA are entitled to all consequential presumably happened because the benets. Orders passed against the judgment was reserved in 1998 and appellants in LPA are void. the impugned judgment was delivOn 3.1.2001 the counsel for the ered in December, 2000. The judgpresent appellant received back the ment is full of erroneous conclusions factually, which shows complete nonles submitted to the High Court. In these appeals, it has been application of mind. An observation has been made by the High Court urged as follows:that though nality in law is de(1) By application of the princisirable justice is of foremost imporples of res judicata, the writ petitions tance. It has not been even indiwere not maintainable. (2) The order cated as to in what manner the eardated 17.11.1994 of this Court has lier proceeding suered from legalbeen overlooked. ity. The legality of the Court Mar(3) Onus of proof wrongly shifted shal proceedings which was assailed to the present appellant. were challenged earlier and were re(4) The earlier adjudications have jected right up to this Court. To substantiate the plea that original docnot been taken into account. (5) Delay in ling the writ peti- uments were shown and the original les were led reference has been tions has not been considered. made to the receipt. Reference has (6) Records were produced before also been made to the order dated the High Court; contrary to what has 14th August, 1998, which reads as been recorded. follows: It was pointed out that the High Synopsis have been placed on Court lost sight of the factual back- record. ground and on mere surmises and

499 Mr. Tikky states that by 17.8.1998, photocopy of the relevant record will be made available to Court. Originals have been shown to us. Judgment reserved. It was pointed out that the only basis for ling the fresh writ applications as is evident from the averments made in the writ petitions is that some press reports had stated about irregularities in holding people guilty of espionage and the orders passed in the cases which formed the subject matter of challenge in the LPAs. The subject matter of the writ petitions which were under consideration in the LPAs were entirely different and had no connection with the legality of the Court Marshal proceedings. In response, learned counsel for the respondent submitted that there was a great amount of manipulation and objectionable activities which subsequently came to light and on that basis the writ petitions were led before the High Court and have been rightly allowed. In spite of opportunity as noted by the High Court, relevant documents were not produced. The stand that documents were led before the High Court is refuted. On a bare reading of the High Courts order and the averments in the writ petitions, one thing is crystal clear that there was no denite allegation against any person who was responsible for the so called manipulation. It is also not clear as to who were the parties in the writ petitions led. In the grounds indicated in the writ petitions it was stated that there is no bar or impediment on the High Court reviewing the petitioners case as also connected cases to enquire into the validity of the acts done against the writ petitioner. Therefore, it was an accepted position that the writ petitioners wanted review of the High Courts order, which is clearly impermissible. No ground for seeking such review apparently was made out. In any event we feel that the High Courts approach is clearly erroneous. The present appellants in the counter adavit led had raised a preliminary objection as regards the maintainability of the writ petitions and had requested the High Court to grant further opportunity if the necessity so arises to le a detailed counter adavit after the preliminary objections were decided. The High Court in fact in one of the orders clearly indicated that the preliminary objections were to be decided rst. But strangely it did not do so. It reserved the judgment and delivered the nal judgment after about three years. There is also dispute as to whether the relevant documents were produced. What baes us is that the High Court records with original documents were shown to it and the Bench wanted the copies to be led. In the impugned judgment the High Court proceeded on the basis as if only a few pages of the les were shown. If that was really the case, there was no necessity for the High Court to direct the present appellants to le copies. If after perusal of the documents the High Court felt that these

500

Union Of India v. Ranbir Singh Rathaur 2006 not so. The conclusions were based on untested materials, and the writpetitioners had not established them by evidence. Since the High Court has not dealt with the matter in the proper perspective we feel it would be proper for the High Court to rehear the matter. The High Court shall rst decide the preliminary objections raised by the present appellants about the non-maintainability of the writ petitions. Normally such a course is not to be adopted. But in view of the peculiar facts involved, it would be the appropriate course to be adopted in the present case. Therefore, we remit the matter to the High Court for fresh hearing. We make it clear that whatever we have observed should not be treated to be the conclusive ndings on the subject matter of controversy. The appeals are allowed without any order as to costs. Since the matter is pending since long, we request the High Court to dispose of the matter as early as practicable, preferably within four months from the date of receipt of the judgment. No costs.

were not sucient the same would have been stated. But that does not appear to have been done. The High Court also had not discussed as to how the matters which stood concluded could be reopened in the manner done. No sucient grounds have been even indicated as to why the High Court felt it necessary to do so. To say that though nality had been achieved justice stood at a higher pedestal is not an answer to the basic question as to whether the High Court was competent to reopen the whole issue which had become concluded. The persons whom the High Court felt were responsible for alleged manipulation or persons behind false implication were not impleaded as parties. Newspaper reports are not to be considered as evidence. The authenticity of the newspaper reports was not established by the writ-petitioners. Even otherwise, this could not have been done in a writ petition, as disputed questions of fact were apparently involved. The matters which the High Court found to have been established were really

Chapter 42

Union of India v. Capt. Satendra Kumar 2006

Union of India v. Capt. Satendra Kumar (Arijit Pasayat and Lokeshwar Singh Panta, JJ.) Union of India and Ors. : Petitioner(s) v. Capt. Satendra Kumar : Respondent(s) Civil Appeal No. 2084 of 2003, decided on July 18, 2006 The Judgment of the Court was delivered by Arijit Pasayat, J. Challenge in this appeal is to the legality of the judgment rendered by a Division Bench of the Allahabad High Court holding that the respondent is entitled to be re-instated and is to be given time upto 9.6.2004 to pass the Part B examination. The background facts in a nutshell are as under: Respondent was commissioned on 9.6.1984 as an Ocer in the Indian Army. In terms of Rule 13-A of the Army Rules, 1954 (in short the Rules) read with para 79 of the Defence Service Regulations (in short the Regulations) all commissioned ocers were required to pass, in terms of the existing rules, the promotional examination (Part B) within 13 years of reckonable service. Thereafter, they were required to pass Part D examination for promotion within 20 years. The respondent making apparently wrong and erroneous representation that he had completed Part B course and had passed, applied for next promotional Part D examination without indicating correct particulars regarding the results of Part B examination in the application form. When the authorities found that he was not eligible, his result in Part D examination was declared to be void. Since the respondent had not completed Part B examination as per the existing rules and Special Army Instructions a show cause notice was issued in terms of Rule 13A of the Rules. Respondent replied to the show cause notice and made a statutory complaint. While the matter was pending, on 8.1.1998 the respondent was awarded severe displeasure (non-recordable) for ling false application form for Part D ex-

502

Union of India v. Capt. Satendra Kumar 2006 the period had been amended from 13 years to 20 years and, therefore, the respondent was entitled to reinstatement. Learned counsel for the appellants submitted that the High Court clearly erred in holding that the amendment was applicable to the respondent. By the time the amendment was introduced the period of 13 years originally stipulated was over so far as the respondent is concerned and in any event the amendment was made specically operative with effect from 24.4.1998 and was clearly inapplicable to the respondent. No one appears for the respondent. We nd that the High Courts approach is clearly untenable. The relevant Rule and the instructions read as follows: Promotion Examination Part B(Lt. to Captain) As per SAI 1/S/85 amended vide SAI/26/S/89: 15(a) Promotion Examination Part B. Ofcers who fail to qualify in Promotion Examination Part B till completion of 13 years reckonable service for ocers commissioned before 31 July 1984 and 11 years reckonable service in the case of ocers commissioned on or after 31st July, 1984 will be issued a show cause notice under AR 13-A for termination of service. The services of these ocers will be terminated as per the provisions contained in Army Rule 13-A. Rule 13A. Termination of Service of an ocer by the Central Government on his failure to qualify at an examination or course (1) when an ocer does not appear at or, having appeared fails to qualify at the retention examination or promotion examination or any other basic course or examination within the time or extended time

amination. This was, however, unconnected with the show cause notice issued earlier under Rule 13-A. On 20.8.1999 the Government of India amended Army Instructions whereby the time limit for completing the examination was extended from 13 years to 20 years. It was however made applicable with eect from 24.4.1998. On 5.7.2000 the appellant communicated its decision not to retain the respondent in service as he had failed to qualify in Part B examination within the prescribed time limit. On receipt of the order in question which permitted the respondent to make a representation, if any, within 15 days, the respondent made a representation on 2.8.2000. On 21.9.2001 order was passed retiring the respondent from service in terms of Section 19 of the Army Act, 1950 (in short the Act) read with Rule 13-A of the Rules. Respondent led a Writ Petition before the Allahabad High Court challenging the order dated 5.7.2000. The primary stand was that by the time the order was passed, period for passing the examination was extended upto 20 years and, therefore, he had time till 9.6.2004 to pass the examination in question. The present appellants pointed out that by the time the amendment was made the period of 13 years prescribed under the Army Instructions was already over and in any event the amendment was operative with eect from 24.4.1998 and was not applicable to the respondent. The High Court, however, was of the view that when the impugned order of voluntary retirement was passed in September, 2001

503 specied in respect of that examination or course, the Chief of the Army Sta (or the Military Secretary) shall call upon the ocer to show cause why he should not be compulsorily retired or removed from the service. (2) In the event of the explanation being considered by the Chief of the Army Sta (or the Military Secretary) to be unsatisfactory, the matter shall be submitted to the Central Government for orders, together with the ocers explanation and the recommendations of the Chief of the Army Sta (or the Military Secretary) as to whether the ocer should be- (a) called upon to retire; or (b) called upon to resign. (3) The Central Government, after considering the explanation if any, of the ocer and the recommendation of the Chief of the Army Sta (or the Military Secretary), may call upon the ocer to retire or resign, and on his refusing to do so, the ocer may be compulsorily retired or removed from the service on pension or gratuity, if any, admissible to him. So far as the amendment to the Army Instructions and Regulations are concerned, the amended Army Instructions issued on 20th August, 1999 were applicable with eect from 24.4.1998. That is clearly indicated in the amended instructions issued on 20th August, 1999. The President had sanctioned the amendment to be operative from 24.4.1998. By the time the amendment came into eect, the 13 years period which was available to the respondent to pass Part B examination was over. The notice regarding non success in the examination within the stipulated time had also been given to the respondent on 11.9.1997. Merely because the nal order was passed on 21.9.2001 that did not change the position so far as the respondent is concerned. The High Court is, therefore, clearly in error in holding that the extended period of 20 years was applicable to the respondent. The High Courts order is indefensible and is set aside. The appeal is allowed. No costs.

504

Union of India v. Capt. Satendra Kumar 2006

Chapter 43

Romesh Kumar Sharma v. Union of India 2006

Romesh Kumar Sharma v. Union are as follows : of India & Ors [2006] Insc 462 (1 AuThe appellant while working gust 2006) as Havildar/Clerk (GD) in Ladakh Arijit Pasayat & S.H. Kapadia Scouts, having 17 years service in With CIVIL APPEAL NO. 3222 the Army, was found involved, along OF 2006 (Arising out of SLP (C) No. with a few other persons, in es5832 of 2006) ARIJIT PASAYAT, J. pionage activities during the period 1984-85. The appellant along Delay condoned. with others was interrogated and a Leave granted in SLP (C) Court of Inquiry under Rule 177 No.5832 of 2006. of the Army Rules, 1954 (in short Appellants in both the appeals the Rules) was constituted to colcall in question legality of the judg- lect evidence and to report. Said ment rendered by a Division Bench of Court of Inquiry conrmed the inthe Jammu and Kashmir High Court volvement of the appellant. Keepdismissing the Letters Patent Appeal ing in view the paramount considerled by the appellants questioning ation of Army discipline and the secorrectness of the order passed by curity of the State, it was considered a learned Single Judge whereby the expedient by the authorities to prowrit petition led by him was dis- ceed against the appellant under Secmissed. The review petition led was tion 20(1) of the Army Act, 1950 (in also dismissed which is the subject short the Act) read with Rule 17 of matter of challenge in Civil Appeal the Rules. Accordingly, the appelNo. 7308 of 2003. The other appeal lant was dismissed from service disrelates to the order passed in the Let- pensing with enquiry. ters Patent Appeal. Appellant challenged the order Background facts in a nutshell of dismissal on the ground that the

506

Romesh Kumar Sharma v. Union of India 2006 also dismissed.

same was illegal, unconstitutional, improper, malade and violative of Rule 17 of the Rules and Articles 14 and 21 of the Constitution of India, 1950 (in short the Constitution) and that no opportunity of being heard had been aorded to him to explain his conduct. In the counter afdavit led by the respondent-Union of India and its functionaries, it was pointed out that the approval of the Chief of Army Sta had been obtained and the procedures required have been duly complied with.

In support of the appeal, Mr. Bhim Singh, learned counsel submitted that the true scope and ambit of Rule 17 of the Rules has not been kept in view. Power of dismissal or removal from service is conferred on the Chief of the Army Sta. An enquiry was conducted by a Court of Inquiry and the role attributed to the appellant is very minor and does not warrant an order of dismissal. Parameters of the power of dismissal or the removal are contained in Rule 17 The basic stand of appellant be- of the Rules. fore the High Court was that an enThe proviso is of exceptional naquiry had been conducted to nd ture. No reason was recorded as to out whether the appellant and oth- why, it was thought to be not expediers were involved in the alleged espi- ent or reasonably practicable to comonage, the same was given up mid- ply with the provisions of the main way and ultimately the order of ter- part of Rule 17 of the Rules. That mination was passed. It was submit- being so the order of dismissal canted that the procedure required was not be maintained. not followed and in any event action Per contra learned counsel for the was taken without following the prinrespondent-Union of India and its ciples of natural justice. The High functionaries submitted that modalCourt rejected the stand holding that ities to be followed when Chief of the enquiry which was originally conthe Army Sta thinks it inexpediducted was not qua the appellant but ent to follow procedure as laid down it related to the incident. Further in the main part of Rule 17 of the neither any notice was issued nor any Rules have been followed. He gave charge sheet was submitted. In any a certicate to the eect that it is event it was held that the authorinot expedient or reasonably practicaties were empowered to take action ble to comply with the provisions of in terms of Section 20 of the Act read the Rules and certicate as required with Rule 17 of the Rules in approhas been given. It is submitted that priate cases. The Letters Patent Apon consideration of the materials on peal as noted supra did not bring any record done in an objective manner, relief to the appellant. the Chief of the Army Sta passed A review application was led the order. It has not been even alagainst the order of learned Single leged or shown that there was any Judge as armed by the Division mala de exercise of powers. That Bench, which as noted above, was being so the High Court was justied

507 in its conclusion that the grievances nent grade as a non-commissioned ofare without substance. cer, or if he has no permanent grade In order to appreciate rival sub- above the ranks, to the ranks. 7. missions, it is necessary to take note The exercise of any power under of Section 20 of the Act and Rule 17 this section shall be subject to the of the Rules. said provisions contained in this Act The applicability of the proviso to and the rules and regulations made Rule 17 is the core issue to be con- thereunder. sidered. 20. Dismissal, removal or reduction by the Chief of the Army Sta and by other ocers. 1. The Chief of the Army Sta] may dismiss or remove from the service any person subject to this Act other than an ocer. 2. The Chief of the Army Stas may reduce to a lower grade or rank or the ranks, any warrant ocer or any non-commissioned ocer. 3. An ocer having power not less than a brigade or equivalent commander or any prescribed ocer may dismiss or remove from the service any person serving under his command other than an ocer or a junior commissioned ocer. 4. Any such ocer as is mentioned in sub-section (3) may reduce to a lower grade or rank or the ranks, any warrant ocer or any non- commissioned ocer under his command. 5. 17. Dismissal or removal by Chief of the Army Sta and by other ocers. Save in the case where a person is dismissed or removed from service on the ground of conduct which has led to his conviction by a criminal court or a court martial, no person shall be dismissed or removed under subsection (1) or sub-section (3) of section 20; unless he has been informed of the particulars of the cause of action against him and allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service: Provided that if in the opinion of the ocer competent to order the dismissal or removal, it is not expedient or reasonably practicable to comply with the provisions of this rule, he may after certifying to that effect, order the dismissal or removal without complying with the procedure set out in this rule. All cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported to the Central Government.

A warrant ocer reduced to the ranks under this section shall not, The normal function of a proviso however, be required to serve in the is to except something out of the enranks as a sepoy. 6. actment or to qualify something enThe commanding ocer of an acted therein which but for the proacting non-commissioned ocer may viso would be within the purview of order him to revert to his perma-

508

Romesh Kumar Sharma v. Union of India 2006 and Ors. (AIR 1991 SC 1538) and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P)Ltd. and Ors. (1994 (5) SCC 672). This word (proviso) hath divers operations. Sometime it worketh a qualication or limitation; sometime a condition; and sometime a covenant (Coke upon Littleton 18th Edition, 146) If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails....But if the later clause does not destroy but only qualies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole (per Lord Wrenbury in Forbes v. Git [1922] 1 A.C. 256). A statutory proviso is something engrafted on a preceding enactment (R. v. Taunton, St James, 9 B. & C. 836). The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances (per Lord Esher in Re Barker, 25 Q.B.D. 285). A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso (See Jennings v. Kelly [1940] A.C. 206). Under the proviso to Rule 17 the Chief of the Army Sta and other ocers

the enactment. As was stated in Mullins v. Treasurer of Survey [1880 (5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta (AIR 1965 SC 1728); when one nds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its eect is conned to that case. It is a qualication of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso. Said Lord Watson in West Derby Union v. Metropolitan Life Assurance Co. (1897 AC 647)(HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors. (AIR 1991 SC 1406), Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal

509 are competent to order dismissal or removal without complying with the procedure set out in the main part of the Rule after certifying that it is not expedient or reasonably practicable to comply with the provisions so set out. There is a further requirement that such cases of dismissal or removal shall be reported to the Central Government. Original records were produced before us. A perusal thereof shows that the Chief of the Army Sta had followed the requisite procedure and the certicate as contemplated in the proviso to Rule 17 of the Rules has been given. The note sheets, the records which were also perused by the High Court clearly show that various aspects were taken note of and it was specically recorded that it will be inexpedient to follow the procedure provided in the main part of Rule 17 of the Rules. There is, therefore, no substance in the plea taken by learned counsel for the appellant. Additionally, it is alleged that the main plank of the argument of the appellant before the High Court was that the enquiry which was initiated should not have been abandoned midway and should have been continued. As rightly noted by the High Court, the enquiry was not qua the appellant but it related to the incident. That being so there was nothing wrong in the order of dismissal. It cannot be faulted. In any event enquiry was not abandoned midway as claimed. The basic facts were revealed during enquiry. In any event, as has been held by this Court in Union of India and Others v. Harjeet Singh Sandhu [2001(5) SCC 593] even after a Court Martial is held departmental action is not prohibited. In para 41 it was noted as follows: Having thus explained the law and claried the same by providing resolutions to the several illustrative problems posed by the learned ASG for the consideration of this Court (which are illustrative and not exhaustive), we are of the opinion that the expiry of period of limitation under Section 122 of the Act does not ipso facto take away the exercise of power under Section 19 read with Rule 14. The power is available to be exercised though in the facts and circumstances of an individual case, it may be inexpedient to exercise such power or the exercise of such power may stand vitiated if it is shown to have been exercised in a manner which may be called colourable exercise of power or an abuse of power, what at times is also termed in administrative law as fraud on power. A misconduct committed a number of years before, which was not promptly and within the prescribed period of limitation subjected to trial by court martial, and also by reference to which the power under Section 19 was not promptly exercised may cease to be relevant by long lapse of time. A subsequent misconduct though less serious may aggravate the gravity of an earlier misconduct and provide need for exercise of power under Section 19. That would all depend on the facts and circumstances of an individual case. No hard and fast rule can be laid down in that

510

Romesh Kumar Sharma v. Union of India 2006 ble, the situation would be covered by the expression-the trial by court martial having become impracticable. It was also pleaded that approval of Central Government was necessary in case action was taken under the proviso to Rule17. We nd no such necessity prescribed. All that is required that where proviso to rule 17 is resorted to report has to be made to the Central Government. Record reveals that same has been done. Above being the position we nd no merits in these appeals, which are accordingly dismissed. No cost.

behalf. A broad proposition that power under Section 19 read with Rule 14 cannot be exercised solely on the ground of court martial proceedings having not commenced within the period of limitation prescribed by Section 122 of the Act, cannot be accepted. In the scheme of the Act and the purpose sought to be achieved by Section 19 read Rule 14, there is no reason to place a narrow construction on the term impracticable and therefore on availability or happening of such events as render trial by court martial impermissible or legally impossible or not practica-

Chapter 44

Pradeep Singh v. Union Of India 2007

Pradeep Singh v. Union Of India Background facts in a nutshell & Ors on 19 April, 2007 Author: . are as follows: A Pasayat Bench: . A Pasayat, L S Absence for a period of 2= Panta months was treated as misconduct CASE NO.: and Summary Court Martial was convened in terms of Section 116 Appeal (civil) 5799 of 2000 of the Army Act, 1950 (hereinafter PETITIONER: referred to as the Act). He was Pradeep Singh charged under Section 39A of the Act by order dated 7.8.1989 for having RESPONDENT: remained absent from duty without Union of India & Ors leave. He was tried and punished by DATE OF JUDGMENT: a Summary Court Martial vide order 19/04/2007 dated 16.8.1989. The order of disBENCH: missal passed by the Court Martial Dr. ARIJIT PASAYAT & was challenged in the writ petition primarily on the following grounds: LOKESHWAR SINGH PANTA JUDGMENT: JUDGMENT Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment rendered by a Division Bench of the Jammu and Kashmir High Court dismissing the Letters Patent Appeal led by the appellant. (i) that ociating Commanding Ocer was not competent to convene the Summary Court Martial and therefore, the proceedings and the sentence awarded by the Summary Court Martial is illegal being without jurisdiction; (ii) that the petitioner was neither provided any legal assistance nor allowed to crossexamine the witnesses, and therefore,

512

Pradeep Singh v. Union Of India 2007

the right of hearing has been denied during the court martial was found to to him; be without substance. It was noted (iii) that the petitioner having that in case he was not assisting been punished by removal of the rank him, he could have made a grievance could not be tried and punished on before the Summary Court Martial. That has not been done. There was the same ground. no substance in the plea. The appelThe respondents took the stand lant was informed that on completion that all the submissions are withof the commandant course he did out foundation. The High Court nonot immediately join the unit and inticed that the appellant was posted stead joined after 2= months. He assomewhere in Leh and was deputed sumed leave may have been granted for Commando course in December, without any foundation. As he was 1988 which he joined in January, holding acting rank of Naik, he for1989. He completed the course on feited the right to hold the same be7.2.1989, but instead of reporting at cause of his absence from duty withthe Transit Camp after completion of out leave as per army Headquarter the course, he went home on the asletter No.94930/AG/PSC (C) dated sumption that he had already applied 21.11.1988. Appellant was not holdfor annual leave which must have ing the substantive rank of Naik, been sanctioned by his Commandthe same was withdrawn, because ing Ocer. He nally reported at of absence without leave. It was 259-Transit Camp on 21.4.1989 and in essence withdrawal of a concesreached his unit on 19.5.1989. His sion given. The plea relating to dual grievance was that immediately after jeopardy was, therefore, without any he reached the unit, his rank of Naik substance. Accordingly, writ petiwas withdrawn. Later he was dition was dismissed. Before the Divirected to appear before the Summary sion Bench the stand taken before the Court Martial on 11.8.1989, which learned Single Judge was reiterated. concluded the hearing and awarded The Division Bench found that in the punishment of dismissal. The view of the factual scenario as noted High Court found that the stand that by the learned Single Judge, the writ Ociating Commanding Ocer was petition had been rightly dismissed. not competent to convene Summary It, however, observed that in case Court Martial was without substance some persons similarly situated were in view of the denition of Comtreated with leniency, it was open to mandant Ocer as given in Section the appellant to make a representa3(v) of the Act. So far as the denial tion which shall be duly considered of legal assistance is concerned, it by the respondents. With the aforewas noted that the appellant admitsaid observation the Letters Patent ted that Major D.P. Naikavde was Appeal was dismissed. named as his friend to advise him The learned counsel for the apduring the course of trial. His plea pellant highlighted the same aspects that he did not see the said ocer

513 which were urged before the learned Single Judge and the Division Bench. According to him, the withdrawal of the rank was a punishment and the High Court was, therefore, not justied in its view. Learned counsel for the respondent on the other hand supported the orders. With reference to Section 80 of the Act, learned counsel for the appellant submitted that removal of stripes amounted to punishment and, therefore, further action was not permissible. In this context, the rules relating to acting ranks need to be noted. The same is contained in Army Instructions Nos. 84 and 88. Rule 84 relates to promotion for Junior Commissioned Ofcers and other Ranks. According to the instructions, there are two kinds of promotion, i.e. one acting and other substantive. So far as the acting rank is concerned, they are dealt with in Part I. The same so far relevant reads as under: PART I .- ACTING RANKS 2. The following are the general provisions governing the above promotions:(a) Acting promotion will be made to ll vacancies in authorized establishment, whether temporary or permanent. Acting rank will remain unpaid until an unbroken period of 28 days has been served in that rank when acting rank will be converted into paid acting rank; pay will be admissible with retrospective eect from the date of the grant of such acting rank. motion to that rank will, therefore, be made. A senior NCO may, however, be authorized to perform the duties of a Nb Ris/Nb Sub where necessary. (c) Every Commanding Ocer of a Unit or Ocer-in-charge Records, where acting promotions are centrally controlled on Corps roster basis, is empowered to make acting promotions, provided that the individuals concerned are in possession of all the qualications prescribed for the higher rank. The authority competent to sanction acting promotion is also empowered to order reversion from such acting rank. Acting and paid acting promotions or reversions will be published in Part II orders which will be the authority for issue of pay and allowances of the appropriate rank. (d) Acting rank will be granted from the day the vacancy occurs provided that the individual has assumed the duties of the higher rank from that day and reversion will take place with eect from the day the individual ceases to perform the duties of the appointment for which acting rank is granted or the vacancy ceases to exist except as provided otherwise.

(e) On casual, annual or accumulated annual leave (i) On casual leave An individual will retain paid acting rank or paid lance appointment during the period of casual leave and no acting promotion will be permissible in his place. Acting rank will, however, be relinquished from the date (b) The rank of Nb Ris/Nb Sub of overstayal of casual leave except is a substantive rank. No acting pro- when the period of casual leave and its overstayal is regularized against

514

Pradeep Singh v. Union Of India 2007 tire or cause the place where they place where they sit to be cleared of all other persons not entitled to be present. (4) Except as hereinbefore mentioned all proceedings, including the view of any place, shall be in open court and in the presence of the accused subject to sub-rule (5). (5) The court shall have the power to exclude from the court any witness who has yet to give evidence or any other person, other than the accused, who interferes with its proceedings. A bare reading of the provisions along with the Army Instructions make it clear that Section 80 has no application to the facts of the present case. So far as legality of the Court Martial is concerned, the learned Single Judge has found that the appellant was not holding substantive rank of Naik. The rank which was temporarily given was liable to be withdrawn in case of absence from duty and somebody else had to hold that post. This situation arises when a person who was acting as Naik is not available. The next ground of challenge relates to legality of proceedings before the Court Martial. Though Court Martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court martial has been properly convened and there is no challenge to its composition and the proceedings

annual leave entitlement for the year in which casual leave is taken and as Special Leave vide Rule 6 (d) (ii) of Leave Rules for the Service, Vol. IArmy Cases of overstayal of casual leave owing to sickness will be dealt with as in clause g (ii) below. (ii) On annual or accumulated annual leave An individual will retain paid acting rank or paid lance appointment during the period of annual or accumulated annual leave and no acting promotion will be permissible in his place. Acting rank will, however, be relinquished from the date of expiry of such leave unless the overstayal is due to natural calamities and the period of overstayal is regularized as Special Leave vide Rule 6(d) (ii) of Leave Rules for the Services, Vol. I.- Army. xxx xxx xx Part II deals with Substantive Ranks. The withdrawal of ranks of Naik was on account of his unauthorized absence and was not, therefore, punishment in that sense. Section 80 on which strong reliance has been placed reads as under: 80. Sitting in closed court (1) A court martial shall, where it is so directed by these rules, and may in any other case on any deliberation amongst the members, sit in closed court. (2) No person shall be present in closed court except the members of the court, the judge advocate (if any) and any ocers under instruction. (3) For the purpose of giving effect to the foregoing provisions of the rule, the court martial may either re-

515 are in accordance with the procedure prescribed the High Court or for that matter any court must stay its hands. Proceedings of a court martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure, 1973 where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court martial remains to be significant degree, a specialized part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court martial for an act which is an oence under the Act. Court Martial discharges judicial function, and to a great extent, is a court where provisions of the Evidence Act are applicable. A court martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sucient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is non-jurisdictional and any violation thereof does not invalidate the court martial unless it is shown that accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sucient, court martial has jurisdiction over the subject matter and has followed the prescribed procedure and it is within its powers to award punishment. Above position was highlighted in Union of India and Ors. v. IC 14827, Major A. Hussain (AIR 1998 SC 577). The inevitable result is that the appeal is without merit, deserves dismissal which we direct. However, liberty as given to the appellant by the Division Bench, having not been assailed by the respondents, remains unaltered.

516

Pradeep Singh v. Union Of India 2007

Chapter 45

Union Of India v. S.P.S. Rajkumar 2007

Union Of India v. S.P.S. Rajkumar And Ors on 24 April, 2007 Author: . A Pasayat Bench: . A Pasayat, L S Panta CASE NO.: Appeal (civil) 127 of 2003 PETITIONER: Union of India RESPONDENT: S.P.S. Rajkumar and Ors DATE 24/04/2007 BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA JUDGMENT: JUDGMENT (With Civil Appeal 128/2003 and 606/2003) Dr. ARIJIT PASAYAT, J. These three appeals relate to the order passed by a Division Bench of the Delhi High Court allowing the writ petition led by S.P.S. RajkuNos. OF JUDGMENT: mar, the appellant in C.A.No.128 of 2003. The other two appeals have been led by the Union of India, i.e. Civil Appeal No.127 of 2003 against the main judgment and Civil Appeal No. 606 of 2003 against the modication order. Background facts in a nutshell are as follows: Respondent-Rajkumar joined Air Force as a Commissioned Ocer in the Logistics Branch. He rose to the rank of Group Captain in 1998. According to the appellant- Union of India, respondent-Rajkumar committed large scale impropriety in the matter of purchases while he was functioning in the rank of Group Captain. On 12.1.2000, the charge sheet was accordingly issued listing out 9 charges relating to nancial impropriety committed by him. The conveying order for the Assembly of the General Court Martial (in short the GCM) was issued and Judge Advocate was appointed. On 24.1.2000, the GCM proceedings as-

518

Union Of India v. S.P.S. Rajkumar 2007 conrmed the ndings and sentence. He also dealt with the aspect of the seniority of the Judge Advocate. The Chief of Air Sta cited two reasons on the aspect of Judge Advocate, (a) question of seniority of Judge Advocate was not raised before the GCM; and (b) in fact Judge Advocate of sucient seniority was not available and by doctrine of necessity the concerned Judge Advocate was the only available ocer. The respondent-Rajkumar led post conrmation petition under Section 161 (2) of the Air Force Act, 1950 (in short the Air Force Act) on 30.1.2000 and the same was rejected by the Central Government on 24.9.2001. By judgment dated 5.8.2002, the Division Bench of the High Court quashed the decision of the GCM proceedings of dismissal of service on the ground that the Judge Advocate was junior in rank and, therefore, the GCM proceedings were vitiated. However, liberty was granted to proceed afresh with GCM. The modication application led by Union of India was also dismissed by the High Court.

sembled on a charge sheet containing nine charges, all of which pertained to improper purchase procedure and nancial impropriety. On 13.3.2000, GCM proceedings concluded with the nding that the respondent was guilty of four charges. Accordingly, it sentenced the respondent to forfeiture of two years seniority and severe reprimand. By order dated 13.4.2000, the Convening Authority of GCM i.e. AOC-Incharge, Maintenance Command Head Quarters, Nagpur, on review, ordered for re-assembly of the GCM for revision of the sentence. On 24.4.2000, this Court in Union of India and Anr. v. Charanjit S. Gill and Ors. (JT 2000 (5) SCC 135) interpreted certain provisions of the Army Act, 1950 (in short the Act) and the Army Rules, 1954 (in short the Army Rules) holding that the Judge Advocate should be equal or superior to the rank of the accused ocer just like the Rules provided for the members of GCM. However, this Court gave prospective eect to the judgment declaring that the same shall not be applied to proceedings which have attained nality and also will not be applied to pending cases in courts where such a plea has not been raised. On 13.5.2000, pursuant to the order of 14.3.2000, the GCM re-assembled and passed a fresh sentence of dismissal and revoked the earlier sentence.

In support of the appeal, learned counsel for the Union of India submitted that the vires of certain provisions though raised were not pressed into service before the High Court. The only ground pressed into service was that the Judge Advocate was junior in rank. Therefore, the proceedThe respondent-Rajkumar sub- ings were illegal. mitted two pre-conrmation petiWith reference to Rule 40 of the tions on 25th May, 2000 and 30th Air Force Rules, 1969 (in short the June, 2000. Air Force Rules), it is submitted The Chief of Air Sta on 7.9.2000 that member of GCM should not be

519 junior, but it permits the juniors to It is to be noted that there was be taken as members in certain cir- no challenge to the nding that there cumstances. The Judge Advocate is was no senior army ocer available. not a member of GCM. Rule 46 which relates to the eligibilIt is not a case where at the ity of the member does not speak of rst instance respondent-Rajkumar seniority. It speaks of the same rank had raised any objection about the or superior rank. There was no oballeged lack of seniority of the Judge jection at any point of time about the Advocate. It is submitted that the lack of seniority. In fact the High provisions in the Army Act and un- Court has fallen into error in holdder the Army Rules are entirely dif- ing that the relevant date is the date ferent from Air Force Act and Air of ling of the writ petition. Force Rules. It is pointed out that There is also no plea raised in any Rule similar to Rules 103/104 of these appeals as regards the ndthe Army Rules did not exist in the ing that nobody who was senior was Air Force Rules. available. Therefore, the High Court The GCM proceedings were over. was not justied in interfering with Only the sentence part remained to the conclusions of the GCM holding be nalized. There was no objection the same to be not validly constiraised during the GCM proceedings tuted. The order is set aside. The and even no amendment was sought appeals of the Union of India stand for to pending proceedings. Upto the allowed to that extent. Raj Kumars date of judgment there was no plea appeal is sans merit. relating to the lack of seniority of the Judge Advocate. The order of the GCM clearly indicated that there was no ocer available who was senior. It is submitted that the High Court had erred in holding that the relevant date was the date of ling of the writ petition. It should be the date of the judgment of the GCM. At this juncture, it is to be noted that the question of appropriateness of the sentence was raised before the High Court. The High Court did not examine that aspect in view of the conclusions that the composition of the GCM was not legal. The High Court shall only consider that aspect. Though certain pleas of mala de appear to have been raised in the writ petition, the High Court has specifically noted that, that plea was not pressed into service. Therefore, the High Court shall consider the writ petition only on the question of sentence and no other issue.

In reply, learned counsel for the respondent-Rajkumar submitted that the Gills judgment (supra) has full application under the Air Force Rules and the Army Rules. Similar provisions relating to composition The appeals are accordingly disof GCM are the same. The convenposed of. There will be no order as ing order does not speak of any nonto costs. availability.

520

Union Of India v. S.P.S. Rajkumar 2007

Chapter 46

Sheel Kr. Roy v. Secretary M/O Defence 2007

Sheel Kr. Roy v. Secretary M/O He secured rst position in the Defence & Ors [2007] Insc 642 (18 South Command and third position May 2007) on an all India basis. In ordinary course, he would have become S.B. Sinha & Markandey Katju a Commisioned Ocer upon obtainS.B. Sinha, J : ing training from Army Cadet Col1. Interpretation and applica- lege, Dehra Doon but prior thereto tion of some provisions of the Army he was posted to Ladakh. While Act 1950 (hereinafter referred to posted at Leh, owing to high altias The Act) and Army Rules, tude of the place, he developed psy1954 (hereinafter referred to as The chiatric problems. For want of necRules) arises for consideration in essary care, he became a psychiatry this appeal, which arises out of patient. He had to undergo treatthe judgment and order of a Divi- ments in the Army Hospitals situated sion Bench of the Delhi High Court at Chandigarh, Allahabad, Jabalpur dated 4.3.2005 passed in Writ Peti- and Ambala. tion (Civil) No.3442 of 1998, dismiss3. In the Medical Board proceeding the writ petition led by the apings held on 22.4.1987, the appellant pellant herein. was put in medical category CEE 2. Appellant joined the Army wherein it was opined : Service on or about 18.8.1981. He This 27 yrs. Old serving soldier is a holder of B.Sc. (Biology) degree. with more than 5 yrs. of service is He has received trade training in the a case of Neurosis-onset of illness in Army as a Technician Electronic Sysearly Jan. 1987 while serving it high tem. He passed the 54th Entrance altitude area. Examination from Army Cadets ColIllness was characterised with lege from Dehra Doon in the year acute onset of attacks of chest pain, 1986.

522

Sheel Kr. Roy v. Secretary M/O Defence 2007

giddiness, vomiting and tingling sen- leave as a part of annual leave, but sation all over the body, physical. he allegedly over stayed for about 96 days. Some punishment was imposed Present Condition. on him by an order dated 5.12.89. Examination and relevant laboraHe prior to joining his present posttory parameters were within normal ing, was posted in another unit on limits. He was evaluated psychiatri20.1.1990. cally at CH (WC) in Chandigarh in He was allegedly found t to join Feb. 87. his duties. He was again summarPsychologically he was tense anxily tried and awarded three days pay ious and worried. He showed prene despite the fact that his medical occupation on somatic symptoms, re- categorization had not been done craved for sympathy. timely. He was admitted to Medical Exaggerated his symptoms and Hospital, Ambala from 13.5.1990 to expressed his inability to withstand 7.6.1990 for medical recategorisation. extreme cold climate and other enHe was granted casual leave for vironmental constraints, of high altithe period of 7.6.1990 to 18.6.1990 tude area. He had sleep and appetite to visit his family, but he allegedly disturbances with normal insight and overstayed his leave again for 20 judgment. days, even though there is nothing He has been managed with phy- to show as to whether he had been chotherapy and anxiolytics for which declared t for joining his duties or response is favourable it present a not. There is also nothing on record symptomatic. He is cheerful and to show that any action was taken have no overt signs of anxiety. On against him in respect thereof but admotivation for further service is FM mittedly he was admitted to MediSF-10 dated 10 Apr. 87 is unsatis- cal Hospital, Ambala for medical refactory. categorization. He was transferred to He needs to be observed in low Command Hospital (Western Command) on 16.7.1990. medical category. 5. For his purported absence Recommended to be placed in medical category CEE temporary for the period from 16.7.1990 to 22.7.1991, a chargesheet was submitpsychological for 6/12 yrs. To be reviewed thereafter with ted which reads as under : fresh AFMSF-10 by his O.C.Unit. [Emphasis supplied] 4. The medical re-categorization which was to take place on or about 21.10.1987 was delayed. He continued to be on medical leave and was categorized to be in CEE category for six months. Thereafter he went on The accused No.14243462A Sigmn(TES) Sheel Kumar Roy of 2 Corps Air Sp. Sig Unit is charged with :- Army Act Section 39(a) ABSENTING HIMSELF WITHOUT LEAVE In that he, at Ambala Cantt, absented himself without leave from M11, Ambala Cantt. At 1000h.

523 on 16th July 1990 and remained so 3. Absence period of above patill surrendered voluntarily at Depot tient to be regularized administraregt. (Corps of Signals) Jabalpur at tively as per existing orders by MH 0700h on 22 Jul. 91. Ambala Cantt/2 Corps Air Sup Sig Unit. Station : Ambala Cantt Dated : 3 Sep. 91. Sd/- (Amarjit Singh) Col.Commanding Ocer 2 Corps Air Sp. Sig Unit 6. We would deal with this aspect of the matter a little later, but we may notice that it is borne out from the record that he had again been sent to Command Hospital (Western Command) for medical re-categorization. Having been found t, he was allegedly discharged from the Hospital on 12.8.1991upon upgrading to Medical Category AYE. He was summarily tried for another misconduct and was awarded 7 days Rigorous Imprisonment and 7 days Pay ne. 7. It is further interesting to note that a Court of Enquiry was held in terms of Army Rule 22 of the Rules on 3.9.1991 in regard to the alleged overstay from 16.07.1990. In its opinion the Court of Enquiry observed : 1. No.14243462 S/Man S.K. Roy of 2 Corps Air Sup. Signal Unit had absconded on 16 July 90 at 1000 h from M.H.Ambala Cantt while still on their strength. 2. No.14243462 S/Man S.K. Roy has been received by this hospital on the authority of 2 Corps Air Sup. Sig. Unit vide their letter No.213/PC/SKR/03/X of 29 Jul 91 and admitted to this hosp. On 30 Jul 91 (FN). 4. o.13964654 L/NK/NA M.S. Pillai ex-MH Ambala Cantt now posted to 151 Base Hosp. Has given false statement after having duly cautioned that he had brought 3 patients where as No.14243462 S/Man S.K. Roy was absconding from MH Ambala Cantt. Disciplinary action against the individual is recommended. [Emphasis supplied] 8. We may also put on record that, as far back as 17.5.1990, his behaviour having been found unsatisfactory, an opinion was formed that his mental outlook and personal habits and his behaviour in the unit being unsatisfactory as it was recommended not to retain him in service. 9. It is really a matter of grave concern that, despite the recommendations of the Court of Enquiry, he while undergoing punishment of 7 days Rigorous Imprisonment by the order dated 30.8.1991, the charge-sheet in question being dated 3.9.1991 was issued to the appellant by the Commanding Ocer of his unit. He was tried in a Summary Court Martial proceeding held on 7.9.1991 only for an hour i.e. from 13.45 to 14.45 hrs. It is not again in dispute that the Commanding Ocer himself was the Prosecutor and also the Judge. He was held guilty and sentenced to undergo six months rigorous impris-

524

Sheel Kr. Roy v. Secretary M/O Defence 2007 vice in a medical proceedings held on 17.5.1990, quick successive convictions one for making a complaint to the Adjutant General directly and another for violation of Section 39 of the Act must be held to be wholly illegal. Charge against the appellant in regard to his alleged unauthorized absence was based on incorrect facts as from the movement order led by the respondents themselves, it would appear that he had been admitted in Medical Hospital, Ambala on 11.7.1990. (iv) Recommendations of the Court of Enquiry although noticed by the Commanding Ocer himself in the Summary Court Martial Proceedings having not been taken into consideration, the said authority must be held to have misdirected itself in law. Had the recommendations been taken into consideration, the Commanding Ocer would have regularized his leave and in any event he having been found to be admitted in a Medical Hospital or in a Hospital as a patient, the ndings of unauthorized absence is perverse. 12. Mr. Vikas Singh, learned Additional Solicitor General, appearing on behalf of the respondents, on the other hand, would submit that: (i) the appellant having been found t for joining his services, no illegality has been committed by the Commanding Ocer in awarding a punishment of six months Rigorous Imprisonment as also dismissal from service.

onment and was also the punishment of dismissal from service. On Appeal, the Chief of Sta, however, by order dated 5.10.1991 remitted three months Rigorous Imprisonment maintaining the sentence of dismissal. He made representations before the higher authorities. 10. The Writ Petition led by the appellant, as noticed hereinbefore, has been dismissed by the High Court. We may, however, before proceeding with matter notice that the records of the Court of Enquiry were not placed before the High Court. 11. Ms. Lily Thomas, learned counsel appearing on behalf of the appellant inter alia would submit : (i) Appellant having been suffering from mental illness and having been undergoing rigorous imprisonment for seven days on a dierent charge, service of the charge on him during that period as also holding of a Court Martial wherein the Commanding Ocer played both the role of a prosecutor as also a Judge amount to denial of his human right as also Article 21 of the Constitution of India. No legal assistance was also provided to him and furthermore no time having been granted for preparation of his case as he was in custody, the proceeding should be treated to be an eye-wash. (ii) Imposition of two punishments, viz., rigorous imprisonment as also dismissal from service is violative of Section 39 read with Section 71 of the Act.

(ii) Although the appellant had (iii) Appellant having been found pleaded guilty before the Commandto be not t for being retained in ser-

525 ing Ocer, he had proceeded in terms of Section 116 of the Act on the premise as if the delinquent ocer had not pleaded guilty and, thus, the Summary Court Martial proceedings must be held to have been conducted in accordance with law, particularly when he had again pleaded guilty before the Commanding Ocer in the said proceedings. (iii) The contentions raised before us having not been raised before the High Court, this Court should not entertain the same. 13. The fact that the appellant was suering from mental illness for a long time is not in dispute. We have noticed hereinbefore that he was recommended to be placed in Medical Category CEE for six to twelve years. His medical re-categorization, however, had not been done periodically. 14. From the records produced by the respondents, it is evident that the appellant had remained in one or the other Army Medical Hospitals from 8.7.1990. 15. Although he is said to have absented himself on and from 10.7.1990, it now transpires that he had been admitted at the Command Hospital, Ambala Cantt from 11.7.1990. This discrepancy has not been explained. It is true that the opinion of the Court of Enquiry is only recommendary in nature but it is also true that the Commanding Ocer in a proceeding for Summary Court Martial was required to take that fact into consideration. It is one thing to say that the recommendations of the Court of Enquiry had not been accepted but then if such recommendations had been made having regard to the materials which were brought on the records by the respondents themselves, we are of the opinion that it was obligatory on his part to assign some reasons in support thereof. It is evident that the premise on which such recommendation has been made by the Court of Enquiry was not taken into consideration in the Summary Court Martial proceeding. 16. In any event, the respondents themselves should have explained in their counter-adavit as to why the recommendations of the Court of Enquiry were not accepted. Once it is held that for the period of the purported absence in question or a part thereof he had not been absconding but was admitted in Military Hospital, Ambala Cantt, the matter deserved a deeper scrutiny at the hands of the competent authority. The movement orders in respect of the appellant who had been described as a patient clearly shows that he was admitted in Amabala Cantt Hospital on 11.7.1990. The movement order furthermore shows that he was also transferred to Chandigarh Hospital.

The Court of Enquiry in the aforementioned situation must be presumed to have made recommendations for regularization of his leave upon consideration of the relevant 17. Fairness and reasonableness records and particularly the movein the action of the State whether in ment orders.

526

Sheel Kr. Roy v. Secretary M/O Defence 2007 is permissible to impose more than one punishments but then also it is another thing that in exercising the said power all attending situations which fell for consideration by the punishing authority in regard to the quantum thereof would not be taken into consideration. It is clear that the Commanding Ocer in the Summary Court Martial proceedings failed to take into consideration the relevant fact and, thus, committed an error apparent on the face of the record. We are also of the opinion that in a case of this nature, imposition of both punishment of rigorous imprisonment for six years as also dismissal from service was wholly arbitrary in nature. It is also vitiated in law as all relevant facts were not taken into consideration. 20. The learned Additional Solicitor General took pains in explaining to us that the appellants condition had improved and, in fact the medical category was upgraded from CEE to AYE and ultimately he was found t for joining his duties only on 12.8.1991. The said submission, however, in our opinion, does not stand a moments scrutiny. What was required to be taken into consideration is the conduct of the appellant for the period 16.7.1990 to 22.7.1991. It is not the case of the respondents that even during the said period, his behaviour or mental condition was such which enabled the authorities to put him on trial or his behaviour even during the said period deserved a harsh punishment, assuming he was guilty of commission of misconduct. 21. On their own showing, the

a criminal proceeding or otherwise is the hallmark of Article 14 of the Constitution of India. The doctrine of proportionality is one of the grounds on the basis whereof the power of judicial review could be exercised. It was so held in Ex.Naik Sardar Singh v. Union of India and Ors. 1991(3) SCC 213. 18. We may also notice that in Ranjit Thakur v. Union of India and Ors. reported in 1987(4) SCC 611, this Court held : The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the oence and the oender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the oence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous deance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. 19. We although agree with the learned Additional Solicitor General that it is legally permissible to award more than one punishment in terms of Section 71 of the Act but we may notice that Section 39(a) specifically deals with the misconduct in respect of absence without leave. It is one thing to say that legally it

527 respondents accepted that during his entire service career, the appellant remained a mental patient and had been undergoing his treatment in one hospital or the other. It was, therefore, obligatory on the part of the Commanding Ocer to take into consideration the said fact for the purpose of arriving at a nding of his guilt on the charges of misconduct as also for xing the quantum of punishment. It is in that limited sense, assignment of some reasons in a case of this nature must be held to be necessary. It is now a well settled legal principle which has rmly been accepted throughout the world that a person merely by joining Armed Forces does not cease to be a citizen or be deprived of his human or constitutional right. This aspect of the matter has been considered by a Division Bench of the Delhi High Court in Nirmal Lakra v. Union of India & Ors. reported in 2003(1) SLJ 151. 22. Once it is held that arbitrariness of the Commanding Ocer in the matter of holding the appellant and awarding punishment upon him is apparent on the face of the record, the impugned order must be held to be wholly unsustainable. 23. We regard our inability to accept the contentions of the learned Additional Solicitor General that even in a case of this nature we would shut our eyes to the realities of case and allow gross injustice meted to a citizen of India to be perpetuated on mere technicalities. 24. Moreover, we have noticed hereinbefore that the learned counsel for the appellant stated before us that even the recommendations of the Court of Enquiry had not been produced before the High Court. If that be so, even at that stage, the appellant did not have the advantage of a better assistance from his counsel. 25. The question, however, which arises for consideration is the relief which can be granted to the appellant. He has already undergone the sentence. He has not been working since 1991. He had also remained in Hospital for a long time. Although, thus, it is not possible for us to grant him all the prayers made in his writ petition before the High Court, we are of the opinion that keeping in view the peculiar facts and circumstances of this case, interest of justice would be met if it is directed that he should be deemed to have been discharged from 7.9.1991. He would, thus, be entitled to all benets arising therefrom. The appeal is allowed in part and to the extent mentioned hereinbefore. However, in the facts and circumstances of this case, there shall be no order as to costs.

528

Sheel Kr. Roy v. Secretary M/O Defence 2007

Chapter 47

Ram Sunder Ram v. Union of India 2007

Ram Sunder Ram v. Union Of has been preferred by Ram Sunder India & Ors on 11 July, 2007 Ram (appellant herein) against the judgment and order dated 10.12.2004 Author: L S Panta of a Division Bench of the High Bench: T Chatterjee, L S Panta Court of Calcutta by which M.A.T. CASE NO.: No.2856 of 1997 led by the Union of India and Others (respondents Appeal (civil) 2951 of 2007 herein) was allowed and the judgPETITIONER: ment and order dated 07.08.1997 of Ram Sunder Ram a learned Single Judge, allowing the RESPONDENT: Writ Petition (C.O. No.12843 (W) No.1991) led by the appellant, was Union of India & Ors DATE OF JUDGMENT: set aside. 3. The appellant led writ petition in the High Court of Calcutta BENCH: for setting aside the order of disTarun Chatterjee & Lokeshwar charge from the Army Service passed Singh Panta by the Commander, 33 Corps ArJUDGMENT: tillery Brigade (respondent No.5 in the present appeal) who was compeJUDGMENT tent authority under Rule 13 of the [Arising out of S. L. P. (C) Army Rules 1954. No.5536 of 2005] 4. The learned Single Judge alLOKESHWAR SINGH PANTA, lowed the writ petition inter alia on J. the ground that the principles of nat1. Special leave granted. ural justice have not been followed by 2. This appeal, by special leave, the competent authority while pass11/07/2007

530 ing the order of discharge.

Ram Sunder Ram v. Union of India 2007 tained for interrogation under custody. During interrogation, the appellant made confessional statement of receiving illegal money of Rs. 12,500/- from one Shri Rajendra Singh, owner of Pansari Shop, for sale of 87 MT Gas through BPLs and Kerbside Pump, kept by Dvr. Gde 11 Ramakant Prasad of A Coy 5033 ASC Bn (MT). The appellant later on deposited Rs. 5,200/- out of Rs.12,500/-. 8. The court of inquiry was completed and on 24.08.1988 the enquiry report was submitted to the competent authority. 9. The appellant, having been found guilty of prejudicial act to good order and military discipline, was charged under Section 63 of the Army Act, 1950 [for short the Army Act]. On 08.08.1989, Major H. S. Dhillon, Presiding Ocer, Summary of Evidence, sent a letter to the appellant and LDC J.P. Singh directing them to be present on 9th August, 1989 at 1000 Hrs. for recording summary evidence. The evidence was collected by the court of inquiry against the appellant and some other Army Ocials. On 03.07.1991, the appellant was informed by respondent No. 5 that while working with A Coy 5033 ASC Bn (MT), the appellant received Rs. 12,500/as illegal money from Shri Rajendra Singh, owner of Pansari shop and converted the said amount to self use, well knowing it to be from sale of 87 MT Gas through BPLs and Kerbside Pump, kept by Dvr. Gde 11 Ramakant Prasad of A Coy 5033 ASC Bn (MT). He was, there-

5. The respondents then preferred writ appeal before the Division Bench of the High Court, which allowed the same by the judgment and order impugned by the appellant in this appeal before us. 6. On 26.09.1980, the appellant was appointed as Cleaner in ClassIV with the Indian Armed Forces. On 23.09.1983, he became LDC in the Army establishment. On 03.07.1988, the appellant was deputed to perform the duties of Petrol, Oil and Lubricants (POL) Clerk. On 09.08.1988, the competent authority ordered convening of the court of inquiry based upon certain anonymous complaints, on the following issues: A. Investigating the circumstances, under which quantity 70 KL of 70 MT Gas issued to 5033 ASC Battalion against IOC installation, New Jalpaiguri, has not been received by the Unit and pinpoints the responsibility for the loss. B. To scrutinize the records for the last two years and also to examine the procedure being followed for receipt, demand, collection and accounting the issue of POL in the operation of Kerbside Pump. C. To indicate loopholes and suggest remedy and measures. D. To indicate losses other than those mentioned in the order. 7. The court of inquiry deliberations was held by the authority between the period commencing from 16.08.1988 and 12.12.1988. On 06.10.1988, the appellant was de-

531 fore, asked to show cause within 15 days of the receipt of the notice as to why his services should not be terminated for the lapse committed by him. After the appellant showed cause on 13.08.1991 which was found unsatisfactory, the respondent No.5 discharged him from service on 09.09.1991. 10. The appellant challenged the order of discharge from service in the High Court of Calcutta. The learned Single Judge, as stated above, set aside the said order of discharge inter alia on the ground of violation of the principles of natural justice and directed the respondents to reinstate the appellant with 25% of his arrear salaries as per the last pay drawn. Further, it was observed that the Army Authority was not prevented from taking appropriate steps against the appellant in accordance with law, if they so advised and technicalities alone ought not to stand in the way in that regard. In writ appeal, the order of the learned Single Judge came to be set aside by a Division Bench of the High Court and the Writ Petition led by the appellant was accordingly dismissed. 11. Hence, this appeal by the appellant. have been used as evidence against the appellant contrary to Rule 12 of the Army Rules, 1954 [hereinafter referred to as the Army Rules] as no discharge certicate required to be furnished under the provisions of Section 23 of the Army Act was prepared and sent to the appellant. 13. It was argued for the appellant that the court of inquiry, acting under the Army Rules, collects evidence during fact nding proceedings and no one is accused or charged of any oence in that proceedings. It was argued that the evidence collected during court of inquiry is not admissible against the appellant in view of Section 63 of the Army Act under which the case should have been remanded for trial by court martial as was done in the case of other army personnel, who were dealt with by court martial and they were retained in service by imposing minor punishment upon them whereas the appellant was discharged from service, as a result thereof his entire past service has been forfeited and he has been deprived of the benet of pension as also future employment in any other civil service. The learned counsel contended that the appellant was administratively discharged from service contrary to the provisions of Section 63 and there is no provision to impose major penalty in the form of termination of service of the appellant by the respondent No.5 under the guise of discharge from service in exercise of power under Section 20 of the Army Act.

12. Capt. K. S. Bhati, learned counsel appearing for the appellant, argued as a question of law that the order of removing the appellant from service was vitiated being contrary to Section 63 of the Army Act, which provides for imposing any kind of punishment only after conviction by 14. Mr. Vikas Singh, learned court martial. He contended that the ASG appearing for the respondents, proceedings of the court of inquiry

532

Ram Sunder Ram v. Union of India 2007 tabulates the category of the Army ocial, causes/grounds of discharge, the authorities competent to pass the order of discharge and the manner of discharge.

on the other hand, made submissions to support the judgment of the Division Bench of the High Court. He contended that the well reasoned judgment of the Division Bench does not suer from any inrmity or perversity, warranting interference by this Court. He contended that the authority empowered under Rule 13 of the Army Rules has passed the order of discharge simpliciter under Section 22 of the Army Act and Section 20 appears to have been wrongly mentioned by the authority in the order of discharge.

18. It is not in dispute that the appellant has been discharged under Rule 13 column 2 (v) of the Table below sub-rule (3) on the grounds of all other classes of discharge by Brigade/Sub-Area Commander who, admittedly, was competent authority to authorize discharge of the appellant. Column 4 of the Table provides manner of discharge, which reads as 15. We have given our thought- under: ful and anxious consideration to the The Brigade or Sub-Area Comrespective contentions of the parties mander before ordering the discharge and have perused the entire material shall, if the circumstances of the case on record. permit give to the person whose dis16. It is an admitted case of the parties that the appellant is governed by the provisions of the Army Act and the Army Rules framed thereunder. The scheme of the Army Act is fairly clear. Chapter IV of the Act deals with Conditions of Service of persons subject to the Army Act. 17. Section 20 of the Act deals with dismissal, removal or reduction by the Chief of the Army Sta and by other ocers. Section 191 of the Act empowers the Central Government to make rules for the purpose of carrying into eect the provisions of the Army Act. In exercise of the said power, the Central Government has framed the rules called The Army Rules, 1954. Chapter III of the Army Rules deals with dismissal, discharge, etc. Chapter V of the Army Rules deals with investigation of charges and trial by court martial. Rule 13 charge is contemplated an opportunity to show cause against the contemplated discharge. 19. The order of discharge of the appellant from the Army service has been passed by the competent authority under Section 22 of the Army Act read with Rule 13 on the grounds covered under column (2)(v) of the Table, after aording adequate opportunity to him of showing cause before the said order of discharge came to be passed. We are, however, satised on the material placed before us that the court of inquiry was formed under Rule 177 of the Army Rules and the purpose of court of inquiry was to collect the evidence for the information of superior ocers to make up their mind about the involvement of the appellant and the other army ofcials in the racket of clandestine

533 sale of petrol. In the court of inquiry, the appellant was heard and was given proper and adequate opportunity to cross-examine the witnesses, which he did not choose to avail. The respondents, in Para 20 of the counter adavit led in opposition to the writ petition before the High Court, have made categorical statement that in the court of inquiry the appellant was given full opportunity to defend his case and to crossexamine the witnesses who appeared and deposed before the Recording Ocer, but the appellant was just sitting throughout the proceedings and did not avail the opportunity of cross-examining the witnesses. The appellant has not denied this assertion of the respondents in the rejoinder adavit. 20. As noticed above, the appellant had shown cause vide reply dated 13.08.1991 (Annexure P6) to the show cause notice dated 03.07.1991 (Annexure P5) issued to him by respondent No.5. The competent authority considered the reply of the appellant in right perspective and found the same not satisfactory. Therefore, on 09.09.1991, the competent authority passed the order of discharge (Annexure P7) of the appellant from the army service with immediate eect in exercise of the power under Section 20 of the Army Act. It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law [see N. Mani v. Sangeetha Theatre & Ors. (2004) 12 SCC 278]. Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the learned counsel for the appellant. A plain reading of the order of discharge shows that it is an order of termination of service simpliciter without casting or attaching any stigma to the conduct of the appellant, therefore the said order cannot be termed to be punitive in nature or prejudicial to the future employment of the appellant in getting employment in civil service. Thus, the contention of the learned counsel for the appellant that the order of discharge is punitive in nature does not merit acceptance. 21. The Division Bench of the High Court has noticed the decisions of this Court relied upon by the appellant in the cases of Ex. Naik Sardar Singh v. Union of India & Ors. [AIR 1992 SC 417], Major Suresh Chand Mehta v. The Defence Secretary (U.O.I.) & Ors. [AIR 1991

534

Ram Sunder Ram v. Union of India 2007 report in regard to any matter which may be referred to the ocers and such an inquiry is for the purpose of a preliminary investigation and cannot be equated with a trial or court martial. All the above cited decisions are of no assistance to the appellant in the peculiar facts of the case on hand. We are satised that there is ample evidence on record in support of the judgment and order of the Division Bench of the High Court and there is nothing that would justify this Court interfering with it. Therefore, the above arguments of the appellant are unacceptable to us. 22. For the reasons discussed above, the appeal is devoid of merit and it is, accordingly, dismissed. The judgment and order of the Division Bench is armed. The parties, however, are left to bear their own costs.

SC 483], Lt. Col. Prithi Pal Singh Bedi v. Union of India & Ors. [AIR 1982 SC 1413] and S. N. Mukherjee v. Union of India [(1990) 4 SCC 594]. In the said decisions, this Court has dealt with the matter of imposition of punishment on Army ocials who were subjected to court martial proceedings. In S. N. Mukherjees case (supra), this Court was dealing with the requirement of recording of reasons by an authority exercising quasijudicial function, besides challenge to the court martial proceedings. Reliance was placed on Paragraph 13 of the judgment of this Court in the case of Major Suresh Chand Mehta (supra). In that case, this Court held that the court of inquiry, as provided under Rule 177 of the Army Rules, is merely held for the purpose of collecting evidence and if so required, to

Chapter 48

Union of India and another v. SPS Vains 2008

Union of India and another v. der of the Punjab and Haryana High SPS Vains (Retd.) (Altamas Kabir Court allowing the writ petition led and Markandey Katju, JJ.) by the respondents herein with the Union of India and another - following directions : For the foreAppellant(s) v. SPS Vains (Retd.) going reasons, the writ petition is allowed and the respondents are diand others - Respondent(s) rected to x minimum pay scale of Civil Appeal No. 5566 of 2008, the Major General above that of the decided on September 9, 2008 [@ Brigadier and grant pay above that Special Leave Petition (Civil) No. of a Brigadier as has been done in the 12357 of 2006] case of post 1.1.1996 retirees and conThe judgment of the Court was sequently x the pension and family delivered by Altamas Kabir, J. pension accordingly. There shall be no order as to costs. 1. Leave granted. 2. Interlocutory Application No.2 of 2006 led by Major General S.C. Suri (Retd.) and 67 others similarly placed as the respondents is allowed. 3. Only a very limited issue falls for our consideration in this appeal which has been led by the Union of India through the Secretary, Ministry of Defence and the Chief of Army Sta through the Adjudant General Army Headquarters, New Delhi, against the judgment and or4. As would be evident from the above, the primary question which falls for decision in this appeal is whether the High Court had in the exercise of its jurisdiction correctly directed that ocers of the rank of Major General, who had retired prior to 1st January, 1996, when revision of pay scales took eect, be given the benet of the provisions of the revised pay scale, notwithstanding the fact that in terms of the policy only those who retired after the said cut-

536

Union of India and another v. SPS Vains 2008 6. The anomaly arose with the acceptance by the Government of the recommendations of the Fifth Pay Commission which has created a situation whereby Brigadiers began drawing more pay than Major Generals and were, therefore, receiving higher pension and family pension than Major Generals. In view of the recommendations of the Fifth Pay Commission, a Brigadier was given a pay scale of Rs.15350-450-17600 together with rank pay of Rs.2,400/whereas a Major General was given a pay scale of Rs.18400- 500-22400. In other words, the maximum pay in the pay scale of Brigadier is 17,600/- and the minimum pay in the pay scale of Major General is Rs.18,400/-. Inasmuch as, no rank pay was provided for beyond the rank of Brigadier, the minimum pay provided for a Major General became less than that of a Brigadier who may had reached the maximum point in his scale. Consequently, on retirement, the pension of a Brigadier became more than that of a Major General, since rank pay is also taken into consideration for the purpose of calculating pension and family pension. The pension of a Major General thus became Rs.9,200/-, while that of a Brigadier was Rs.9,550/-. 7. It is this anomaly, when pointed out, which prompted the Government to step up the pension of Major Generals who had retired prior to 1.1.1996, from Rs.9,200/- to Rs.9,550/- giving them the same pension as was given to Brigadiers. Before the High Court it was urged on behalf of the writ petitioners, who

o date would be entitled to such benet. The larger issue involved is whether there could be a disparity in payment of pension to ocers of the same rank, who had retired prior to the introduction of the revised pay scales, with those who retired thereafter. 5. The case which has been made out in the High Court in the writ petition led by the respondent herein is that prior to revision of the pay scales from 1.1.1996 the running pay band from Lieutenant to Brigadier, irrespective of promotion, introduced on the basis of the Fourth Pay Commissions recommendations, was Rs.2300-100-3900-EB- 150-4500-EB5100. The rank pay that was xed was Rs.200/-, 600/-, 800/-, 1000/and 1200/- for the ranks of Captain, Major General, Lieutenant Colonel, Colonel and Brigadier, respectively. While a Major General was given a starting salary of Rs.6700/- on the basis of the recommendations of the Fourth Pay Commission, a Brigadier could draw Rs.5,100/- and additional rank pay of Rs.1200/- making a total of Rs.6300/-. Consequently, a Major General always drew higher pay than a Brigadier and the pension payable to ocers on the basis of the recommendations of the Fourth Pay Commission was calculated on the basis of salary drawn during the last 10 months prior to retirement. Even on such basis, a Major General always drew more pension and family pension than a Brigadier. It has to be kept in mind that the rank of Brigadier is a feeder post for the promotional rank of Major General.

537 at the time of their retirement had held the rank of Major General or Air Vice Marshal, that while the writ petitioners and others similarly placed ocers who had retired prior to 1.1.1996 were given the same pension as that of a Brigadier, those ofcers of similar rank who had retired after 1.1.1996 were given pension according to clause 12(c) of Special Army Instructions 2/S/1998, as a result whereof they were getting much higher pension and family pension than the writ petitioners, despite being of the same rank. It was pointed out that by virtue of the aforesaid Special Instruction the initial pay of an ocer promoted to the rank of Major General would be xed at the stage next above the pay notionally arrived at by increasing his pay, including rank pay of Brigadier, by one increment in the revised scale at the relevant stage. It is this classication within a class which led to the ling of the writ petition before the High Court. Before the High Court it was urged further that such dierentiation between ocers holding the same rank on the date of retirement was wholly erroneous and violative of the provisions of Article 14 of the Constitution. Court has been questioned in this appeal by the Union of India and the Chief of Army Sta. 10. Before us, the Union of India has taken a stand that the High Court misinterpreted the policy relating to xation of pay of ocers of the Defence Services and had also misunderstood the scope of the policy with regard to those ocers who had retired prior to the revision of the pay scales and that their pay scales had already been revised at the time of their superannuation from service. In their case, therefore, the question of revision of pay scale could not arise and they could only claim that their pension, including family pension, should not be lower than that of a Brigadier which is a feeder post for the post of Major General having higher and more onerous responsibilities. 11. In this regard reference was made to a communication dated 7.6.1999 addressed to the Chiefs of the three wings of the Defence Services on behalf of the Ministry of Defence, Government of India, in which a dierentiation appears to have been made between ocers who had retired prior to 1.1.1996 and those who retired thereafter since a reference was made to two of the Ministrys letters dated 3.2.1998 dealing with post 1.1.1996 and the other dated 24.11.1997 dealing with pre 1.1.1996 cases.

8. Rejecting the submissions made on behalf of Government that there could be no fresh xation of pay once an ocer had retired and the only rexation possible would be that of pension, the High Court al12. Reference was also made lowed the writ petition and disposed to Special Army Instruction dated of the same with the directions indi19.12.1997 indicating that in purcated hereinabove. suance of the recommendations of 9. The said decision of the High the Fifth Central Pay Commission

538

Union of India and another v. SPS Vains 2008 dia, had taken a considered decision in xing 1.1.1996 as a cut-o date since the pay scales were revised with eect from the said date, and the pay scales of ocers who had retired prior to the said date had already been xed and there was no question of rexation of their pay scales and all they were entitled to was pension which was not less than that received by Brigadiers who had been given the benet of the revision of pay scales and, were, therefore, drawing a higher salary resulting in higher pension. 15. The learned Additional Solicitor General urged that the High Court had erred in directing that the pay of Major Generals who had retired prior to 1.1.1996 be rexed according to the revised pay scales so as to give them the benet of higher pension than ocers of the rank of Brigadier. 16. The case of the respondents however, was that in view of the Constitution Bench decision of this Court in D.S. Nakara and others vs. Union of India (1983) 1 SCC 305, the xation of a cut-o date as a result of which equals were treated as unequals, was wholly arbitrary and had been rightly interfered with by the High Court. One of the questions posed in the aforesaid decision was whether a class of pensioners could be divided for the purpose of entitlement and payment of pension into those who retired by a certain date and those who retired thereafter. The question was answered by the Constitution Bench holding that such division being both arbi-

and the Government decision thereupon, the existing pay scales admissible to Army Ocers would be revised with eect from January, 1996. The said Instruction also indicated that the said provisions would apply to all ocers who were on the eective strength of the Army as on 1.1.1996 and those who joined thereafter, and also to trainee ocers who were undergoing Pay Commission training on 1.1.1996 and trainee ocers who joined after the said date. Reference was also made from the said Instruction to paragraph 9 thereof dealing with the stepping up of pay of Major Generals on promotion from the rank of Brigadier prior to 1.1.1996. In the said paragraph it has been specically indicated that pay of all ocers promoted to the rank of Major General prior to 1.1.1996 would be stepped up to become equal to the pay xed for Brigadiers in the revised pay scale as on 1.1.1996, subject to certain conditions. 13. Yet another communication to the three Chiefs of the Defence Services dated 3.2.1998 issued by the Ministry of Defence, Government of India relating to the implementation of the Governments decision on the recommendations of the Fifth Central Pay Commission regarding pensionary benets for ocers and personnel below ocers rank belonging to the armed forces, retiring on or after 1.1.1996, which would, however, have no application to those who had superannuated prior to 1.1.1996. 14. Learned Additional Solicitor General submitted that the Ministry of Defence, Government of In-

539 trary and unprincipled the classica- ted that ocers of the rank of Mation did not stand the test of Article jor General, who had retired prior 14. to 1.1.1996 should not be made the 17. Several other decisions were target of the bureaucratic error comalso relied upon by the respondents, mitted by the Government in rexwhich, in fact, followed D.S. Nakaras ing the scale of pay of Brigadiers afcase (supra) and there is, therefore, ter 1.1.1996 in such a manner so that no need to deal with them separately. by adding the rank pay to their basic pay, their pay at the time of re18. It was also the respondents tirement was higher than that of a case that though there was no disMajor General which was a superior pute that Major Generals were enrank, thereby creating an anomaly in titled to higher pensionary benets the pension entitlement of ocers of than that enjoyed by Brigadiers, the the two aforesaid ranks. appellant erroneously insisted that 21. Mr. P.N. Lekhi, learned sethe cut-o date had to be xed in view of the limited nancial resources nior counsel who appeared for the available to cover the additional ex- added respondents, while adopting penses to be incurred on account of Mr. Guptas submissions referred to the decision of this Court in revision of pay scales. R.Viswan and others vs. Union of 19. On behalf of the responIndia and others, (1983) 3 SCC 401, dents reliance was also placed on two on the question of morale and subletters addressed by the Chairman, mitted that the arbitrary decision to Chief of Sta Committee, dated discriminate between the two sets of 8.2.2006 and 21.2.2006, along with ocers belonging to the same rank in the recommendation made by the the matter of payment of pension was Air Chief Marshal on 17.2.2006, statbound to adversely eect the morale ing that it was necessary to corof senior ocers of the rank of Major rect the injustice and discrimination General which was in fact the feeder which had been aimed at denying post to the rank of Lieutenant Genthose ocers who had retired prior eral from amongst whom the Chief of to 1.1.1996, the benets of the penArmy Sta is ultimately chosen. sion enjoyed by ocers who retired 22. From the submissions made after the said date. the dispute appears to be conned 20. Mr. Nidhesh Gupta, learned only to the question whether ocers Senior Counsel who appeared for of the rank of Major General in the the respondents, submitted that the army and of equivalent rank in the judgment of the High Court did not two other wings of the Defence forces, call for any interference as the same who had retired prior to 1.1.1996, had been rendered on the touchstone have been validly excluded from the of Article 14 of the Constitution and benet of the revision of pay scales in consonance with the principle of in keeping with the recommendations administrative fair play. He submitof the Fifth Central Pay Commission

540

Union of India and another v. SPS Vains 2008

by virtue of Special Army Instruction they would be entitled to the bene2(S)98. t of the revision of pay scales after 23. On behalf of the appellant, 1.1.1996. Union of India, it has been sought to be contended that since the pay scale of those ocers who had retired prior to 1.1.96 had already been xed at the time of their retirement, the question of rexation of their pay scales on account of the revision could not be accepted as they would only be entitled to the benets of higher pension on account of such revision. The learned Additional Solicitor General, Mr. Vikas Singh, had contended that since an anomaly had been created in the pension payable to ocers of the rank of Major Generals, who on account of the revision of pay scales were receiving less pension than Brigadiers who were lower in rank, the Government had stepped up the pension of Major Generals who had retired prior to 1.1.1996, so that they did not receive pension less than what was given to ocers of the rank of Brigadier. 24. The said decision of the Central Government does not address the problem of a disparity having created within the same class so that two ocers both retiring as Major Generals, one prior to 1.1.1996 and the other after 1.1.1996, would get two dierent amounts of pension. While the ocers who retired prior to 1.1.1996 would now get the same pension as payable to a Brigadier on account of the stepping up of pension in keeping with the Fundamental Rules, the other set of Major Generals who retired after 1.1.1996 will get a higher amount of pension since 25. In our view, it would be arbitrary to allow such a situation to continue since the same also oends the provisions of Article 14 of the Constitution. 26. The question regarding creation of dierent classes within the same cadre on the basis of the doctrine of intelligible dierentia having nexus with the object to be achieved, has fallen for consideration at various intervals for the High Courts as well as this Court, over the years. The said question was taken up by a Constitution Bench in the case of D.S. Nakara (supra) where in no uncertain terms throughout the judgment it has been repeatedly observed that the date of retirement of an employee cannot form a valid criterion for classication, for if that is the criterion those who retired by the end of the month will form a class by themselves. In the context of that case, which is similar to that of the instant case, it was held that Article 14 of the Constitution had been wholly violated, inasmuch as, the Pension Rules being statutory in character, the amended Rules, specifying a cuto date resulted in dierential and discriminatory treatment of equals in the matter of commutation of pension. It was further observed that it would have a traumatic eect on those who retired just before that date. The division which classied pensioners into two classes was held to be articial and arbitrary and not based on any rational principle and

541 whatever principle, if there was any, had not only no nexus to the objects sought to be achieved by amending the Pension Rules, but was counter productive and ran counter to the very object of the pension scheme. It was ultimately held that the classication did not satisfy the test of Article 14 of the Constitution. ate a class within a class, but to ensure that the benets of pension were made available to all persons of the same class equally. To hold otherwise would cause violence to the provisions of Article 14 of the Constitution. It could not also have been the intention of the authorities to equate the pension payable to ocers of two dierent ranks by resorting to the step up principle envisaged in the Fundamental Rules in a manner where the other ocers belonging to the same cadre would be receiving a higher pension.

27. The Constitution Bench has discussed in detail the objects of granting pension and we need not, therefore, dilate any further on the said subject, but the decision in the aforesaid case has been consistently referred to in various subse31. We, accordingly, dismiss the quent judgments of this Court, to appeal and modify the order of the which we need not refer. High Court by directing that the pay 28. In fact, all the relevant of all pensioners in the rank of Majudgments delivered on the subject jor General and its equivalent rank in prior to the decision of the Constitu- the two other Wings of the Defence tion Bench have been considered and Services be notionally xed at the dealt with in detail in the aforesaid rate given to similar ocers of the same rank after the revision of pay case. scales with eect from 1.1.1996, and, 29. The directions ultimately thereafter, to compute their pengiven by the Constitution Bench in sionary benets on such basis with the said case in order to resolve the prospective eect from the date of dispute which had arisen, is of releling of the writ petition and to vance to resolve the dispute in this pay them the dierence within three case also. months from date with interest at 30. However, before we give such 10% per annum. The respondents directions we must also observe that will not be entitled to payment on acthe submissions advanced on behalf count of increased pension from prior of the Union of India cannot be ac- to the date of ling of the writ peticepted in view of the decision in D.S. tion. 32. The appeal is accordingly Nakaras case (supra). The object dismissed. 33. There will be no order sought to be achieved was not to cre- as to costs.

542

Union of India and another v. SPS Vains 2008

Chapter 49

P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008

P.K. Choudhury v. Commander, Leave granted. 48 BRTF(GREF) on 13 March, 2008 1. Appellant herein is aggrieved Author: S Sinha Bench: S Sinha, V by and dissatised with a judgment Sirpurkar and order dated 21st March, 2006 CASE NO.: passed by a learned Single Judge of the Gauhati High Court. Appeal (crl.) 480 of 2008 2. Indisputably, Appellant at all material times was a Commandant P.K. Choudhury of 48 BRTF (GREF) as a member RESPONDENT: of the Armed Forces. While he was Commander, 48 BRTF (GREF) acting in the said capacity, allegaDATE OF JUDGMENT: tions were made against him for commission of oences under Section 166 13/03/2008 and 167 of the Indian Penal Code, BENCH: 1860. S.B. Sinha V.S. Sirpurkar 3. The period during which the JUDGMENT: said oences are said to have been committed is 5.1.1989 to 11.2.1992. JUDGMENT CRIMINAL APPEAL NO. 480 A complaint petition was led in November, 2000 purported to be on OF 2008 the basis of a report dated 20.12.1996 (Arising out of SLP (Crl.) No. of the then Commander, 48 BRTF at 5911 of 2006) Tezu on 20.12.1996. S.B. Sinha, J. The Judicial Magistrate, First PETITIONER:

544

P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008

Class, Tezu took cognizance of the 8. There is no doubt or dispute said oences against the appellant by that the Court has the power to conan Order dated 7.11.2000. done the delay. No order condoning 4. The application led by the the delay has however, been passed appellant under Section 482 of the by the learned Judicial Magistrate in Code of Criminal Procedure, 1973 this case. for quashing the said proceedings has The ground taken for condonabeen dismissed by the Gauhati High tion of delay in the said complaint peCourt by reason of the impugned tition of the complainant is as under:judgment. 8. That a Court of Inquiry was 5. Mr. Nagendra Rai, the learned held by the Department against the senior counsel appearing on behalf of irregularities in Supply Orders and the appellant would submit that the thereafter the case was under conorder taking cognizance is bad in law sideration by Army HQ. The Cenas the same was led beyond the pre- tral Vigilance Commission alsoinves scribed period of limitation and in tigated the matter since 20 Dec. 1996 any event was not preceded by a valid and on the completion of investigaorder of sanction of the competent tion by CVC, the matter was barred authority as envisaged under Section by limitation for taking action under 197 of the Code of Criminal Proce- the Army Act against the accused. dure. Hence the delay in ling this com6. Section 166 and 167 of the In- plaint in the Court and the delay dian Penal Code provides for an of- may be condoned under Section 473 Cr.P.C. as the delay was not intenfence by a public servant. tional but inevitable in holding Court Whereas Section 166 prescribes a of Inquiry. sentence of simple imprisonment for 9. The learned Judicial Maga term which may extend to one year; istrate did not apply his mind on the sentence which can be imposed under Section 167 is one of either de- the said averments. It did not isscription for a term which may ex- sue any notice upon the appellant tend to three years or with ne or to show cause as to why the delay shall not be condoned. Before conwith both. doning the delay the appellant was 7. Section 468 of the Code of not heard. In State of MaharashCriminal Procedure, 1973 species tra v. Sharadchandra Vinayak Donthe period of limitation within which gre and Others [(1995) 1 SCC 42] the cognizance of an oence can be this Court held; 5. In our view, taken. Clause (c) of Sub-section (2) the High Court was perfectly justiof Section 468 species the period of ed in holding that the delay, if any, limitation to be three years if the for launching the prosecution, could oence is punishable with imprisonnot have been condoned without noment for a term exceeding one year tice to the respondents and behind but not exceeding three years. their back and without recording any

545 reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court however, did not adopt that course and proceeded further to hold that the trial court could not have taken cognizance of the oence in view of the application led by the prosecution seeking permission of the Court to le a supplementary charge-sheet on the basis of an incomplete charge-sheet and quashed the order of the CJM dated 21-111986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous. 10. In view of the aforesaid decision, there cannot be any doubt whatsoever that appellant was entitled to get an opportunity of being heard before the delay could be condoned. a direct nexus with commission of a criminal misconduct on the part of a public servant, indisputably an order of sanction was pre-requisite before the learned Judicial Magistrate could issue summons upon the appellant. 12. Respondents in their counter adavit, however, would contend that no such sanction was required to be taken as the appellant would be governed by the provisions of Section 125 and 126 of the Army Act, 1950. The said provisions in our considered opinion have no application whatsoever. 13. Section 125 of the Act postulates a choice of the competent authority to try an accused either by a criminal court or any court or proceedings for court martial. Section 126 provides for the power of the Criminal Court to require delivery of oender.

14. As an option to get the appellant tried in a ordinary criminal court had been exercised by the respondent, there cannot be any doubt whatsoever that all the pre-requisites therefor in regard to the period of 11. Far more important however, limitation as also the necessity to obis the question of non-grant of sanc- tain the order of sanction were retion. Appellant admittedly is a pub- quired to be complied with. lic servant. He is said to have misA Court of law cannot take cogused his position as a public servant. nizance of an oence, if it is barred Section 197 of the Code of Crim- by limitation. Delay in ling a cominal Procedure lays down require- plaint petition therefore has to be ments for obtaining an order of sanc- condoned. If the delay is not contion from the competent authority, doned, the court will have no juif in committing the oence, a pub- risdiction to take cognizance. Similic servant acted or purported to act larly unless it is held that a sanction in discharge of his ocial duty. As was not required to be obtained, the the oences under Section 166 and courts jurisdiction will be barred. 167 of the Indian Penal Code have

546

P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008 and Ors. [2008 (2) SCALE 303], having regard to the 41st Report of the Law Commission, this Court observed; 24. It was in pursuance of this observation that the expression was came to be employed after the expression is to make the need for sanction applicable even in cases where a retired public servant is sought to be prosecuted. It was furthermore held; 26. The High Court, therefore, was in error in observing that sanction was not necessary because the expression used is was. 16. The High Court, therefore, in our opinion committed a manifest error in passing the impugned judgment.

15. Section 197 of the Code unlike the provisions of the Prevention of Corruption Act postulates obtaining of an order of sanction even in a case where public servant has ceased to hold oce. The requirements to obtain a valid order of sanction have been highlighted by this Court in a large number of cases. In S.K. Zutshi and Another v. Bimal Debnath and Another [(2004) 8 SCC 31], this Court held; 11. The correct legal position, therefore, is that an accused facing prosecution for oences under the old Act or the new Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said oences. But the position is dierent in cases where Section 197 of the Code has application.

17. The issues raised by the appellant were jurisdictional ones. The See also State of Orissa through same should have been adverted to Kumar Raghvendra Singh and Oth- by the High Court. ers v. Ganesh Chandra Jew [(2004) For the reasons aforementioned, 8 SCC 40]. the impugned judgment cannot be Recently in Raghunath Anant sustained. It is set aside accordingly. Govilkar v. State of Maharashtra Appeal is allowed. No costs.

Union Of India Anr vs V.N. Saxena on 1 April, 2008 Author: . A Pasayat Bench: D A Pasayat, P Sathasivam CASE NO.: Appeal (civil) 2764 of 2007 PETITIONER: Union of India Anr RESPONDENT: V.N. Saxena DATE OF JUDGMENT: 01/04/2008 BENCH:

547 DR. ARIJIT PASAYAT P. SATHASIVAM JUDGMENT: JUDGMENT CIVIL APPEAL NO. 2764 OF 2007 Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the judgment of a Division Bench of the Uttranchal High Court allowing the writ petition led by the respondent. The respondent had led the writ petition under Article 226 of the Constitution of India, 1950 (in short the Constitution) questioning the order dated 13.11.1990 whereby his services were terminated by orders of the Chief of Army Sta. 2. The High Court primarily relied on a decision of this Court in Major Radha Krishan v. Union of India Ors. (AIR 1996 SC 3091) and allowed the writ petition. 3. The stand of the appellants is that the High Court failed to notice that the relied-upon decision was held to be not correctly decided by a three judge Bench in Union of India Ors. v. Harjeet Singh Sandhu [2001(5) SCC 593]. 4. Learned counsel for the respondent submitted that the decision of the High Court was not based only on Major Radha Krishans case (supra) but on other grounds. 5. The High Court allowed the writ petition with the following conclusions: In Major Radha Krishan v. Union of India Ors. (AIR 1996 SC 3091, the Honble Apex Court has held that where the trial by Court Martial against the oences committed by an army personnel was barred by limitation under Section 122 of the Act, the summary procedure for termination under R.14(2) of the Rules, cannot be followed on the ground that the trial by Court Martial was inexpedient or impracticable. Such a satisfaction that the trial was inexpedient or impracticable can be arrived only at a time when trial by a Court Martial is permissive or possible. In view of the said principle of law and for the reasons as discussed above by us, the impugned order by which the services of the petitioner were dismissed is liable to be quashed. Accordingly the writ petition is allowed. The impugned order is quashed. The petitioner shall be entitled to the consequential benets, admissible (as of right) to him under the rules treating him Captain, the post he held on the date when the impugned order was passed. No order as to costs. 6. In Harjeet Singh Sandhus case (supra) the scope and ambit of the Army Act, 1950 (in short the Act) and Rule 40 of the Army Rules, 1954 (in

548

P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008

short the Rules) inter alia fell per consideration. This court also referred to earlier decision in Chief of Army Sta v. Major Dharam Pal Kukrety [1985(2) SCC 412]. 7. In Harjeet Singh Sandhus case (supra) it was inter alia observed as follows: 37. On the meaning which we are placing on the term impracticable as occurring in Rule 14(2) we proceed to provide resolutions to the several problems posed by the illustrations given by the learned Additional SolicitorGeneral. According to us: In Illustration (i) the expiry of the period of limitation prescribed by Section 122 renders the trial by Court Martial impracticable on the wider meaning of the term. There is yet another reason to take this view. Section 122 prescribes a period of limitation for the commencement of court martial proceedings but Parliament has chosen not to provide any bar of limitation on exercise of power conferred by Section 19. We cannot, by an interpretative process, read the bar of limitation provided by Section 122 into Section 19 of the Act in spite of a clear and deliberate legislative abstention. However, we have to caution that in such a case, though power under Section 19 read with Rule 14 may be exercised but the question may still be who has been responsible for the delay? The period prescribed by Section 122 may itself be taken laying down a guideline for determining the culpability of delay. In spite of power under Section 19 read with Rule 14 having become available to be exercised on account of a trial by a Court Martial having been rendered impracticable on account of bar of limitation created by Section 122, other considerations would assume relevance, such as whether the facts or set of facts constituting misconduct being three years old or more have ceased to be relevant for exercising the power under Section 19 read with Rule 14. If there was inaction on the part of the authorities resulting in delay and attracting bar of limitation under Section 122 can it be said that the authorities are taking advantage of their own inaction or default? If the answer be yes, such belated decision to invoke Section 19 may stand vitiated, not for any lack of jurisdiction but for colourable or mala de exercise of power. 38. In Illustration (ii), the Court Martial has stood dissolved for fortuitous circumstance for which no one is to be blamed neither the Chief of the Army Sta nor the delinquent ocer. The delinquent ocer, howsoever grave his misconduct amounting to oence may have been, would go scotfree. It would be fastidious to hold that bar of limitation under Section 122 would also exclude the exercise of power under Section 19 read with Rule 14. 41. Having thus explained the law and claried the same by providing resolutions to the several illustrative problems posed by the learned

549 Additional Solicitor-General for the consideration of this Court (which are illustrative and not exhaustive), we are of the opinion that the expiry of period of limitation under Section 122 of the Act does not ipso facto take away the exercise of power under Section 19 read with Rule 14. The power is available to be exercised though in the facts and circumstances of an individual case, it may be inexpedient to exercise such power or the exercise of such power may stand vitiated if it is shown to have been exercised in a manner which may be called colourable exercise of power or an abuse of power, what at times is also termed in administrative law as fraud on power. A misconduct committed a number of years before, which was not promptly and within the prescribed period of limitation subjected to trial by a Court Martial, and also by reference to which the power under Section 19 was not promptly exercised may cease to be relevant by long lapse of time. A subsequent misconduct though less serious may aggravate the gravity of an earlier misconduct and provide need for exercise of power under Section 19. That would all depend on the facts and circumstances of an individual case. No hard-and-fast rule can be laid down in that behalf. A broad proposition that power under Section 19 read with Rule 14 cannot be exercised solely on the ground of court martial proceedings having not commenced within the period of limitation prescribed by Section 122 of the Act, cannot be accepted. In the scheme of the Act and the purpose sought to be achieved by Section 19 read with Rule 14, there is no reason to place a narrow construction on the term impracticable and therefore on availability or happening of such events as render trial by Court Martial impermissible or legally impossible or not practicable, the situation would be covered by the expression the trial by Court Martial having become impracticable. 43. We are also of the opinion that Major Radha Krishan case (supra) lays down propositions too broad to be acceptable to the extent it holds that once the period of limitation for trial by Court Martial is over, the authorities cannot take action under Rule 14(2). We also do not agree with the proposition that for the purpose of Rule 14(2), impracticability is a concept dierent from impossibility (or impermissibility, for that matter). The view of the Court in that case should be treated as conned to the facts and circumstances of that case alone. We agree with the submission of the learned Additional Solicitor-General that the case of Dharam Pal Kukretys case (supra) being a three-Judge Bench decision of this Court, should have been placed before the two-Judge Bench which heard and decided Major Radha Krishan case (supra). 8. Since the foundation of the impugned judgment of the High Court is Major Radha Krishnans case (supra), we therefore, set aside the impugned order of the High Court and remit the matter to it for a fresh consideration keeping in view the position in law as delineated in Harjeet Singh Sandhus

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P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008

case (supra). Since the matter is pending long we request the High Court to dispose of the Writ Petition as early as practicable preferably by the end of September, 2008. 9. The appeal is allowed to the aforesaid extent. No costs.

Chapter 50

Bachan Singh v. Union of India 2008

Bachan Singh v. Union of India (C.K. Thakker and Lokeshwar Singh Panta, JJ.) Bachan Singh Appellant v. Union of India & Ors. - Respondent(s) Civil Appeal No. 3110 of 2004, decided on July 10, 2008 The judgment of the Court was delivered by Lokeshwar Singh Panta, J. Bachan Singh - appellant is aggrieved by the judgment and order dated February 5, 2002 passed by the Division Bench of the High Court of Jammu and Kashmir at Jammu allowing the LPA (SW) No. 284/97 led by the respondents herein against the judgment dated November 20, 1996 of the learned Single Judge of the High Court whereby the learned Single Judge allowed SWP No. 14-A/1984 led by the appellant and quashed the General Court Martial held against him including conrmation of sentence passed upon him by the General Court Martial and the appellant is relegated back to the position he had on the date of passing of the order with all the benets under the Rules. A General Court Martial (GCM) under the Army Act, 1950 (for short the Act was convened ) by the competent authority on January 4, 1982 under Section 109 of the Act to try the appellant holding the rank of Sepoy in Second Batallion, the Dogra Regiment in the Army. The allegations against the appellant for which he was suspected to be tried by GCM were:- No.3973649A Sep Bachan Singh of 2DOGRA is resident of village Paragwal, Tehsil Akhnoor, District Jammu (JK) S/o Shri Dharam Singh and step son of Smt. Gyano Devi, second wife of Shri Dharam Singh. Sep. Bachan Singh studied in Govt. Lower High School, Paragwal upto the 9th. He was enrolled in the Army on 11 Oct. 75 to Meerut in the Dogra Regt. He is married to Smt. Veena Kumari D/o Shri Durga Singh resident of Village Chargarwar, Tehsil Jammu, District Jammu (JK). Sep Bachan Singh proceeded on annual leave w.e.f. 16 Jan 80 to 15 Mar 80 to his home station village Paragwal,

552

Bachan Singh v. Union of India 2008 back to the unit on 10 Aug 80.The order convening the Court Martial reads as under:- FORM OF ORDER FOR THE ASSEMBLY OF A GENERAL COURT MARTIAL UNDER ARMY ACT Orders by IC-5095P Major General K. Mahipat Sinhji Ofciating General Ocer Commanding 16 Corps. Place: Field Date:15 December, 1981. No.3973649A Sepoy The details of ocers mentioned Bachan Singh 2nd below will assemble at Field on Batallion The Dogra the Sixteenth day of December Regiment 1981 for the purpose of trying by a General Court Martial the accused person named in the margin (and such other person or persons as may be brought before them.) The Senior Ocer to sit as Presiding Ocer. MEMBERS IC-7757L Brig. Talwar Harjeet - Cdr 191 Inf Bde IC12716L Lt. Col. Borkar, Mukand Narasinha - OC 1890 Indep Lt Bty. IC-28737L Maj Vohra, Satyendra Mohan - 2 SIKH IC-25247M Capt Jagmal Singh - 37 Med Regt IC34139K Capt Ranjit Barkakoty - 81 Armd Regt. WAITING MEMBERS IC-13474A Lt Col. Brar, Surjit Singh - OC 28 EME Bn IC-24826M Gill Mohanjit Singh - 8 CAV IC35033K Capt Hari Mohan Joshi 374 Sig Regt JUDGE ADVOCATE IC-36504Y Maj Deosthale Jayant Kumar - DAJAG HQ Northern Command is appointed Judge Advocate PROSECUTOR IC-29015L Maj Valentine, Joseph Melvin - 9 MADRAS appointed prosecutor The accused will be warned, and all witnesses duly required to attend. The proceedings (of which only three copies are required) will be forwarded

Tehsil Akhnoor. Shri Bachan Singh S/o Shri Waryam Singh resident of Village Najwal, Tehsil Akhnoor, District Jammu (JK) which is about 3 kms. from village Paragwal is related to Sep Bachan Singh. Sep Bachan Singh step mother Smt. Gyano s Devi is the younger sister of Shri Rattan Singh mother Smt. Vidya s Devi. During the month of Feb 80 Smt. Vidya Devi had gone over to Sep Bachan Singh house and ins vited him and his wife over to her place. On 12 Mar 80 Sep Bachan Singh along with his wife Smt. Veena Devi and his three months old son went to Smt. Vidya Devi house. s Shri Rattan Singh and Sep Bachan Singh consumed country liquor that night. At about 2130 hours Shri Rattan Singh and Sep Bachan Singh went out for a walk and while waling crossed the border into PAK territory where they were met by two PAK FIU sta at Post DERA. PAK if he was in possession of his identity card. Sep Bachan Singh gave his name as Narinder Singh son of Shri Surjeet Singh, his unit as 16 JK LI located at MIZORAM. PAK FIU sta gave Rs. 200/- Sep Bachan Singh when he reached his home. The next day, 13 Mar 80, Sep Bachan Singh with his family left for his home. On 15 Mar 80 Sep Bachan Singh left his village Paragwal to rejoin his unit. At 1830 hours 15 Mar 80, Sep Bachan Singh rejoined his unit, 2 DOGRA. On 04 Jul 80 Sep Bachan Singh under an escort proceeded to 168 ASC Bn on temp duty for interrogation at the Joint Interrogation Centre South C/o Det 4/290 Liaison Unit C/o 56 APO and returned

553 to Headquarters, 16 Corps, through DJAG Headquarters Northern Command. Signed this fteenth day of December, 1981. Sd/- (R.K. Kashyap) Lieutnant Colonel Assistant Adjutant General for Ociating General Ocer Commanding 16 CorpsThe charge sheet reads as under:- CHARGE SHEET The accused No. 3973649A Sep Bachan Singh, 2nd Batallion The Dogra Regiment is charged with:- Army Act AN ACT PREJUDICIAL TO GOOD ORDER AND Section 63 MILITARY DISCIPLINE in that he, at Village Najwal (JK) on 12 Mar 80, went across the International Border to Post DERA Pakistan, alongn with Shri Rattan Singh S/o Shri Waryam Singh of the said village. Sd/- Station: Field (Balwant Singh) Date: 12 Dec 81 Major Ociating Commanding Ocer nd 2 Batallion The Dogra Regiment To be tried by a General Court Martial Place : Field Sd/- Date: 12 Dec 81 (R.K. Kashyap) Lieutnant Colonel Assistant Ad-jutant General for Ociating General Ocer Commanding 16 CorpsSection 63 of the Act reads as under:- Violation of good order and discipline:- Any person subject to this Act who is guilty of any act or omission which, though not specied in this Act, is prejudicial to good order and military discipline shall, on conviction by court martial, be liable to suer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.After conclusion of the proceedings, the appellant was held guilty of the charge and was sentenced to suer two years imprisonment and also dismissed from service by order dated January 22, 1982 of the GCM. The sentence passed against the appellant was conrmed by the conrming authority as required under the Act. The appellant challenged his conviction and sentence in SWP No. 14-A/1984 led by him in the High Court of Jammu and Kashmir at Jammu which as noted above, was allowed by the learned Single Judge by order dated November 20, 1996. The ground which appealed to the learned Single Judge in setting aside the Court Martial and subsequent conrmation of sentence may be stated from the relevant paragraphs of the judgment of the learned Single Judge which are as under:- have gone through the I record that was produced before me today and also leafed through the statements made by the witnesses before the General Court Martial. Not even a single witness has deposed that he had seen or had any knowledge of the petitioner having crossed ever the International Border. There is absolutely no evidence. Learned counsel appearing for the respondents has vehemently relied upon the statement made by the accused/petitioner before the summary of evidence. According to him this statement was made voluntarily and can be safely acted upon. I decline to agree with the learned counsel for the reason, because, statements made before summary of evidence cannot be relied upon in the rst instance. Even then I have gone through the statement of the petitioner/accused before the general court martial. In that statement,

554

Bachan Singh v. Union of India 2008 Appeal (SW) No. 284/94. By order dated February 5, 2002, the Division Bench of the High Court allowed the appeal and set aside the order passed by the learned Single Judge in SWP No. 14-A/1994. Hence, the appellant has preferred this appeal. Mr. D.K. Garg, learned counsel appearing on behalf of the appellant in support of the judgment of the learned Single Judge, contended that the learned Single Judge has rightly quashed the GCM primarily on a ground that the GCM had been convened in violation of the mandate of Section 109 of the Act. According to the learned counsel, the GCM was not convened by the authority competent to do so in terms of Section 109. It was urged that there was no direct evidence produced on record of the GCM by the respondents to prove the guilt of the appellant for oence under Section 63 of the Act and in the absence of any evidence, the order of conviction and sentence imposed upon the appellant by the GCM was invalid, unsustainable and in violation of natural justice and in such circumstances the judgment of the learned Single Judge setting aside the order of the GCM could not have been interfered with by the Division Bench in Letters Patent Appeal. It was, therefore, submitted that the impugned order of the Division Bench of the High Court deserves to be set aside by restoring the order of the learned Single Judge. Mr. Parag P. Tripathi, learned Additional Solicitor General for the respondents on the other hand, supported the order passed by the Division Bench of the High Court and

the petitioner has vehemently stated that the earlier statement made by him during the summary of evidence was as a result of force exercised upon him during interrogation. He has totally resiled from this statement, did not own the same. I am tempted to refer to Article 20 of the Constitution read with Section 27 of the Evidence Act. The statement tendered by the accused/petitioner before the summary of evidence has been destroyed and another statement was later recorded. The general court martial has taken note of this statement and itself returned a nding in the following manner: The court decided to uphold the contention of defence and not to admit the above document in evi dence.General Court Martial seems to have suciently been conscious of the loop-holes which the statement had and it was because of these loopholes that this confessional statement was not acted upon. Suce to say that there is no evidence linking the petitioner/accused with the allegation under which he stands charged. On the strength of the foregoing reasoning, I nd the proceedings to be inconsistent with the provision of the Army Act and the nding of the court martial was not in accordance with the law. Therefore, the same is quashed and the petitioner is relegated back to the position he had on the date of passing of the order. He will be entitled to all the bene ts under rules.Aggrieved by the said order of the learned Single Judge of the High Court, the Union of India and the ocials concerned of the Army have preferred Letters Patent

555 submitted that the High Court was right in allowing the Letters Patent Appeal and in making the order. He submitted that the learned Single Judge has exceeded his jurisdiction under Article 226 of the Constitution of India by setting aside the Court Martial and subsequent order of conviction and sentence recorded against the appellant which was later on conrmed by the competent authority as envisaged under the Act and the Rules for violation of good order and discipline in terms of Section 63 of the Act. According to the learned counsel, this Court in exercise of its power under Article 136 of the Constitution may ordinarily not interfere with the order of the Division Bench. Having heard the learned counsel and having gone through the material on record and also the relevant provisions of the Army Act and Rules, in our opinion, the Division Bench of the High Court was justied in setting aside the order of the learned Single Judge who was not justied in setting aside the wellreasoned order of the GCM which was based upon proper and fair appreciation of the evidence of the material witnesses, statement made voluntarily by the appellant before it, other material and subsequent order of the conrming authority. The appellant contention that the convens ing of the GCM in this case is not valid because under Section 109 of the Act, the GCM can be convened only by any ocer who has been appointed by a specic warrant in that connection by the Chief of the Army Sta must be rejected. Under Section 109 of the Army Act, a GCM may be convened by the Central Government or the Chief of the Army Sta or by any ocer empowered in this behalf by warrant of the Chief of the Army Sta. There is nothing in Section 109 which requires the Chief of the Army Sta to issue a warrant for each specic case. A general warrant for convening GCM under the Act has been issued by the Chief of the Army Sta under Section 109 whereby all the ocers not being under the rank of a Field Ocer, commanding the 16 Corps are empowered to convene GCM for the trial of any person under his command who is subject to Military Law authorized by A-1 warrant duly signed by the Chief of the Army Sta was produced before the High Court which has been noticed and extracted in the judgment by the Division Bench. The warrant of autho rization reads as under:- Warrant of convening of General Court Martial under the Army Act. To, The OFICER NOT BEING UNDER THE RANK OF A FIELD OFFICER, COMMANDING THE XVI CORPS In pursuance of the provisions of the Army Act, 1950 (XLVI of 1950). I do hereby empower you, or the ofcer on whom your command may devolve during your absence, not under the rank of Field Ocer, from time to time as occasion may require, to convene General Courts Martial for the trial, in accordance with the said Act and the Rules made thereunder, of any person under your command who is subject to military law and is charged with any oence mentioned in the said Act, and is liable to be tried by a General Court Mar-

556

Bachan Singh v. Union of India 2008 A.K. Chowdary, Major Amin Chand Bhattee were recorded by the GCM on behalf of the prosecution in support of the charge in the presence of the appellant. The appellant was afforded full opportunity of cross examining the witnesses but he did not avail of the said opportunity. It appears from the record that despite giving warning to the appellant to the eect that he was not obliged to make any confessional statement, the appellant made written confessional statement on October, 22, 1980. The appellant made additional statement in addition to rst summary of evidence on 10th September, 1981 in the presence of witnesses namely IC-25616Y Major S.L. Gautam independent witness, Major Amin Chand Ocer recording Summary of Evidence. It appears from the record that second additional summary of evidence recorded on 10th September, 1981 was in compliance with Army Rules 23(1), 23(2), 23(3), 23(4) and 23(6) in which the appellant did confess his guilt. Chapter XII of the Act deals with Conrmation and Revision. Section 153 provides that no nding or sentence of a general, district or summary general, court martial shall be valid except so far as it may be conrmed as provided by this Act. Section 154 prescribes that the ndings and sentences of general courts martial may be conrmed by the Central Government, or by any ocer empowered in this behalf by warrant of the Central Government. The record of the respondents shown to us would establish that the ndings of conviction and sentences imposed upon the ap-

tial. And for doing so, this shall be, as well to you as to all others whom it may concern, a sucient warrant. Given under my hand at NEW DELHI this twenty fourth day of JUNE 1972. Sd/- General CHIEF OF THE ARMY STAFF. In the present case, the above said order dated 15th December, 1981 convening the assembly of GCM under the Act passed by IC-5095P Major General K. Mahipat Sinhji, Ociating General Ocer Commanding 16 Corps clearly proves that the GCM has been convened by a competent authority in accordance with the provisions of Section 109 of the Army Act. The members of the GCM were selected and appointed in compliance to Section 113 of the Act. Thus, the respondents have fully complied with the requirement of law. The record of the Court Martial produced before us by the learned Additional Solicitor General would reveal that the GCM was held against the appellant on dierent dates at Udhampur. The record would disclose that the appellant had made voluntarily written confessional statement before the GCM admitting the allegations levelled against him in the charge sheet. On bare perusal of the GCM, it becomes quite clear that the proceedings were recorded by the GCM in the presence of the appellant, his defending ocer and other witnesses. The statements of Major S.K. Sareen, Smt. Vidya Devi, Veena Kumari, Tara Chand, Rattan Singh, Prabhu Ram, Major S.B. Ambel, Pritam Singh, Capt.

557 pellant by the GCM were conrmed by the competent authority in terms of Section 154 of the Act. We nd the proceedings of the GCM to be quite immaculate where trial was fair and every possible opportunity was aorded to the appellant to defend his case. After ourselves examining the record of the court martial, we nd that the learned Single Judge, with respect to him, completely misdirected himself in coming to the conclusion that the proceedings held by GCM were inconsistent with the provisions of the Army Act and the nding of the Court Martial was not in accordance with the law. The appellant was given opportunity to inspect whatever record he wanted, his wife and other witnesses were examined in his presence and he had participated in the court martial proceedings without raising any objection. The GCM took into consideration the relevant oral evidence of the material witnesses and statement voluntarily made by the appellant and additional summary confessional statement duly signed by him in the presence of Major S.L. Gautam and Major Amin Chand who have also appended their signatures thereon and other materials produced before it, found the appellant guilty of the charge and convicted and sentenced him accordingly. The appellant led post conrmation petition against the order of the GCM under Section 164 of the Act, a copy whereof has been shown to us by the learned counsel for the appellant. We are informed by the learned Additional Solicitor General that the said petition has been rejected by the competent authority and ndings and sentences of the GCM recorded against the appellant were conrmed and the appellant was, accordingly, informed about the decision so taken by the authority. Indisputably, the appellant has neither challenged the said order of the competent authority passed under the Statute before the High Court in the writ petition nor was the order was brought to the notice of the Division Bench by the appellant at the time of hearing and deciding the Letters Patent Appeal. Having examined the above said order of the learned Single Judge, we nd that the ndings and reasonings recorded therein are not based upon proper assessment of the facts of the case and it was not necessary for the learned Single Judge to have minutely examined the record of the GCM as if he was sitting in appeal. We nd that on merits, the learned Single Judge has not clearly and plainly said that there was no case against the appellant to hold him guilty of the oence charged. It is well-known and well-settled proposition of law that in proceedings under Article 226 of the Constitution the High Court cannot sit as a Court of Appeal over the ndings recorded by the GCM. Judicial Review under Article 226 of the Constitution is not directed against the decision but is conned to the decision-making process. Judicial review is not an appeal but a review of the manner in which the decision is made. The court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision itself. Thus, examining the case

558

Bachan Singh v. Union of India 2008 amp; ORS. APPELLANT (S) VERSUS RAJPAL SINGH RESPONDENT (S) WITH [SLP (C) NOS. 14338-14339 OF 2008 AND SLP (C) NO.15430 OF 2008] JUDGMENT D.K. JAIN, J.: Leave granted in SLP (C) No. 6037 of 2007. 1 2. This appeal raises a short question whether the holding of an Invalidating Board is a condition precedent for discharge of a Junior Commissioned Ocer (JCO) on account of low medical category?

of the appellant from all angles we are satised that there was no irregularity or illegality in the GCM which was fairly and properly conducted by most qualied members holding very high ranks in Army hierarchy. The Division Bench of the High Court in the impugned judgment while setting aside the judgment of the learned Single Judge has relied upon the decision of this Court in Union of India Ors. v. IC 14827 Major A. Hussain [AIR 1998 SC 577] and observed that the High Court cannot re-appreciate the evidence recorded by the authorities and substitute by its own nding replacing the conclusion reached by the competent authority. Though the Division Bench of the High Court has not given detailed reason in its judgment for setting aside the judgment of the learned Single Judge, yet in substance we are of the opinion that the said judgment on merit warrants no interference inasmuch as no illegality, inrmity or error of jurisdiction could be shown before us by the appellant. In our view, there is no merit in the contentions taken by the appellant. For the reasons above stated, there is no merit in this appeal and it is, therefore, dismissed. There will be no order as to costs Union Of India Ors. v. Rajpal Singh on 7 November, 2008 Author: D Jain Bench: C.K. Thakker, D.K. Jain

3. For the determination of the issue aforesaid, it is unnecessary to delve deeply into the facts of the case and only a few material facts would suce. These are: The respondent, a Junior Commissioned Ocer (JCO) was enrolled in the Army on 9th March, 1980. While serving 20 JAT Regiment, on 31st July, 2000, he fell ill; was admitted to the military hospital and was discharged after treatment on 7th November, 2000, but was placed in low medical category S1H1A1P2E1 with eect from 6th November, 2000 for six months. On account of disability, namely, Ischaemic heart disease, again in May, IN THE SUPREME COURT OF 2001, he was continued in low medical category for another six months. INDIA Later, he was brought for review and CIVIL APPELLATE JURISwas then placed in low medical cateDICTION gory (permanent) for a period of two CIVIL APPEAL NO. 6587 OF years from October, 2001. 2008 (Arising out of S.L.P. (C) No. 4. However, before the expiry 6037 of 2007) UNION OF INDIA

559 of the said period of two years, a show cause notice was served on the respondent on 27th February, 2002, stating that since he was placed in permanent low medical category, why he should not be discharged from service as no sheltered appointment was available and his unit was deployed in a eld area. It was also stated that his retention in service was not in public interest. For the sake of ready reference, the notice is extracted below: 20 JAT C/O 99 APO 2062/A/ February, 2002 JC 48893 IX Mb Sub Rajpal Singh 20 JAT C/o 99 APO SHOW CAUSE NOTICE 1. During re-categorization board held at 178 Army Hospital on 24.10.2001, as per AF MSF-15A you have been declared in permanent low medical category. on doctors advice he could perform light duties and expressed his willingness to continue in service. A Release Medical Board was constituted, which recommended his discharge. Accordingly, by an order passed by the Ocer In-charge (OIC) of 20 JAT Regiment, the respondent was discharged from service with eect from 31st August, 2002. 6. Being aggrieved, the respondent challenged his discharge by preferring a writ petition under Article 226 of the Constitution in the High Court of Delhi at New Delhi. Before the High Court the plea of the respondent was that:- (i) as a JCO he could be discharged for low medical category under Army Rule 13 (3) (I) (ii) by the Commanding Ocer after obtaining the opinion of an Invalidating Board and not under Rule 13 (3) (I) (iii) (c) read with Rule 13 (2A) which had been applied in his case and since the opinion of the Invalidating Board had not been obtained, his discharge was contrary to the rules; (ii) as per the mandate of the afore-noted Army Rule, the recommendation of the Invalidating Board is to precede the decision for discharge 4

2. Because the unit is deployed in eld area, there is no sheltered appointment. As a result of the above, and a Release Medical Board canshow cause as to why you should not be discharged from service because not replace the requirement of Invalyour retention in service is not in idating Board; (iii) as per the policy directive issued by the Governpublic interest. ment on 15th March, 2000, Army 3. Please send reply of the show Rule 13 (3) (I) (iii) (c), he could cause notice by 10.3.2002. Sd/- xxxx be discharged only by the Chief of (Rajesh Ahuja) Army Sta and not by OIC, 20 JAT Regiment even though under Rule Colonel Commanding Ocer 13 (2A), such power could be dele5. In his reply to the said nogated to the commanding ocer but tice, the respondent pleaded that

560

Bachan Singh v. Union of India 2008 sonnel at all times is subject to availability of suitable sheltered appointment, commensurate to their medical category, the High Court held that before the opinion is formed as to whether a person is to be retained or not on medical grounds, there has to be an opinion of the Invalidating Board to the eect that further retention in service on medical ground is not possible. The question of suitable sheltered appointment commensurating the medical category will be relevant only thereafter. According to the High Court, there is no rule stipulating that as soon as a person is placed in permanent low medical category, it will be presumed that he is unt for further service. Consequently, the High Court allowed the writ petition; quashed the order of discharge and directed the appellants herein to reinstate the respondent in service.

in the present case no such decision had been taken; (iv) there was no adverse report against him either from his CO or any of the superior ocers regarding performance of his duties and general behaviour and, therefore, his continuation in service could not be said to be against public interest; (v) the OIC (Records) order of his discharge without providing an opportunity of hearing is violative of the principles of natural justice and (vi) a number of similarly situated JCOs had been retained in service and, therefore, he had been discriminated against. 7. The stand of the Government before the High Court was that retention of low medical category personnel is always subject to the availability of suitable sheltered appointment, commensurate with their medical category and since no suitable sheltered appointment was available with the unit due to deployment in eld area, the respondent had to be discharged from service. It was also urged that since the respondents disability had already been assessed by the Release Medical Board, he was discharged under Army Rule 13 (3) (I) (iii) (c) read with Rule 13 (2A) and Army Order 46/80 in public interest.

9. Aggrieved by the said order, the appellants led a Review Petition along with a number of other miscellaneous applications for interim relief. The Review Petition as well as the applications were dismissed on merits as well as on the ground of limitation. The main order dated 7th October, 2005 as well as the order in Review Petition dated 25th January, 8. The High Court, by a well 2007 are under challenge in this apreasoned order, concluded that the peal. discharge of the respondent with10. It was strenuously urged by out holding an Invalidating Board in Mr. Vikas Singh, learned Additional terms of Rule 13 (3) (I) (ii) was il- Solicitor General, that since the relegal. As regards the applicability spondent was in low medical cateof Army Order 46 of 1980, which gory, he was discharged under Army contemplates that the employment of Order 46 of 1980 read with Rule 13 permanent low medical category per- (3) (I) (ii) (c) of the Army Rules,

561 1954 (for short the Rules) whereunder there is no requirement for convening an Invalidating Board. It was submitted that the source of power of discharge of the respondent was Sub-rule (2A) of Rule 13, which creates a special provision for discharge, notwithstanding anything to the contrary contained in Rule 13. It was contended that the meaning of the expression unt for further service as used in clause (ii) of Rule 13 (3) (I) is very clear and unambiguous and, therefore, Invalidating Board as contemplated under the said Rule is meant only for those army personnel who are found medically unt for further service by the Review Medical Board not for those who are placed in low medical category (permanent), as is the case here. In support of the proposition that when the words of the statute are clear, plain and unambiguous then the courts are bound to give eect to that meaning, irrespective of the consequences, reliance is placed on the decisions of this Court in Gurudevdatta Vksss Maryadit amp; Ors. v. State of Maharashtra amp; Ors.1 and Jitender Tyagi v. Delhi Administration amp; Anr.2. Reference is also made to Shailendra Dania amp; Ors. v. S.P. Dubey amp; Ors.3 to contend that a long past practice followed by the department is also a valid factor in seeking a particular interpretation. 11. Per contra, Mr.P.P. Rao, learned senior counsel appearing for the respondent, vehemently contended that in terms of Sub-rule (3) of Rule 13 which species the category of ocers, competent to discharge; the grounds of discharge, and the manner of discharge, a JCO like the respondent, who had been placed in low medical category (permanent) for a period of two years, could be discharged from service only if he had been found medically unt for further service on the recommendation of the Invalidating Board. According to the learned counsel, though in the order of discharge the respondent has been found to be in low medical category (permanent) but in eect, for the purpose of discharge, he has been found medically unt for further service, and, therefore, his case would clearly fall within the ambit of clause (ii) of Rule 13 (3) (I). In support of the proposition that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden, reliance was placed on the decision in Nazir Ahmad v. The King Emperor4, followed in State of Uttar Pradesh v. Singhara Singh amp; Ors.5. Learned counsel argued that the requirement of recommendation of Invalidating Board is a safeguard against arbitrary curtailment of statutory tenure and being a benevolent provision, requires to be liberally construed. The stand of the respondent is that the Rules relating to discharge do not make any dierentiation between categorisation of the personnel on the basis of their health status and as long as a person is discharged on medical grounds as being unt for further service, provision of Rule 13 (3) (I) (ii) would apply, irrespective of categorisation.

562

Bachan Singh v. Union of India 2008 acterised in ve components known as: SHAPE Iphysically t for all purposes. SHAPE II amp; SHAPE IIInot t for certain duties and are required not to undertake strain. SHAPE IVthose who are in hospital for certain ailments and SHAPE Vunt for further service of the Army. 14.It is pointed out that army personnel are put in the aforementioned medical categories i.e. SHAPE on the basis of a periodical Medical Board which is held for an individual after the age of 35 years and thereafter at an interval of every 5 years. If the army personnel is in SHAPE I, he is not required to undergo further Medical Board except annual medical examination. However, the army personnel who is placed in SHAPE II and SHAPE III on the annual medical examination, he is placed in low medical category (temporary) for a period of six months. After six months, he is placed before the Review Medical Board and if at the end of six months, his category remains unchanged, that category is awarded to him on permanent basis and he is placed in low medical category (permanent). After award of low medical category (permanent), the army personnel is placed before the Review Medical Board after every two years. In Review Medical Board, the medical category of the personnel may be changed keeping in view the change in any component of SHAPE. Thus, SHAPE II or SHAPE III may be placed in SHAPE I also and vice versa. It is the say of the appel-

In so far as Army Order 46 of 1980 is concerned, the learned counsel submitted that it cannot override the statutory rule. Placing reliance on the decision of this Court in Capt. Virendra Kumar v. Union of India6, learned counsel urged that the appellants having failed to follow the prescribed statutory procedure, the termination of service of the respondent was illegal and, therefore, the High Court was fully justied in setting aside the same. 12.Having examined the issue in the light of the statutory provisions, we are of the opinion that answer to the question posed has to be in the armative. 13.It needs little emphasis that tness of the personnel of Armed Forces at all levels is of paramount consideration and there cannot be any compromise on that score. It is with this object in view, the Legislature has enacted the Army Act, 1950; the Armed Forces Medical Services Act, 1983 and framed the Rules. Army Orders are also issued from time to time in order to give eect to these statutory provisions in letter and spirit. As per the procedure detailed in the written submissions, led on behalf of the appellants, annual or periodic medical examination of the army personnel is done on certain specic norms. The medical status of an army personnel is xed on the basis of these norms, containing ve components viz. (a) psychology (b) hearing (c) appendarist (d) physical and (e) eye which is collectively known as SHAPE. The medical status SHAPE is again char-

563 lants that the release of certain medical category (permanent) personnel is regulated by Army Order No.46 of 1980, which contemplates that the army personnel, who is placed in low medical category (permanent), is to be retained in service for a minimum 13 period of 15 years (for Sepoy) and 20 years (for JCO) and during this period he is entitled to all promotions as per the rules; the discharge of low medical category is regulated as per the above-mentioned Army Order and before the discharge, the personnel is placed before the Release Medical Board for a mandatory examination before the order of discharge is passed. An army personnel who is categorised as SHAPE V is considered to be not t for further service of the Army and on placing such a personnel in SHAPE V he is mandatorily brought before Invalidating Board in terms of Rule 13 (3), whereas an army personnel who is in SHAPE II or in SHAPE III, is to undergo dierent Medical Boards apart from annual medical examination. The said personnel are not totally unt but at the same time they are not t for all the army duties and, therefore, they are retained for 15 years or 20 years, as the case may be, on the sheltered post mandatorily. 15.Having noticed the basic parameters which are applied for categorisation of the physical status of the army personnel, it will be useful to briey refer to relevant statutory provisions. 16.Chapter IV of the Army Act, 1950 (for short the Act) deals with the conditions of service of the army personnel. Section 18 of the Act provides that every person subject to the Act shall hold oce during the pleasure of the President. Section 19 clothes the Central Government with the power of dismissal or removal from service any person covered under the Act subject to the provisions of the Act and the Rules and Regulations made thereunder. Section 20 provides for dismissal, removal or reduction by the Chief of the Army Sta and by other ocers. Section 22 of the Act provides for retirement, release or discharge from the service by such authority and in such manner as may be prescribed. Sub-Section (xix) of Section 3 of the Act states that prescribed means prescribed by rules made under the Act. Section 191 empowers the Central Government to make rules as regards removal, retirement, release or discharge from the service of persons subject to the Act. 15 Pursuant to and in furtherance of the power conferred on the Central Government under Section 191 of the Act, the Central Government framed the Rules. 17.Rule 13 which is the pivotal provision reads thus: 13. Authorities empowered to authorise discharge. (1) Each of the authorities specied in column 3 of the Table below, shall be the competent authority to discharge from service person subject to the Act specied in column 1 thereof on the grounds specied in column 2. (2) Any power conferred by this rule on any of the

564

Bachan Singh v. Union of India 2008 Sta or on becoming eligible for release under the Regulations. (b) At his own Commanding request on transfer Ocer to the pension establishment (ii) Having been Commanding To be carried out found medically Ocer only on the unt for further recommendation service. of an Invalidating Board. (iii) All other classes (a) In the case If the discharge of discharge. of Junior is not at the Commissioned request of the Ocers Junior granted direct Commissioned commissions Ocer the during the rst competent 12 months authority before service Area/ sanctioning the Divisional discharge shall if Commander the circumstances of the case permit give the Junior Commissioned Ocer concerned an opportunity to show cause against the order of discharge. (b) In the case of JCOs, not covered by (a), serving in any Army or Command the General Ofcer Commanding-in-Chief of that Army or command if not below the rank of Lieutenant General.(c) In any other case the Chief of the Army Sta;

aforesaid authorities shall also be exercisable by any other authority superior to it. [(2A) Where the Central Government or the Chief of the Army Sta decides that any person or class or persons subject to the Act should be discharged from service, either unconditionally or on the fulllment of certain specied conditions, then, notwithstanding anything contained in this rule, the Commanding Ocer shall also be the competent authority to discharge from service such person or any person belonging to such class in accordance with the said decision.] (3) In this table commanding ocer means the ocer commanding the corps or department to which the person to be discharged belongs except that in the case of junior commissioned ocers and warrant ocers of the Special Medical Section of the Army Medical Corps, the commanding ocer means the Director of the Medical Services, Army, and in the case of junior commissioned ocer and warrant ocers of Remounts, Veterinary and Farms, Corps, the Commanding Ocer means the Director Remounts, Veterinary and Farms.

Category Grounds of Competent 18.The afore-extracted Rule 13 Manner of discharge authority to dis(1) clearly enumerates the authorcharge authorise discharge ities competent to discharge from Junior I.(i)(a) On completion service, the specied person; the Commanding Commissioned of the grounds of discharge and the manperiod of Ocer Ocers service or ner of discharge. It is manifest that tenure specied in the Regulations when in terms of this Rule an army for his rank or appointment, are on personnel is discharged on complereaching the age limit whichever is tion of service or tenure or at the earlier, unless trainee on the active request of the person concerned, no list for further specied period with specic manner of discharge is prethe sanction of the Chief of the Army

565 scribed. Naturally, the Regulations or Army Orders will take care of the eld not covered by the Rules. However, for discharge on other grounds, specied in Column (2) of the Table, appended to the Rule, the manner of discharge is clearly laid out. It is plain that a discharge on the ground of having been found medically unt for further service is specically dealt with in Column (I) (ii) of the Table, which stipulates that discharge in such a case is to be carried out only on the recommendation of the Invalidating Board. It is a cardinal principle of interpretation of a Statute that only those cases or situations can be covered under a residual head, which are not covered under a specic head. It is, therefore, clear that only those cases of discharge would fall within the ambit of the residual head, viz. I (iii) which are not covered under the preceding specic heads. In other words, if a JCO is to be discharged from the service on the ground of medically unt for further service;, irrespective of the fact whether he is or was in a low medical category, his order of discharge can be made only on the recommendation of an Invalidating Board. The said rule being clear and unambiguous is capable of only this interpretation and no other. of the Re-categorisation Board held on 24th October, 2001. As noted in the show cause notice, extracted above, the said Board had placed the respondent in permanent low medical category. Be that as it may, the main ground of discharge being medical untness for further service, the appellants were bound to follow the prescribed rule. 20. It is well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Justice Frankfurter in Viteralli v. Saton7, where the learned Judge said:

An executive agency must be rigorously held to the standards by which it professes its action to be judged... Accordingly, if dismissal from employment is based on a dened procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed...This judicially evolved rule of administrative law is now rmly established and, if I may add, rightly so. He that takes the procedural sword shall per19. Having reached the said ish with that sword. conclusion, we feel that the appel21. The afore-extracted obserlants were bound to follow Rule 13 vations were approved and followed (3) (I) (ii), more so having placed in Sukhdev Singh amp; Ors. v. the respondent in low medical cateBhagatram Sardar Singh Raghuvangory (permanent) for a period of two shi amp; Anr.8 and then again in years from October, 2001 he was disDr. Amarjit Singh Ahluwalia v. charged from service on 31st August, The State of Punjab amp; Ors.9 2002, relying on the recommendation wherein, speaking for a three-Judge

566

Bachan Singh v. Union of India 2008 cause 22

Bench, P.N. Bhagwati, J. had observed that though the above view was not based on the equality clause of the United States Constitution and it was evolved as a rule of administrative law but the principle remains the same, namely, that arbitrariness should be eliminated in a State action. (Also see: Ramana Dayaram Shetty v. International Airport Authority of India amp; Ors.10).

notice, seeking to discharge him on the aforementioned grounds. We are convinced that although the discharge is purportedly shown to be also on account of non-availability of a sheltered appointment, the main ground for discharge was undoubtedly on account of permanent low medical category i.e. medical untness. In that view of the matter, the order of discharge of the respon22.In view of the foregoing inter- dent would not fall under the residual pretation of the relevant rule, we are ground, namely, I (iii) in Column 2 of in complete agreement with the High the Table. Court that where a JCO is sought to 24. That takes us to the next be discharged on the ground of med- question whether the case of the reical untness for further service, his spondent for discharge could be dealt case has to be dealt with strictly in with in accordance with Army Order accordance with the procedure con- 46 of 1980, de hors Rule 13, as contemplated in Clause I (ii) in Col- tended by the appellants. umn 2 of the Table appended to 25.Relevant portion of the said Rule 13. The Rule prescribes a parorder reads as follows: AO 46/80 ticular procedure for discharge of a Disposal of Permanent Low Medical JCO on account of medical untness, Category Personnel other than Owhich must be followed and, therecers fore, any order of discharge passed Aim without subjecting him to Invalidating Board would fall foul of the said 1. The aim of this Army Orstatutory rule. der is to lay down implementa23.In the present case, it is ev- tion instructions for the disposal ident from Column 9 of the or- of permanent low medical category der of discharge that respondent has JCOs/OR in terms of Min of Def A/32395/VIII/Org 2 been discharged on account of his Letter No. (MP) (c)/713-S/A/D (AG) dated 10 having been placed in a low medical category (permanent) by the May, 77 as amended vide CorrigenRe-categorisation Board. As noted dum No. A/32395/X/Org 2 (MP) above, he was not discharged imme- (c)/7167/A/D (AG) dated 26 Nov diately and was apparently detailed 79, reproduced as Appendice A and for sheltered appointment. However, B respectively to this order. suddenly within a few months of his Retention evaluation by the Re-categorisation 2. General Principles Board, he was served with a show

567 (a) The employment of permanent low medical category personnel, at all times, is subject to the availability of suitable alternative appointments commensurate with their medical category and also to the proviso that this can be justied in the public interest, and that their retention will not exceed the sanctioned strength of the regiment/corps. When such an appointment is not available or when their retention is either not considered necessary in the interest of the service or it exceeds the sanctioned strength of the regiment/corps, they will be discharged irrespective of the service put in by them. (b) Ordinarily, permanent low medical category personnel will be retained in service till completion of 15 years service in the case of JCOs and 10 years in the case of OR (including NCOs). However, such personnel may continue to be retained in service beyond the above period until they become due for discharge in the normal manner subject to their willingness and the fullment of the stipulation laid in Sub Para (a) above. 3. All personnel retained in service in terms of Para 2 above will, under all circumstances, be discharged on completion of their engagement periods/retiring service limits. For this purpose, NCOs and JCOs will be treated as under:- (a) NCOs will be discharged on completion of the retiring service limits appropriate to ranks as opposed to the extended limits laid down in AO 13/77. However, their retention beyond the contractual period of engagement will be regulated under the provisions of Paras 144 to 147 of Regulations for the Army 1962. (b) JCOs will be discharged on completion of the normal retiring service limits as opposed to the extended limits laid down in AO 13/77. 4. Personnel suering from pulmonary tuberculosis, including those who may be cured of the disease, will be disposed of in accordance with the provisions of Min of Def letter No. 22679/DGAFMS/DG3A/2721/D(ME:- dated 18 Jul 74 (reproduced in AO 150/75), as amended/amplied from time to time. 5. Cases of all permanent low medical category personnel will be reviewed by all concerned accordingly. In the case of those personnel who become due for discharge as per the instructions contained in the preceding paragraphs, immediate action will be taken in the normal manner to carry of their discharge, as expeditiously as possible. 6. This order only lays down the general policy and procedure with regard to the disposal of permanent low medical category personnel. The actual discharge will, however, be carried out in accordance with the provisions of Min of Def letter No. A/32395/VIII/Org 2 (MP) (c)/713-S/a/D (AG) dated 10 May 77, as amended vide Corrigendum No. A/32395/X/Org (MP) (c)/ 7167/A/D (AG) dated 26 Nov 79 (reproduced as Appendices A and B respectively) and this HQ letter No. 8861/AG/PS 2 (c) dated 18 Aug

568

Bachan Singh v. Union of India 2008

64, read with letter No 8861/AG/PS not carry the case of the appellants 2(c) dated 26 Mar/1 Apr 70. any further. It is only an enabling 7. Cases of permanent low med- provision to authorise the commandical category personnel already de- ing ocer to discharge from service cided under the existing provisions, a person or a class of persons in respect whereof a decision has been will not be re-opened. taken by the Central Government or 8. This supersedes all prethe Chief of Army Sta to discharge vious instructions on the subject. him from service either unconditionA/32395/X/Org 2(MP) ally or on the fullment of certain 26. It is manifest that the said specied conditions. The said proArmy Order has been issued for dis- vision is not in any way in conict posal of permanent low medical cat- with the scope of the remaining part egory personnel and merely contem- of Rule 13, so as to give it an overridplates that the employment of per- ing eect, being a non obstante promanent low medical category person- vision. 26 nel at all times, is subject to the 27. For the foregoing reasons, availability of suitable alternative apwe wholly agree with the reasoning pointments commensurate with their and the conclusion of the High Court medical categories and also subject that the discharge of the respondent to the conditions that such a shelwas not in accordance with the pretered appointment can be justied in scribed procedure and was, therefore, the public interest. A plain readillegal. We do not nd any illegality ing of the Army Order shows that it or inrmity in the impugned judgcomes into operation after an opinion ment/order, warranting our interferhas been formed as to whether a parence. The appeal, being devoid of ticular personnel is to be retained in any merit, is dismissed accordingly service or not, if so for what period. with costs. If a person is to be retained in serSLP (C) NOS. 14338-14339 OF vice despite his low medical category 2008 amp; SLP (C) NO.15430 OF for a particular period as stipulated in the Army Order 46 of 1980, the 2008 28.These tagged special leave pequestion of subjecting him to Invalidating Board may not arise. How- titions have been preferred against ever, if a person is to be discharged the orders passed by the High Court, on the ground of medical untness, declining to grant interim relief to the at that stage of his tenure of ser- writ petitioners. Since the main issue vice or extended service within the now stands decided, there is no point meaning of the Army Order, he has in entertaining these petitions. All to be discharged as per the proce- the petitions are dismissed accorddure laid down in Clause I (ii) in ingly without observing anything on Column 2 of the said Table. Simi- merits. It will be open to the High larly, Sub-rule (2A) of Rule 13, heav- Court to now take up the main writ ily relied upon by the appellants does petitions for disposal in accordance

569 with law. J. (C. K. THAKKER) J. (D.K. JAIN) NEW DELHI; NOVEMBER 7, 2008.Union Of India Ors. v. Rajpal Singh on 7 November, 2008 Author: D Jain Bench: C.K. Thakker, D.K. Jain IN THE SUPREME COURT OF INDIA CIVIL DICTION APPELLATE JURISRegiment, on 31st July, 2000, he fell ill; was admitted to the military hospital and was discharged after treatment on 7th November, 2000, but was placed in low medical category S1H1A1P2E1 with eect from 6th November, 2000 for six months. On account of disability, namely, Ischaemic heart disease, again in May, 2001, he was continued in low medical category for another six months. Later, he was brought for review and was then placed in low medical category (permanent) for a period of two years from October, 2001. 2

CIVIL APPEAL NO. 6587 OF 2008 (Arising out of S.L.P. (C) No. 4. However, before the expiry 6037 of 2007) UNION OF INDIA of the said period of two years, a amp; ORS. APPELLANT (S) show cause notice was served on the VERSUS respondent on 27th February, 2002, RAJPAL SINGH RESPON- stating that since he was placed DENT (S) WITH in permanent low medical category, [SLP (C) NOS. 14338-14339 OF why he should not be discharged from service as no sheltered appoint2008 AND ment was available and his unit was SLP (C) NO.15430 OF 2008] deployed in a eld area. It was also JUDGMENT stated that his retention in service D.K. JAIN, J.: was not in public interest. For the Leave granted in SLP (C) No. sake of ready reference, the notice is extracted below: 6037 of 2007. 1 2. This appeal raises a short question whether the holding of an Invalidating Board is a condition precedent for discharge of a Junior Commissioned Ocer (JCO) on account of low medical category? 20 JAT C/O 99 APO 2062/A/ February, 2002 JC 48893 IX

Mb Sub Rajpal Singh 3. For the determination of the issue aforesaid, it is unnecessary to 20 JAT delve deeply into the facts of the case C/o 99 APO and only a few material facts would SHOW CAUSE NOTICE suce. These are: The respondent, a 1. During re-categorization Junior Commissioned Ocer (JCO) was enrolled in the Army on 9th board held at 178 Army Hospital on March, 1980. While serving 20 JAT 24.10.2001, as per AF MSF-15A you

570

Bachan Singh v. Union of India 2008

have been declared in permanent low tained, his discharge was contrary to medical category. the rules; (ii) as per the mandate 2. Because the unit is deployed of the afore-noted Army Rule, the in eld area, there is no sheltered ap- recommendation of the Invalidating pointment. As a result of the above, Board is to precede the decision for show cause as to why you should not discharge 4 be discharged from service because and a Release Medical Board canyour retention in service is not in not replace the requirement of Invalpublic interest. idating Board; (iii) as per the pol3. Please send reply of the show icy directive issued by the Governcause notice by 10.3.2002. Sd/- xxxx ment on 15th March, 2000, Army Rule 13 (3) (I) (iii) (c), he could (Rajesh Ahuja) be discharged only by the Chief of Colonel Commanding Ocer Army Sta and not by OIC, 20 JAT Regiment even though under Rule 3 5. In his reply to the said no- 13 (2A), such power could be deletice, the respondent pleaded that gated to the commanding ocer but on doctors advice he could perform in the present case no such decision light duties and expressed his will- had been taken; (iv) there was no adingness to continue in service. A verse report against him either from Release Medical Board was consti- his CO or any of the superior ocers tuted, which recommended his dis- regarding performance of his duties charge. Accordingly, by an or- and general behaviour and, therefore, der passed by the Ocer In-charge his continuation in service could not (OIC) of 20 JAT Regiment, the re- be said to be against public interest; spondent was discharged from service (v) the OIC (Records) order of his with eect from 31st August, 2002. discharge without providing an opportunity of hearing is violative of 6. Being aggrieved, the responthe principles of natural justice and dent challenged his discharge by pre(vi) a number of similarly situated ferring a writ petition under Article JCOs had been retained in service 226 of the Constitution in the High and, therefore, he had been discrimCourt of Delhi at New Delhi. Beinated against. fore the High Court the plea of the 7. The stand of the Government respondent was that:- (i) as a JCO before the High Court was that rehe could be discharged for low medical category under Army Rule 13 (3) tention of low medical category per(I) (ii) by the Commanding Ocer sonnel is always 5 subject to the availability of suitafter obtaining the opinion of an Inable sheltered appointment, comvalidating Board and not under Rule 13 (3) (I) (iii) (c) read with Rule 13 mensurate with their medical cate(2A) which had been applied in his gory and since no suitable sheltered case and since the opinion of the In- appointment was available with the validating Board had not been ob- unit due to deployment in eld area,

571 the respondent had to be discharged from service. It was also urged that since the respondents disability had already been assessed by the Release Medical Board, he was discharged under Army Rule 13 (3) (I) (iii) (c) read with Rule 13 (2A) and Army Order 46/80 in public interest. along with a number of other miscellaneous applications for interim relief. The Review Petition as well as the applications were dismissed on merits as well as on the ground of limitation. The main order dated 7th October, 2005 as well as the order in Review Petition dated 25th January, 8. The High Court, by a well 2007 are under challenge in this apreasoned order, concluded that the peal. discharge of the respondent with10. It was strenuously urged by out holding an Invalidating Board in Mr. Vikas Singh, learned Additional terms of Rule 13 (3) (I) (ii) was il- Solicitor General, that since the relegal. As regards the applicability spondent was 7 of Army Order 46 of 1980, which in low medical category, he was contemplates that the employment of discharged under Army Order 46 of permanent low medical category per- 1980 read with Rule 13 (3) (I) (ii) (c) sonnel at all times is subject to avail- of the Army Rules, 1954 (for short ability of suitable sheltered appoint- the Rules) whereunder there is no ment, commensurate to their medical requirement for convening an Invalicategory, the High Court held that dating Board. It was submitted that before the opinion is formed as to the source of power of discharge of whether a person is to be retained the respondent was Sub-rule (2A) of or not on medical grounds, there 6 Rule 13, which creates a special prohas to be an opinion of the Invalidating Board to the eect that further retention in service on medical ground is not possible. The question of suitable sheltered appointment commensurating the medical category will be relevant only thereafter. According to the High Court, there is no rule stipulating that as soon as a person is placed in permanent low medical category, it will be presumed that he is unt for further service. Consequently, the High Court allowed the writ petition; quashed the order of discharge and directed the appellants herein to reinstate the respondent in service. vision for discharge, notwithstanding anything to the contrary contained in Rule 13. It was contended that the meaning of the expression unt for further service as used in clause (ii) of Rule 13 (3) (I) is very clear and unambiguous and, therefore, Invalidating Board as contemplated under the said Rule is meant only for those army personnel who are found medically unt for further service by the Review Medical Board not for those who are placed in low medical category (permanent), as is the case here. In support of the proposition that when the words of the statute are clear, plain and unam9. Aggrieved by the said order, biguous then the courts are bound the appellants led a Review Petition to give eect to that meaning, ir-

572

Bachan Singh v. Union of India 2008 and, therefore, his case would clearly fall within the ambit of clause (ii) of Rule 13 (3) (I). In support of the proposition that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden, reliance was placed on the decision in Nazir Ahmad v. The King Emperor4, followed in State of Uttar Pradesh v. Singhara Singh amp; Ors.5. Learned counsel argued that the requirement of recommendation of Invalidating Board is a safeguard against arbitrary curtailment of statutory tenure and being a benevolent provision, requires to be liberally construed. The stand of the respondent is that the Rules relating to discharge do not make any dierentiation between categorisation of the personnel on the basis of their health status and as long as a person is discharged on medical grounds as being unt for further service, provision of Rule 13 (3) (I) (ii) would apply, irrespective of categorisation. In 4 L.R. 63 I.A. 372 5 [1964] 4 SCR 485 10

respective of the consequences, reliance is placed on the decisions of this Court in Gurudevdatta Vksss Maryadit amp; Ors. v. 8 State of Maharashtra amp; Ors.1 and Jitender Tyagi v. Delhi Administration amp; Anr.2. Reference is also made to Shailendra Dania amp; Ors. v. S.P. Dubey amp; Ors.3 to contend that a long past practice followed by the department is also a valid factor in seeking a particular interpretation. 11. Per contra, Mr.P.P. Rao, learned senior counsel appearing for the respondent, vehemently contended that in terms of Sub-rule (3) of Rule 13 which species the category of ocers, competent to discharge; the grounds of discharge, and the manner of discharge, a JCO like the respondent, who had been placed in low medical category (permanent) for a period of two years, could be discharged from service only if he had been found medically unt for further service on the recommendation of the Invalidating Board. According to the learned counsel, though in the order of discharge the respondent has been found to be in low medical category (permanent) but in eect, for the purpose 1 (2001) 4 SCC 534 2

so far as Army Order 46 of 1980 is concerned, the learned counsel submitted that it cannot override the (1989) 4 SCC 653 statutory rule. Placing reliance on 3 the decision of this Court in Capt. (2007) 5 SCC 535 Virendra Kumar v. Union of India6, 9 learned counsel urged that the apof discharge, he has been found pellants having failed to follow the medically unt for further service, prescribed statutory procedure, the

573 termination of service of the respon- required not to undertake strain. dent was illegal and, therefore, the SHAPE IVthose who are in hosHigh Court was fully justied in set- pital for certain ailments and ting aside the same. SHAPE Vunt for further ser12.Having examined the issue in vice of the Army. the light of the statutory provisions, 14.It is pointed out that army we are of the opinion that answer to personnel are put in the aforethe question posed has to be in the mentioned medical categories i.e. armative. SHAPE on the basis of a periodical 13.It needs little emphasis that Medical Board which is held for an tness of the personnel of Armed individual after the age of 35 years Forces at all levels is of paramount and thereafter at an interval of every consideration and there cannot be 5 years. If the army personnel is in any compromise on that score. It is SHAPE I, he is 12 with this object in view, the Legislanot required to undergo further ture has enacted the Army Act, 1950; Medical Board except annual medithe Armed Forces Medical Services cal examination. However, the army Act, 1983 and framed the Rules. personnel who is placed in SHAPE Army Orders are also issued from II and SHAPE III on the annual time to time in order to give eect medical examination, he is placed in to these statutory provisions in letlow medical category (temporary) for ter and spirit. As per the procedure a period of six months. After six 6 months, he is placed before the Re(1981) 1 SCC 485 view Medical Board and if at the end 11 of six months, his category remains detailed in the written submis- unchanged, that category is awarded sions, led on behalf of the ap- to him on permanent basis and he is pellants, annual or periodic medi- placed in low medical category (percal examination of the army per- manent). After award of low medisonnel is done on certain specic cal category (permanent), the army norms. The medical status of an personnel is placed before the Rearmy personnel is xed on the ba- view Medical Board after every two sis of these norms, containing ve years. In Review Medical Board, components viz. (a) psychology (b) the medical category of the personnel hearing (c) appendarist (d) physi- may be changed keeping in view the cal and (e) eye which is collec- change in any component of SHAPE. tively known as SHAPE. The med- Thus, SHAPE II or SHAPE III may ical status SHAPE is again char- be placed in SHAPE I also and vice acterised in ve components known versa. It is the say of the appelas: SHAPE Iphysically t for all lants that the release of certain medpurposes. SHAPE II amp; SHAPE ical category (permanent) personnel IIInot t for certain duties and are is regulated by Army Order No.46

574

Bachan Singh v. Union of India 2008 personnel. Section 18 of the Act provides that every person subject to the Act shall hold oce during the pleasure of the President. Section 19 clothes the Central Government with the power of dismissal or removal from service any person covered under the Act subject to the provisions of the Act and the Rules and Regulations made thereunder. Section 20 provides for dismissal, removal or reduction by the Chief of the Army Sta and by other ocers. Section 22 of the Act provides for retirement, release or discharge from the service by such authority and in such manner as may be prescribed. Sub-Section (xix) of Section 3 of the Act states that prescribed means prescribed by rules made under the Act. Section 191 empowers the Central Government to make rules as regards removal, retirement, release or discharge from the service of persons subject to the Act. 15 Pursuant to and in furtherance of the power conferred on the Central Government under Section 191 of the Act, the Central Government framed the Rules. 17.Rule 13 which is the pivotal provision reads thus: 13. Authorities empowered to authorise discharge. (1) Each of the authorities specied in column 3 of the Table below, shall be the competent authority to discharge from service person subject to the Act specied in column 1 thereof on the grounds specied in column 2. (2) Any power conferred by this rule on any of the aforesaid authorities shall also be exercisable by any other authority su-

of 1980, which contemplates that the army personnel, who is placed in low medical category (permanent), is to be retained in service for a minimum 13 period of 15 years (for Sepoy) and 20 years (for JCO) and during this period he is entitled to all promotions as per the rules; the discharge of low medical category is regulated as per the above-mentioned Army Order and before the discharge, the personnel is placed before the Release Medical Board for a mandatory examination before the order of discharge is passed. An army personnel who is categorised as SHAPE V is considered to be not t for further service of the Army and on placing such a personnel in SHAPE V he is mandatorily brought before Invalidating Board in terms of Rule 13 (3), whereas an army personnel who is in SHAPE II or in SHAPE III, is to undergo dierent Medical Boards apart from annual medical examination. The said personnel are not totally unt but at the same time they are not t for all the army duties and, therefore, they are retained for 15 years or 20 years, as the case may be, on the sheltered post mandatorily. 15.Having noticed the basic parameters which are applied for categorisation of the physical status of the army personnel, 14 it will be useful to briey refer to relevant statutory provisions. 16.Chapter IV of the Army Act, 1950 (for short the Act) deals with the conditions of service of the army

575 perior to it. [(2A) Where the Central Government or the Chief of the Army Sta decides that any person or class or persons subject to the Act should be discharged from service, either unconditionally or on the fulllment of certain specied conditions, then, notwithstanding anything contained in this rule, the Commanding Ocer shall also be the competent authority to discharge from service such person or any person belonging to such class in accordance with the said decision.] (3) In this table commanding ocer means the ocer commanding the corps or department to which the person to be discharged belongs except that in the case of junior commissioned ocers and warrant ocers of the Special Medical Section of the Army Medical Corps, the commanding ocer means the Director of the Medical Services, Army, and in the case of junior commissioned ocer and warrant ocers of Remounts, Veterinary and Farms, Corps, the Commanding Ocer means the Director Remounts, Veterinary and Farms. TABLE appointment, are on reaching the age limit whichever is earlier, unless trainee on the active list for further specied period with the sanction of the Chief of the Army Sta or on becoming eligible for release under the Regulations. (b) At his own Commanding request on transfer Ocer to the pension establishment (ii) Having been Commanding To be carried out found medically Ocer only on the unt for further recommendation service. of an Invalidating Board.

(iii) All other classes (a) In the case If the discharge of discharge. of Category Grounds of Competent Junior is not at the Commissioned reManner of discharge authority to dis- quest of the charge authorise Ocers Junior discharge 1 2 3 4 16 Junior I.(i)(a) On completion Commanding Commissioned of the period of Ocer Ocers service or tenure specied in the Regulations for his rank or granted direct Commissioned commissions Ocer the during the rst competent 12 months authority before service Area/ sanctioning the Divisional discharge shall if Commander the circumstances of

576 the case permit give the Junior Commissioned Ocer concerned an opportunity to show cause against the order of discharge. 17

Bachan Singh v. Union of India 2008 personnel is discharged on completion of service or tenure or at the request of the person concerned, no specic manner of discharge is prescribed. Naturally, the Regulations or Army Orders will take care of the eld not covered by the Rules. However, for discharge on other grounds, specied in Column (2) of the Table, appended to the Rule, the manner of discharge is clearly laid out. It is 18

plain that a discharge on the ground of having been found med(b) In the case ically unt for further service is of JCOs, not specically dealt with in Column (I) covered by (a), (ii) of the Table, which stipulates that discharge in such a case is to be serving in any carried out only on the recommenArmy or dation of the Invalidating Board. It Command the is a cardinal principle of interpretaGeneral Ocer tion of a Statute that only those cases or situations can be covered under a Commandingresidual head, which are not covered in-Chief of that under a specic head. It is, thereArmy or fore, clear that only those cases of discharge would fall within the amcommand if bit of the residual head, viz. I (iii) not below the which are not covered under the prerank of ceding specic heads. In other words, Lieutenant if a JCO is to be discharged from the service on the ground of medGeneral. ically unt for further service, irre(c) In any spective of the fact whether he is or other case the was in a low medical category, his orChief of the der of discharge can be made only on the recommendation of an InvalidatArmy Sta. ing Board. The said rule being clear 18.The afore-extracted Rule 13 and unambiguous is capable of only (1) clearly enumerates the authorthis interpretation and no other. ities competent to discharge from 19 service, the specied person; the grounds of discharge and the man19. Having reached the said ner of discharge. It is manifest that conclusion, we feel that the appelwhen in terms of this Rule an army lants were bound to follow Rule 13

577 (3) (I) (ii), more so having placed the respondent in low medical category (permanent) for a period of two years from October, 2001 he was discharged from service on 31st August, 2002, relying on the recommendation of the Re-categorisation Board held on 24th October, 2001. As noted in the show cause notice, extracted above, the said Board had placed the respondent in permanent low medical category. Be that as it may, the main ground of discharge being medical untness for further service, the appellants were bound to follow the prescribed rule. 20. It is well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Justice Frankfurter in Viteralli v. Saton7, where the learned Judge said: 7 359 U.S. 535 : Law Ed (Second series) 1012 20 An executive agency must be rigorously held to the standards by which it professes its action to be judged... Accordingly, if dismissal from employment is based on a dened procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed...This judicially evolved rule of administrative law is now rmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. 21. The afore-extracted observations were approved and followed in Sukhdev Singh amp; Ors. v. Bhagatram Sardar Singh Raghuvanshi amp; Anr.8 and then again in Dr. Amarjit Singh Ahluwalia v. The State of Punjab amp; Ors.9 wherein, speaking for a three-Judge Bench, P.N. Bhagwati, J. had observed that though the above view was not based on the equality clause of the United States Constitution and it was evolved as a rule of administrative law but the principle remains the same, namely, that arbitrariness should be eliminated in a State action. (Also see: Ramana Dayaram Shetty v. International Airport Authority of India amp; Ors.10). 8 (1975) 1 SCC 421 9 (1975) 3 SCC 503 10 (1979) 3 SCC 489 21 22.In view of the foregoing interpretation of the relevant rule, we are in complete agreement with the High Court that where a JCO is sought to be discharged on the ground of medical untness for further service, his case has to be dealt with strictly in accordance with the procedure contemplated in Clause I (ii) in Column 2 of the Table appended to Rule 13. The Rule prescribes a particular procedure for discharge of a

578

Bachan Singh v. Union of India 2008

JCO on account of medical untness, Disposal of Permanent Low Medical which must be followed and, there- Category Personnel other than Ofore, any order of discharge passed cers without subjecting him to InvalidatAim ing Board would fall foul of the said 1. The aim of this Army Orstatutory rule. der is to lay down implementa23.In the present case, it is ev- tion instructions for the disposal ident from Column 9 of the or- of permanent low medical category der of discharge that respondent has JCOs/OR in terms of Min of Def been discharged on account of his Letter No. A/32395/VIII/Org 2 having been placed in a low med- (MP) (c)/713-S/A/D (AG) dated 10 ical category (permanent) by the May, 77 as amended vide CorrigenRe-categorisation Board. As noted dum No. A/32395/X/Org 2 (MP) above, he was not discharged imme- (c)/7167/A/D (AG) dated 26 Nov diately and was apparently detailed 79, reproduced as Appendice A and for sheltered appointment. However, B respectively to this order. suddenly within a few months of his 23 evaluation by the Re-categorisation Retention Board, he was served with a show cause 22 2. General Principles notice, seeking to discharge him (a) The employment of permaon the aforementioned grounds. We nent low medical category personare convinced that although the dis- nel, at all times, is subject to charge is purportedly shown to be the availability of suitable alteralso on account of non-availability of native appointments commensurate a sheltered appointment, the main with their medical category and also ground for discharge was undoubt- to the proviso that this can be jusedly on account of permanent low tied in the public interest, and medical category i.e. medical unt- that their retention will not exceed ness. In that view of the matter, the sanctioned strength of the regthe order of discharge of the respon- iment/corps. When such an apdent would not fall under the residual pointment is not available or when ground, namely, I (iii) in Column 2 of their retention is either not considthe Table. ered necessary in the interest of the 24. That takes us to the next service or it exceeds the sanctioned question whether the case of the re- strength of the regiment/corps, they spondent for discharge could be dealt will be discharged irrespective of the with in accordance with Army Order service put in by them. 46 of 1980, de hors Rule 13, as con(b) Ordinarily, permanent low tended by the appellants. medical category personnel will be 25.Relevant portion of the said retained in service till completion of order reads as follows: AO 46/80 15 years service in the case of JCOs and 10 years in the case of OR (in-

579 cluding NCOs). However, such personnel may continue to be retained in service beyond the above period until they become due for discharge in the normal manner subject to their willingness and the fullment of the stipulation laid in Sub Para (a) above. 3. All personnel retained in service in terms of Para 2 above will, under all circumstances, be discharged on completion of their engagement periods/retiring service limits. For this purpose, NCOs and JCOs will be treated as under:- (a) NCOs will be discharged on completion of the retiring service limits appropriate to ranks as opposed to the extended limits laid down in AO 13/77. However, their retention beyond the contractual period of engagement will be regulated under the provisions of Paras 144 to 147 of Regulations for the Army 1962. the instructions contained in the preceding paragraphs, immediate action will be 24 taken in the normal manner to carry of their discharge, as expeditiously as possible. 6. This order only lays down the general policy and procedure with regard to the disposal of permanent low medical category personnel. The actual discharge will, however, be carried out in accordance with the provisions of Min of Def letter No. A/32395/VIII/Org 2 (MP) (c)/713-S/a/D (AG) dated 10 May 77, as amended vide Corrigendum No. A/32395/X/Org (MP) (c)/ 7167/A/D (AG) dated 26 Nov 79 (reproduced as Appendices A and B respectively) and this HQ letter No. 8861/AG/PS 2 (c) dated 18 Aug 64, read with letter No 8861/AG/PS 2(c) dated 26 Mar/1 Apr 70.

(b) JCOs will be discharged on 7. Cases of permanent low medcompletion of the normal retiring ser- ical category personnel already device limits as opposed to the ex- cided under the existing provisions, tended limits laid down in AO 13/77. will not be re-opened. 4. Personnel suering from pul8. This supersedes all premonary tuberculosis, including those vious instructions on the subject. who may be cured of the disease, A/32395/X/Org 2(MP) will be disposed of in accordance 26. It is manifest that the said with the provisions of Min of Def Army Order has been issued for disletter No. 22679/DGAFMS/DGposal of permanent low medical cat3A/2721/D(ME:- dated 18 Jul 74 egory personnel and merely contem(reproduced in AO 150/75), as plates that the employment of peramended/amplied from time to manent low medical category persontime. nel at all times, is subject to the 5. Cases of all permanent low availability of suitable alternative apmedical category personnel will be pointments commensurate with their reviewed by all concerned accord- medical categories and also subject ingly. In the case of those personnel to the conditions that such a shelwho become due for discharge as per tered appointment can be justied in

580

Bachan Singh v. Union of India 2008 ing eect, being a non obstante provision. 27. For the foregoing reasons, we wholly agree with the reasoning and the conclusion of the High Court that the discharge of the respondent was not in accordance with the prescribed procedure and was, therefore, illegal. We do not nd any illegality or inrmity in the impugned judgment/order, warranting our interference. The appeal, being devoid of any merit, is dismissed accordingly with costs. SLP (C) NOS. 14338-14339 OF 2008 amp; SLP (C) NO.15430 OF 2008 28.These tagged special leave petitions have been preferred against the orders passed by the High Court, declining to grant interim relief to the writ petitioners. Since the main issue now stands decided, there is no point in entertaining these petitions. All the petitions are dismissed accordingly without observing anything on merits. It will be open to the High Court to now take up the main writ petitions for disposal in accordance with law. J. (C. K. THAKKER) J. (D.K. JAIN) NEW DELHI; NOVEMBER 7, 2008.

the public interest. A plain reading of the Army Order shows that it comes into operation after an opinion has been formed as to whether a particular personnel is to be retained in service or not, if so for what period. If a person is to be retained in service despite his low medical category for a particular period as stipulated in the Army Order 46 of 1980, the question of subjecting him to Invalidating Board may not arise. However, if a person is to be discharged on the ground of medical untness, at that stage of his tenure of service or extended service within the meaning of the Army Order, he has to be discharged as per the procedure laid down in Clause I (ii) in Column 2 of the said Table. Similarly, Sub-rule (2A) of Rule 13, heavily relied upon by the appellants does not carry the case of the appellants any further. It is only an enabling provision to authorise the commanding ocer to discharge from service a person or a class of persons in respect whereof a decision has been taken by the Central Government or the Chief of Army Sta to discharge him from service either unconditionally or on the fullment of certain specied conditions. The said provision is not in any way in conict with the scope of the remaining part of Rule 13, so as to give it an overrid-

Chapter 51

Union of India v. V. N. Singh 2010

Union of India Ors. v. V. N. eral, General Ocer Commanding, Singh [2010] INSC 532 (8 April 2010) 22 Infantry Division, directing the General Court Martial to re-assemble Judgment in open Court at Meerut on June 28, UNION OF INDIA ORS v. V.N. 1997 for reconsidering its ndings on SINGH the rst, second, third, fourth, sixth, (Civil Appeal No (s). 32 of 2003) seventh and eighth charges levelled APRIL 08, 2010 [Harjit Singh Bedi against the respondent and the adeand J.M. Panchal, JJ.] 2010 (4) SCR quacy of the sentence of forfeiture of 454 The Judgment of the Court was 8 years of past service for the purdelivered by J.M. PANCHAL, J. pose of pension awarded to him by 1. The instant appeal is directed the General Court Martial (4) the reagainst Judgment dated March 15, vised order dated July 2, 1997 passed 2002 rendered by the High Court of by General Court Marital adhering Delhi in C.W.P. No. 5451 of 1998 to its earlier ndings but revoking its by which (1) the order dated Octo- earlier order of sentence and imposber 30, 1996 invoking Section 123 of ing sentence of forfeiture of 11 years the Army Act and taking the respon- past service for the purposes of pendent in close custody (2) the nd- sion and severe reprimand subject to ings recorded by General Court Mar- he conrmation by Major General, tial holding the respondent guilty of General Ocer Commanding and (5) some of the charges and imposing the communication dated April 8, punishment of forfeiture of 8 years 2000 addressed by Col. Dy. CDR past service of the respondent for the Mr. P.K.Sharma promulgating the purposes of the pension vide order order of the Conrming Authority dated April 3, 1997 (3) the order by which sentence of forfeiture of 11 dated June 14, 1997 passed by Mr. years past service of the respondent K.K. Verma, the then Major Gen- for the purposes of pension, was con-

582

Union of India v. V. N. Singh 2010 17, 1993 he submitted his report to Brigadier K.S.Bharucha, DDST, who in turn forwarded the report on May 27, 1993 to Major General of Army Supply Corps (ASC for short) Headquarters Western Command, Chandimandir. In that report, the DDST recommended closure of the case. The Major General, ASC, Headquarters Western Command, did not consider the case appropriate for closure. He therefore, forwarded the papers to the Headquarters Western Command. The Headquarters suggested to the Major General by letter dated June 12, 1993 to seek explanation of the respondent. The Major General ASC therefore issued a show-cause notice dated June 18, 1993 to the respondent and sought his explanation on the point of procedural lapses in local purchase. The respondent in his reply dated July 6, 1993 admitted certain procedural lapses on the part of 4 RPD and regretted the same, since such lapses were due to practical problems. Thereafter, the DDST accepted the explanation given by the respondent and again recommended the Headquarters Western Command (ST) Chandigarh to treat the case as closed if deemed t by communication dated July 9, 1993. On September, 9, 1993, the Major General ASC, Headquarters Western Command, endorsed certain remarks in the pen picture of the respondent while writing his ACR. On January 8, 1994 a Technical Court of Inquiry was convened by Brigadier Narsimhan, who had replaced Brigadier

rmed and (6) the communication dated May 15, 2000 by DDA and QMG Mr. G.Vinod for CDR mentioning that the promulgation order carried out on May 15, 2000 was handed over to the respondent and order dated April 17, 2000 promulgating punishment of forfeiture of 8 years past service of the respondent for the purposes of pension and severe reprimand was de-promulgated and cancelled, are set aside, on the ground that trial of the respondent by Court Martial was time barred in view of the provisions of Section 122 (1)(b) of the Army Act, 1950 . 1. The facts emerging from the record of the case are as under:The respondent i.e. Mr. V.N.Singh who was Lt. Col. was posted as Ociating Commandant in 4 Reserved Petroleum Depot (4 RPD for short), Delhi Cantonment. During the inspection of 4RPD, certain irregularities were noticed with regard to local purchase of the Hygiene and Chemicals in the month of May 1993. Therefore, by a letter dated May 5, 1993, the then Lt. Col. P.Oomen, who was Additional Director, Supply and Transport, Delhi area was directed by the then Brigadier Mr. K.S.Bharucha, who was holding the post of Deputy Director, Supply and Transport, Headquarters Delhi area (DDST for short), to carry out preliminary investigation of local purchase of Hygiene and Chemicals as well as other fuel oils and lubricant items by 4 RPD, during the year 1992- 93. Accordingly, preliminary investigation was carried out by Lt. Col. P.Oomen. On May

583 K.S.Bharucha, as DDST. The Lt. Col. Ram Darshan of 226 Company ASC Supplies was asked to act as the Presiding Ocer. The report along with the proceedings of Technical Court of Inquiry were forwarded to the DDST. The DDST recommended to the Major General ASC, Headquarters Western Command, Vide communication dated March 3, 1994 to go for a thorough investigation by Sta Court of Inquiry. Therefore, on May 7, 1994 a Sta Court of Inquiry was convened pursuant to the orders of the General Ocer Commanding-inChief, (GOC-in-C for short) Western Command. Before Sta Court of Inquiry, (S.C.I. for short) witnesses were examined and documents produced. The Sta Court of Inquiry concluded its proceedings and submitted its recommendations on August 31, 1994 blaming the respondent specically along with few other personnel for irregularities, in the local purchase of Hygiene and Chemicals during the period 199293. After examining the recommendations of SCI, the GOC, Delhi area, Major General A.R.K. Reddy, recommended on October 19, 1994, disciplinary action against the respondent. Thereafter, the GOCinC Western Command, Lt. Gen. R.K. Gulati, directed to initiate disciplinary action against the respondent vide communication dated December 3, 1994. On August 23, 1995 the disciplinary action was commenced against the respondent by way of hearing of parties as required by Rule 22 of the Army Rules and a direction for recording of summary of evidence was ordered by the Commanding Ocer i.e. Commander 35 Infantry Brigade under whom the respondent was working at the relevant time. The Commanding Ocer, vide order dated October 30, 1996 invoked the provisions of Section 123 of the Army Act 1950, and took the respondent into close custody as superannuation of the respondent was due on October 31, 1996 and it was apprehended that the respondent would ee the course of justice. The respondent led Criminal Writ Petition 726 of 1996 before the Delhi High Court challenging the order dated October 30, 1996 on the ground that Section 123 of the Army Act was wrongly invoked and trial if any by GCM was barred by limitation under Section 122 of the Army Act. The respondent also prayed to direct the authority to pay compensation at the rate of Rs. 50,000/- for each day of illegal detention. By an order dated December 3, 1996, the High Court stayed the operation of order dated October 30, 1996 and directed the respondent to raise the points mentioned in his Writ Petition, before General Court Martial. On December 11, 1996, the General Ocer Commanding, 22 Infantry Division issued an order convening General Court Martial (GCM for short). Accordingly, GCM was convened. By order dated April 3, 1997, the GCM found the respondent guilty of some charges and not guilty of some other charges. By the said order, the GCM imposed the punishment of forfeiture of 8 years past service for the purpose of pen-

584

Union of India v. V. N. Singh 2010 June 14, 1997 passed by the Competent Authority, was subject matter of challenge, in Writ Petition No. 5451 of 1997 which was pending. On subsequent events being brought to the notice of the Court, the Court was of the opinion that keeping Criminal Writ Petition No. 726 of 1996 pending was of no use and ends of justice would be met if liberty is reserved to amend memorandum of Writ Petition No. 5451 of 1997 and to raise all questions in the said pending Writ Petition. After reserving necessary liberty to the respondent, the Court disposed Criminal Writ Petition No. 726 of 1996 by an order dated August 19, 1998. The order dated July 2, 1997 passed by GCM was considered by the Conrming Authority. The Conrming Authority approved the nding of GCM and imposition of sentence of forfeiture of 11 years past service of the respondent for the purpose of pension. However, the Conrming Authority did not approve/conrm the punishment of severe reprimand imposed by the GCM on the respondent. By communication dated April 8, 2000 the order of the Conrming Authority was promulgated. Thereafter, Vide communication dated May 15, 2000 promulgation of order was handed over to the respondent. Thereafter, the respondent moved an application for amendment of Writ Petition No.5451 of 1997 which was allowed. By way of amendment the respondent challenged validity of orders dated April 3, 1997, July 2, 1997, October 30, 1996, April 8, 2000 and May 15, 2000

sion on the respondent subject to the conrmation of the same by the Major General, General Ocer Commanding. This report of the GCM was sent to the Conrming Authority. The Conrming Authority vide order dated June14, 1997, sent back the report to GCM, under the provisions of Section 160 of the Army Act to revise/reconsider the exoneration of the respondent from some of the charges and decide whether the punishment imposed on the respondent was lenient or not. Thereupon, the respondent led Writ Petition No. 5451 of 1997 challenging aforementioned order dated June 14, 1997 as well as validity of Sections 153, 154 and 160 of the Army Act, 1950. Writ Petition No. 5451 of 1997 was led by the respondent without prejudice to the contentions and averments made in Criminal Writ Petition No. 726 of 1996. In view of the directions from the Conrming Authority, GCM was convened. The GCM submitted its report dated July 2, 1997. The report indicates that the GCM adhered to its earlier nding but passed a fresh order of sentence forfeiting 11 years of past service of the respondent for the purpose of pension as well as the punishment of severe reprimand. A copy of the order dated July 2, 1997 was also forwarded to the respondent. On receipt of the order dated July 2, 1997 the respondent brought to the notice of the Court hearing Criminal Writ Petition No. 726 of 1996, the subsequent developments which had taken place. The Court noticed that order dated

585 over and above claiming compensation. The High Court by Judgment dated March 15, 2002 has allowed the Writ Petition and quashed GCM proceedings as well as the sentence imposed upon the respondent after holding that GCM proceedings were initiated after expiry of the period of limitation prescribed by Section 122(1) (b) of the Army Act, 1950, which has given rise to the instant appeal. 3. This Court has heard Ms. Indira Jaisingh, the Learned Additional Solicitor General for the appellants and Mr. Yatish Mohan, the learned advocate for the respondent at great length and in detail. This Court has also considered the documents forming part of the instant appeal. 4. Ms. Indira Jaisingh, Learned ASG argued that in terms of Section 122(1)(b) of the Army Act, the then Brigadier K.S.Bharucha was not the person aggrieved by the offence and neither the then Brigadier K.S.Bharucha nor Major General BS Suhag were competent to initiate action against the respondent but G.O.C. Delhi area was Disciplinary Authority of the respondent who learnt about the oence having been committed by the respondent for the rst time on receipt of the report of Sta Court of Inquiry submitted on December 3, 1994 and as the G.C.M. commenced the trial on December 17, 1996 the same could not have been treated as time barred under Section 122 (1)(b) of the Army Act. It was asserted that the Technical Court of Inquiry could not come to a denite conclusion about the correct details of purchase of Hygiene and Chemicals nor any denite conclusion could be reached about the persons responsible for the irregularities but the involvement of the respondent came to the light only in August 1994 when the Sta Court of Inquiry submitted its report and therefore the High Court was not justied in quashing the proceedings of G.C.M. on the ground that they were time barred. What was highlighted by the Learned A.S.G. was that in the letter dated May 27, 1993 addressed by Brigadier K.S.Bharucha to MG ASC Headquarter Western Command, there was no mention whatsoever about the respondent being the person who had committed the irregularities except a reference to the fact that certain procedural lapses had taken place on the part of 4RPD and as the said letter was apparently addressed with a view to closing the case in total disregard of the facts and circumstances of the case, the said letter could not have been taken into consideration for the purpose of coming to the conclusion that the proceedings of G.C.M. were time barred. After referring to the A.C.R. of the respondent written by Major General BS Suhag it was argued that what becomes apparent there from is that the respondent had failed to monitor the local purchase of Hygiene and Chemicals but there was no mention that the respondent was himself involved in it and therefore the date on which the A.C.R. was written also could not have been taken into consideration for the purpose of determining

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Union of India v. V. N. Singh 2010 quarters 33 Corps, which indicates that in May 1993 the so-called involvement of the respondent in the irregularities noticed with regard to the local purchase of the Hygiene and Chemicals, had become evident and therefore the proceedings initiated against him should be treated as time barred. The Learned Counsel for the respondent drew the attention of the Court to the communication dated May 5, 1993 addressed by DDST Brigadier K.S.Bharucha on behalf of the Headquarter Delhi Area to Lt. Col. P. Oomen, ADST asking him to conduct the inquiry into the lapses found in local purchase by 4 RPD, pursuant to which report was submitted to Headquarter Delhi Area, wherein it was concluded that irregularities were committed in purchase of Hygiene and Chemicals and therefore the period of limitation would start running from May 27, 1993 when the said report was submitted by Mr. K.S.Bharucha, DDST to Major General, Army Service Corps at Headquarter Western Command. According to the Learned Counsel for the respondent, the DDST issued a notice dated June 18, 1993 calling upon the respondent to explain procedural lapses in local purchase of Hygiene and Chemicals by 4RPD wherein there is reference to instructions of Headquarter Western Command dated June 12, 1993 and therefore the relevant period for the purpose of deciding the question whether the proceedings were time barred or not should be taken to be June 12, 1993. What was asserted was that while writing the ACR of the respondent on Septem-

whether the proceedings of G.C.M. were time barred. The Learned ASG stressed that the period of limitation for the purpose of trial of the respondent commenced on December 3, 1994, when the then GOC-in-Chief Western Command who is competent authority came to know about the commission of oence by the respondent and directed to take disciplinary action against the respondent and as period of limitation of three years in terms of Section 122(1)(b) expired on December 2, 1997 the same could not have been treated as time barred. The Learned Counsel asserted that the Judgment of the High Court questioned in the appeal is not only erroneous on the facts brought on the record of the case but also misinterprets the provisions of the Army Act and therefore the same should be set aside. 5. The Learned Counsel for the respondent argued that after scrutinising the entire documentary evidence the High Court has rightly reached to the conclusion that the trial of the respondent by GCM was time barred and rightly allowed the Writ Petition led by him. It was maintained that during the inspection of 4RPD, certain irregularities were noticed with regard to the local purchase of Hygiene and Chemicals by 4RPD Delhi in the month of May 1993 and the respondent who was Ociating Commandant of said 4 RPD was immediately removed from the said post and was placed as Ociating Commandant of 5033 Army Service Corps battalion functioning directly under Head-

587 ber 6, 1993 the Headquarter Western Command, Chandigarh in the column of brief comments had mentioned that the respondent needed to exercise more discretion and caution while dealing with funds and therefore the said date would also be relevant for the purpose of determining the question whether the proceedings were time barred. It was argued that the order dated October 30, 1996, taking the respondent into close custody under Section 123 of the Army Act, 1950, was passed because the respondent was charged for the oence of procedural lapses in local purchase of Hygiene and Chemicals during his tenure as Ociating Commandant of 4RPD Delhi Area Cantonment and therefore the date on which the respondent was taken into close custody would also be relevant for the purpose of determining the question whether the proceedings initiated against the respondent were time barred. What was asserted was that the respondent was identied as the oender rstly in May 1993 after the report of Lt. Col. P. Oomen and secondly on May 27, 1993 when DDST Headquarter Delhi Area on behalf of GOC had submitted the report of inquiry to Headquarters ASC Western Command at Chandigarh concluding that, there was certainly procedural lapses in local purchase of Hygiene and Chemicals on the part of 4RPD which was under the control of the respondent and therefore the proceedings have been rightly treated as time barred by the High Court. According to the Learned Counsel for the respondent the competent authority of the respondent was his Commanding Ofcer i.e. Brigadier K.S.Bharucha, DDST and as the competent authority had initiated action on October 30, 1996 by detaining the respondent, the proceedings in question should be treated as time barred. The Learned Counsel argued that the person aggrieved within the meaning of Section 122 of the Act, means the person should be answerable to the superiors in chain of command for the act, commission or omission done by his subordinate and as DDST was aggrieved person under whom the respondent was discharging duties, the period of limitation would start running from the date of report of the Court of Inquiry, when identity of the oence and offender was ascertained and therefore the well reasoned judgment of the High Court should be upheld by this Court. 6. Section 122 of the Army Act, 1950 prescribes period of limitation for trial by Court Martial of any person subject to the provisions of the Act for any oence committed by him. The said Section reads as under:- Section 122. Period of limitation for trial (1) Except as provided by sub- section (2), no trial by court-marital of any person subject to this Act for any oence shall be commenced after the expiration of a period of three years and such period shall commence- (a) on the date of the oence; or (b) where the commission of the oence was not known to the person aggrieved by the oence or to the authority competent to initiate action, the rst day

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Union of India v. V. N. Singh 2010 cles and the prosecution be allowed to rake up any skeleton from any cupboard at any time when the accused may have no further materials, oral or documentary, to prove that the skeleton is not from his cupboard. If the device is left open to the prosecution to convene a Court Martial at its leisure and convenience, Section 122 will lose all signicance. Section 122 is a complete Code in itself so far as the period of limitation is concerned for not only it provides in Sub-section (1) the period of limitation for such trials but species in Sub-section (2) thereof, the oences in respect of which the limitation clause would not apply. Since the Section is in absolute terms and no provision has been made under the Act for extension of time, it is obvious that any trial commenced after the period of limitation will be patently illegal.

on which such oence comes to the knowledge of such person or authority, whichever is earlier; or (c) where it is not known by whom the offence was committed, the rst day on which the identity of the oender is known to the person aggrieved by the oence or to the authority competent to initiate action, whichever is earlier. (2) The provisions of sub-section (1) shall not apply to a trial for an offence of desertion or fraudulent enrolment or for any of the oences mentioned in section 37. (3) In the computation of the period of time mentioned in sub-section (1), any time spent by such person as a prisoner of war, or in enemy territory; or in evading arrest after the commission of the oence, shall be excluded. (4) No trial for an oence of desertion other than desertion on active service or of fraudulent enrolment shall be commenced if the person in question, not being an ocer, has subsequently to the commission of the oence, served continuously in an exemplary manner for not less than three years with any portion of the regular Army.

The question of limitation to be determined under Section 122 of the Act is not purely a question of law. It is a mixed question of fact and law and therefore in exercise of Writ Jurisdiction under Article 226 of the Constitution, ordinarily the High Court will not interfere with the ndings of court Martial on question of limitation decided under Section A fair reading of the abovemen- 122 of the Army Act. tioned Section makes it clear that af7. Section 122 of the Army Act ter the expiry of the period of lim- in substance prescribes that no trial itation, the Court Martial will ordi- by Court Martial of any person subnarily have no jurisdiction to try the ject to the provisions of the Act case. The purpose of Section 122 is for any oence shall be commenced that in a civilised society a person after the expiration of a period of should not live, for the rest of his three years. It further explains as natural life, under a Sword of Damo- to when period of three years shall

589 commence. It provides that the period of three years shall commence on the date of the oence or where the commission of the oence was not known to the person aggrieved by the oence or to the authority competent to initiate action, the rst day on which such oence comes to the knowledge of such person or authority whichever is earlier. In view of the provisions of Section 122(1)(b) a question arises as to who is the person aggrieved within the meaning of the said Section. According to the respondent Brigadier K.S.Bharucha was the person aggrieved and the period of three years shall commence from the date when commission of oence by the respondent came to his knowledge on May 17, 1993 when Lt. Col. P. Oomen submitted his report to Mr. Bharucha. The contention of the Union of India is that in terms of Army Act, Mr. K.S.Bharucha was neither the person aggrieved nor authority competent to initiate action and therefore the date on which the Lt. Col. P.Oomen submitted report would not be relevant for the purpose of determining the question whether the trial commenced against the respondent was time barred. The term the person aggrieved by the oence would be attracted to natural persons i.e. human beings who are victims of an offence complained of, such as oences relating to a person or property and not to juristic persons like an organisation as in the present case. The plain and dictionary meaning of the term aggrieved means hurt, angry, upset, wronged, maltreated, persecuted, victimised etc. It is only the natural persons who can be hurt, angry, upset or wronged or maltreated etc. If a Government organisation is treated to be an aggrieved person then the second part of Section 122(1)(b) i.e. when it comes to the knowledge of the competent authority to initiate action will never come into play as the commission of oence will always be in the knowledge of the authority who is part of the organisation and who may not be the authority competent to initiate the action. A meaningful reading of the provisions of Section 122(1)(b) makes it absolutely clear that in the case of Government organisation, it will be the date of knowledge of the authority competent to initiate the action, which will determine the question of limitation. Therefore, the nding of the High Court that Brigadier K.S.Bharucha was an aggrieved person is legally and factually incorrect and unsustainable. Further, neither Brigadier Mr. K.S.Bharucha, nor Major General BS Suhag were competent to initiate action against the respondent because the term competent to initiate action refers to the competency of the authority to initiate or direct disciplinary action against any person subject to the provisions of the Army Act. When an oence or misconduct is alleged to have been committed by a person subject to the Army Act, then the Ocer in chain of command is required to take action for investigation of the charges and trial by court martial as per Section 1 Chapter V of the Army Rules or order Court of Inquiry and sub-

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Union of India v. V. N. Singh 2010 sible for the irregularities by a Sta Court of Inquiry and accordingly the Sta Court of Inquiry was ordered on May 7, 1994 by GOC-in-C Western Command which concluded in its report dated August 31, 1994, mentioning for the rst time the involvement of the respondent in the offence. The GOC Delhi Area i.e. the next Authority in chain of command to the respondent recommended on October 19, 1994 initiation of disciplinary action against the respondent whereas the GOC-in-C Western Command gave directions on December 3, 1994, to initiate disciplinary action against the respondent. Therefore, the date of commencement of the period of limitation for the purpose of GCM of the respondent, commenced on December 3, 1994 when direction was given by GOCin-C Western Command to initiate disciplinary action against the respondent. The plea that the date of submission of the report by Technical Court of Inquiry should be treated as the date from which period of limitation shall commence has no substance. It is relevant to notice that no denite conclusion about the correct details and the persons responsible for the irregularities were mentioned in the report of Technical Court of Inquiry. On the facts and in the circumstances of the case, this Court is of the view that the High Court wrongly concluded that the period of limitation expired on March 4, 1996. It is relevant to notice that the contents of the letter dated May 27, 1993 written by Brigadier K.S.Bharucha to Major General ASC

sequently nalise the Court of Inquiry under Section 2 Chapter VI of the Army Rules. These powers are vested in the ocers in chain of command. Those powers are not vested with sta Ocers. Since the respondent was commanding 4 RPD, his next ocer in command was GOC, Delhi Area and the power to take disciplinary action was vested with him in terms of para 16(a)(i) of the Defence Service Regulations, read with the Command and Control instructions dated January 1, 1991 issued by the Headquarter Western Command. Therefore, Brigadier K.S.Bharucha had only technical control of 4RPD and had therefore recommended to his higher authority to close down the case but himself had not taken a decision to close down the case or to continue the case against the respondent. The power to initiate action in terms of Section 122(1)(b) of the Army Act was only with GOC Delhi Area who is next superior authority in chain of command. The record shows that even the power to convene a Court of Inquiry was available only with GOC Delhi Area and GOC-in-C Westernc ommand since they are the authorities in command of body of troops and the power to convene a Court of Inquiry in terms of Army Rule 177 is vested only with an Ocer in command of body of troops. The facts of the present case establish that the Technical Court of Inquiry was convened by DDST Headquarter Delhi Area on January 8, 1994 which recommended examination of certain essential witnesses for bringing into light the correct details and the persons respon-

591 Headquarter Western Command do not mention at all, the respondent as the person who had committed the irregularities except for a reference that there had been certain procedural lapses on the part of 4RPD. The said letter was addressed by Brigadier K.S.Bharucha apparently with a view to closing the case in total disregard to the facts and the circumstances emerging from the case. This fact has been observed by the GOC-in-C Western Command who while giving direction to initiate administrative action against Major General K.S.Bharucha ordered initiation of departmental inquiry against the respondent. Even the reference to ACR of the respondent written by Major General Suhag only mentions that the respondent had failed to monitor the local purchase of Hygiene and Chemicals but there is no mention therein that the respondent was himself responsible for the irregularities found to have been committed in the purchase of Hygiene and Chemicals. It was only after the detailed investigation by Sta Court of Inquiry that the irregularities committed by the respondent and his role in the purchase of Hygiene and Chemicals came to light. On the facts and in the circumstances of the case this Court nds that the period of limitation for the purpose of trial of the respondent commenced on December 3, 1994 when the GOCin-C Western Command being the competent authority directed disciplinary action against the respondent in terms of Section 122(1)(b) of the Army Act. The period of three years from the direction dated December 3, 1994 would expire on December 2, 1997, whereas the GCM commenced the trial against the respondent on December 17, 1996 which was well within the period of limitation of three years. Therefore the impugned Judgment is legally unsustainable and will have to be set aside. 8. For the foregoing reasons it is held that the GCM commenced trial, against the respondent within the period of limitation as prescribed by Section 122(1)(b) of the Army Act. The impugned Judgment is set aside. Appeal accordingly stands allowed. There shall be no orders as to cost. Back Buzz

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Union of India v. V. N. Singh 2010

Chapter 52

Arun Raj v. Union Of India 2010

Arun Raj v. Union Of India year 1983 and 1 Ors. on 13 May, 2010 Author: in the year 1998 he was workH Dattu Bench: V.S. Sirpurkar, ing as Ex-Signalman (Lance Nayak) Mukundakam Sharma of 787 (Independent) Air Defence IN THE SUPREME COURT OF Brigade Signal Company. On 22.3.1998, one Mr. S.S.B Rao (PWINDIA CRIMINAL APPELLATE JU- 4) was the Section In-Charge of Operator Section. At about 1 PM, Mr. RISDICTION Rao returned from lunch and the apCRIMINAL APPEAL NO.1123 pellant reported to him that HavilOF 2008 dar R.C Tiwari (deceased) and HavArun Raj ..........Appellant Ver- ildar Inderpal (PW-3) abused him sus by using the word Gandu. On Mr. Union of India amp; Ors. Rao making an inquiry into the same, they replied in the negative, despite ........Respondents JUDGMENT the appellant making repeated asH.L. Dattu, J. sertion that they insulted him using 1) This appeal by special leave is the said word. The appellant also limited to a particular question only, brought to the information of Mr. namely, correctness of the conviction Rao that in the previous night there of the appellant Arun Raj for an ofwas a heated discussion between the fence under Section 302 of Indian Peappellant and the deceased and Innal Code and the propriety of the derpal, and the matter was reported sentence passed thereunder by the to the superior ocer. Paulose (PWPresiding Ocer of General Court 1), after having his lunch, returned Martial under the Indian Army Act. to the barrack from the rank mess The short facts are these - The apand he was relaxing in the cot. At pellant joined the Indian Army in the

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Arun Raj v. Union Of India 2010 deceased on 22.3.1998. On the appellant pleading not guilty, the General Court Martial proceeded to record the evidence of witnesses. The prosecution examined 18 3 witnesses. The General Court Martial after appreciating the facts and the evidence on record, found the appellant guilty of the oence for which he was charged and after hearing his submission with regard to the quantum of sentence, sentenced the appellant to undergo 7 years of rigorous imprisonment and he was also dismissed from service for committing the oence of murder punishable under Section 69 of the Army Act read with Section 302 of IPC. However upon revision, the Conrming Authority by an order dated 15.12.1998 held that the sentence awarded by the General Court Martial after nding the appellant guilty of murder under Section 69 of the Army Act read with Section 302 of IPC, was not justiciable and further observed that once the appellant was held guilty under the abovementioned Sections, he could be either sentenced to life imprisonment and ne or sentenced to death. Accordingly, the General Court Martial by an order dated 15.1.1999, revised the sentence and sentenced the appellant to imprisonment for life and dismissal from service, which was subsequently conrmed by the Conrming Authority. Being aggrieved by this order, the appellant led a petition before the Chief of Army Sta under Section 164 of the Army Act, which 4 was rejected. The appellant be-

this point of time, he saw the appellant coming towards the door. He was wearing a half T-shirt and lungi. The cot of the deceased was near the door and he was sleeping on it. The appellant took out a knife which was hidden in the lungi and stabbed the deceased on the right side of the chest. On witnessing the incident, PW-1 was shocked and shouted to the appellant as to why he did it. On hearing the shout of PW-1, people came in and gathered 2 immediately. The appellant was separated by the crowd and the deceased was sent to the hospital where he nally succumbed to the injury. Major Prabal Datta (PW-9) testied that there was no external injury on the body of the deceased except the stab injury caused by a knife. 2) An FIR was lodged at the Dehu Road Police Station vide CR26 of 1998 under Section 302 of Indian Penal Code. Thereafter, investigation commenced, during the course of which the body of the deceased was sent for post mortem and an inquest Panchnama was also prepared. On completion of the investigation, the charge- sheet was prepared against the appellant/accused and forwarded to the Judicial Magistrate 1st Class, Vadgaon Maval. In the meantime, since the appellant belonged to the armed forces, court martial proceedings were initiated under the provisions of the Army Act. Charges were framed against the appellant under Section 302 read with Section 69 of the Army Act for committing civil oence, i.e., knowingly causing the death of the

595 ing aggrieved by the same led a writ the decision on which reliance was petition before the Bombay High placed by learned counsel for the acCourt. cused observed, that there was no 3) The learned Counsel for the sudden quarrel and the murder was appellant raised two contentions be- not caused on spur of moment and fore the High Court of Judicature no sucient provocation is found for at Bombay in the Writ proceedings. the oence committed by appellant Firstly, it was submitted that the to fall under section 304 Part II of Incharge framed against the appellant dian Penal Code. As the oence was was vague, as a result of which, en- found to be committed with enough tire Court Martial proceedings was time to mediate on the action to vitiated. The second submission was commit the murder of deceased, apthat the intervention of High Court pellant was said to have intention was required as the facts and circum- to cause the death of the deceased. stances of the case does not justify Thus, the High Court found the the punishment of life imprisonment charge under Section 302 of Indian as the oence revealed from the ma- Penal Code proved and the proceterial evidence is only punishable un- dure under Army Act followed withder Section 304 Part II and not under out any infringement of principles Section 302 of Indian Penal Code. As of natural justice and, accordingly, regards the rst contention, the High the Writ Petition was dismissed vide Court has observed that as the ap- judgment dated 25.8.2005. pellant was informed of all the allegations put forth against him at the time of Court Martial proceedings, the charge framed against the appellant cannot be said to be vague. Considering the second contention, the High Court found the testimony of PW-1 Paulose who is the eyewitness and PW-3 Haveldar Indrpal to whom the dying declaration was given by the deceased, is reliable and, hence, observed that there is no 5 doubt about the fact that appellant caused the death of the deceased by stabbing him with a knife. Therefore, the submission that there was no intention on the part of the appellant to kill the deceased as only one stab injury was found on deceased, was rejected by the Court. The High Court while considering 4) We now come to the particular question to which this appeal is limited, namely, propriety of the conviction and sentence passed 6 on the appellant for the oence under Section 302 IPC read with Section 69 of the Army Act, 1950. Mr.K.K.Mani, the learned counsel for the appellant contends, that, the death of the deceased was caused due to grave and sudden provocation and, therefore, oence would fall under Exception I of Section 300 I.P.C. Further, it is contended that the oence committed by the appellant is liable for punishment under Section 304 Part II of the I.P.C., as there is absence of any intention on part of the appellant to cause death. Mr.Mani also cited few decisions of this Court to support his submission

596

Arun Raj v. Union Of India 2010

that the single stab injury caused by the appellant to the deceased only amounts to oence punishable under Section 304 Part II and not under Section 302 of I.P.C. Per contra, the learned counsel for the Union of India submitted that, the ndings of the Court Martial and the punishment upheld by the High Court need not be interfered by this Court as the facts and the evidence on record are enough to prove that the oence committed by the appellant falls under Section 302 of I.P.C. It is also contended that the scope of judicial review is for limited purpose and that cannot be used to re-appreciate the evidence recorded in Court Martial proceedings to arrive at a dierent conclusion. 7

excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- 2ndly If it is done with the intention of causing such bodily injury as the oender knows to be likely to cause the death of the person to whom the harm is caused, or- 3rdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inicted is sucient in the ordinary course of nature to cause death, or- 4thly If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the 5) We now consider the rst con- risk of causing death or such injury tention of the learned counsel for the as aforesaid. Exception I-When culpable appellant. It is not in dispute that the cause of death of deceased is due homicide is not murder- Culpable to the stabbing by a knife by appel- homicide is not murder if the oflant. However, it is argued on be- fender, whilst deprived of the power half of the appellant that the ap- of self-control by grave and sudden pellant caused the said injury be- provocation, causes the death of the cause on 23.03.1998 deceased Havil- person who gave the provocation or dar R.C.Tiwari and Havildar Inder- causes the death of any other person pal (PW-3) abused the appellant and by mistake or accident. he was provoked to punish the deThe above exception is subject to ceased. Thus, the stab injury caused the following provisos:to the deceased was a result of such First-That the provocations not grave and sudden provocation and sought or voluntarily provoked by the thus the incident took place on spur oender as an excuse for killing or doof moment. Therefore, the case of ing harm to any person. the appellant falls under Exception I Secondly-That the provocation is of Section 300 of I.P.C. not given by anything done in obediAt this state itself, it is relevant ence to the law, or by a public servant to notice Section 300 of I.P.C.: Secin the lawful exercise of the powers of tion 300. Murder such public servant. Except in the cases hereinafter

597 Thirdly-That the provocations not given by anything done in the lawful exercise of the right of private defence. Explanation-Whether the provocation was grave and sudden enough to prevent the oence from amounting to murder is a question of fact. 6) The aforesaid Section provides ve exceptions wherein the culpable homicide would not amount to murder. Under Exception I, an injury resulting into death of the person would not be considered as murder when the oender has lost his selfcontrol due to the grave and sudden provocation. It is also important to mention at this stage that the provision itself makes it clear by the Explanation provided, that what would constitute grave and sudden provocation, which would be enough to prevent the oence from amounting to murder, is a question of fact. Provocation is an external stimulus which can result into to loss of self-control. Such provocation and the resulting reaction need to be measured from the surrounding circumstances. Here the provocation must be such as will upset not merely a hasty, hot tempered and hypersensitive person but also a person with clam nature and ordinary sense. What is sought by the law by creating the exception is that to take into consideration situations wherein a person with normal behavior reacting to the given incidence of provocation. Thus, the protection extended by the exception is to the normal person acting normally in the given situation. provocation was stated by Viscount Simon in Mancini v. Director of Public Prosecution, (1942) A.C. 200 at p.206: it is not all provocation that will reduce the crime of murder to manslaughter. Provocation to have that result, must be such as temporarily deprive the person provoked of the power of self-control as result of which he commits the unlawful act which caused death. The test to be applicable is that of the eect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex v. Lesbini, (1914) 3 K.B.1116 so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led ordinary person to act as he did. In applying the test, it is of particular importance to (a) consider whether a sucient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was eected, for to retort, in the heat of passion induced by provocation, by a simple blow, is very dierent thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the oence is to be reduced to manslaughter.

8) It is, therefore, important in the case at hand to consider the reasonable relationship of the action of appellant of stabbing the deceased, to the provocation by the deceased in the form of abusing the appellant. At 7) The scope of the doctrine of this stage, it would be useful to recall

598

Arun Raj v. Union Of India 2010 that the knife which was completely made of iron and had a sharp edge was hidden at the waistline of the lungi of the appellant. Major Prabal Datta, PW-9 was the Regimental Medical Ocer at 19 AD Regt. In his cross examination, he has stated, that there was not much time lag between the occurrence of the incident and the deceased being rushed to the hospital. The facts like that there was time lag of 40- 45 minute after appellant had come from the ofce of Higher Ocer after complaining and was present with the appellant in the same barrack without any conversation between them, that he had got the knife which was sharp enough to have the knowledge that it might cause death of a human being when stabbed, that the knife was hidden and removed by appellant only when he was about to stab the deceased, that the appellant stabbed the deceased on the chest which is a fragile portion of the body and can cause death when stabbed by sharp weapon and also that the eyewitness was unable to link the abusing and the altercation of the deceased and appellant to the action of stabbing, rules out the possibility of the offence being committed due to grave and sudden provocation. The appellant clearly had time to deliberate and plan out the death of Havildar R C Tiwari (the deceased). We, therefore, conclude that the rst contention of the learned counsel for the appellant has no merit and the appellant cannot get benet of the Exception I to Section 300 of I.P.C. 9) We now turn to second point

the relevant chain of events in brief to judge whether there was sucient provocation and the criterion under the provision are satised to bring the oence under the Exception I. As is already stated, on the previous night of the incidence, there was altercation between the appellant and deceased, as the deceased had abused the appellant. On 23.3.1998 at about 1.00 PM, the deceased complained to the Higher Ocer-Mr.S.S.B.Rao about the said incident. Thereafter, he returned to his barrack and was present there before the happening of the incident. In the testimony, (PW-1) Paulose states that he was also present in the same barrack after he came back from Other Rank Mess at 2.15 PM and was relaxing on his cot which was in the corner of the same barrack. At that time he saw the appellant coming towards the door on which he thought that the appellant was coming for either urinal or to collect his clothes spread out in sun. The appellant who was wearing a half T-shirt and lungi came near the cot of the deceased which was at the door and took out a knife from the lungi and stabbed on the right side of chest of the deceased when he was asleep. PW-1 agreed at the time of examination of witness, that he was shocked to see the appellant stab the deceased and he also shouted at the appellant asking him what was he doing. Thus, PW1 was unable to relate the actions of appellant to the abuses by deceased or the altercation which happened the previous night. Further, it is clear from the testimony of the PW1 and the evidence collected (ME-1),

599 urged on behalf of the appellant. It is contended by learned counsel that there was no intention on the part of the appellant to cause the death of the deceased and, hence, Section 304 Part II of the IPC which deals with culpable homicide not amounting to murder, will be attracted. Alternatively, it is contended that the appellant dealt one single blow on the deceased, and hence, intention to cause death cannot be attributed to the appellant and, hence, the act of the appellant will not fall under Section 302 of IPC but under Section 304 Part II. In light of these contentions, it is necessary to look into the wordings of the relevant provision. Section 304 of IPC reads:Section 304. Punishment for culpable homicide not amounting to murder Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life ,or imprisonment of either description for a term which may extend to ten years, and shall also be liable to ne, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, Or with imprisonment of either description for a term which may extend to ten years, or with ne, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 10) Essentially the ingredients for bringing an act under Part II of the Section are:(i) act is done with the knowledge that it is likely to cause death, (ii) there is no intention to cause death, or to cause such bodily injury as is likely to cause death. 11) The rst ingredient is easily solved by referring to the weapon used by the appellant to strike a knife blow to the appellant. The appellant in this instance has used a kitchen knife. A kitchen knife with sharp edges is a dangerous weapon and it is very obvious that the appellant was aware that the use of such a weapon can cause death or serious bodily injury that is likely to cause death. As far as the second ingredient is concerned, the appellants learned counsel contended that the fact that there was one single blow struck, proves that there was no intention to cause death. In support of the plea, reliance is placed on the decisions of this court in the case of Bhera v. State of Rajasthan, [(2000) 10 SCC 225], Kunhayippu v. State of Kerala, [(2000) 10 SCC 307], Masumsha Hasansha Musalman v. State of Maharashtra, [(2000) 3 SCC 557], Guljar Hussain v. State of U.P., [1993 Supp (1) SCC 554], K. Ramakrishnan Unnithan v. State of Kerala, [(1999) 3 SCC 309], Pappu v. State of M.P., [(2006) 7 SCC 391], Muthu v. State by Inspector of Police, Tamil Nadu, [(2007) 12 Scale 795]. A brief perusal of all these cases would reveal that in all these cases there was a sudden and instantaneous altercation which led to the accused inicting a single blow to the deceased with

600

Arun Raj v. Union Of India 2010 nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the respondent caused the death of the deceased with an intention of causing death or not. In the instant case, it is true that the respondent had dealt one single blow with a sword which is a sharp-edged weapon measuring about 3 ft. in length on a vital part of body, namely, the neck. This act of the respondent though solitary in number had severed sternoclinoid muscle, external jugular vein, internal jugular vein and common carotid artery completely leading to almost instantaneous death. Any reasonable person with any stretch of imagination can come to the conclusion that such injury on such a vital part of the body with a sharp-edged weapon would cause death. Such an injury, in our opinion, not only exhibits the intention of the attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim. The reasoning of the High Court as to the intention and knowledge of the respondent in attacking and causing death of the victim, therefore, is wholly erroneous and cannot be sustained. 12) In the case of Virsa Singh v. State of Punjab, [AIR 1958 SC 465], this court while referring to intention to cause death laid down:27. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the oence is

a sharp weapon. Hence, there has been conviction under Section 304 Part II as delivering a single blow with a sharp weapon in a sudden ght would not point towards intention to cause death. These cases are clearly distinguishable from the case at hand, purely on the basis of facts. In the present case, there has been no sudden altercation which ensued between the appellant and the deceased in the present case. The deceased called the appellant gandu following which there was a heated exchange of words between the two, the day before the murder. The next day, however, the appellant concealed a kitchen knife in his lungi and went towards the cot of the deceased and struck the deceased a blow on the right side of the chest, while the deceased was sleeping. The fact that the appellant waited till the next day, went on to procure a deadly weapon like a kitchen knife and then proceeded to strike a blow on the chest of the appellant when he was sleeping, points unerringly towards due deliberation on the part of the appellant to avenge his humiliation at the hands of the appellant. The nature of weapon used and the part of the body where the blow was struck, which was a vital part of the body helps in proving beyond reasonable doubt, the intention of the appellant to cause the death of the deceased. Once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows. This court in the case of State of Rajasthan v. Dhool Singh, [(2004) 12 SCC 546] while dismissing a similar contention has stated that, It is the

601 murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sucient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sucient in the ordinary course of nature to cause death. No one has a licence to run around inicting injuries that are sucient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional. This court further observed:33. It is true that in a given case the enquiry may be linked up with the seriousness of the injury,. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a supercial; scratch and that by accident this victim stumbled and fell on the sword or spear that was used, then of course the oence is not murder. But that is not because the prisoner did not intend the injury that he intended to inict to be as serious as it turned out to be 19 but because he did not intend to inict the injury in question at all. His intention in such a case would be to inict a totally dierent injury. The dierence is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guesswork and fanciful conjecture. 13) In Anil v. State of Haryana, [(2007) 10 SCC 274], while referring to Virsa Singh (supra) this court laid down:- 19. In Thangaiya v. State of T.N., relying upon a celebrated decision of this Court in Virsa Singh v. State of Punjab 1958 CriLJ 818 , the Division Bench observed: 17. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of Clause thirdly is now ingrained in our legal system and has become part of the rule of law. Under Clause thirdly of Section 300 IPC. culpable homicide is murder, if both the following conditions are satised: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inicted is sucient in the ordinary course of nature to cause death. It must be proved that there was an intention to inict that particular bodily injury which, in the ordinary course of nature, was sucient to, cause death viz. that

602

Arun Raj v. Union Of India 2010

the injury found to be present was Further PW-1, in his cross- examithe injury that was intended to be nation asserts that the deceased held inicted. his hand out after he was stabbed in 18. Thus, according to the rule the chest. It is very likely that this laid down in Virsa Singh case even action on the part of the deceased if the intention of the appellant was prevented the appellant from stablimited to the iniction of a bodily in- bing him multiple number of times. jury sucient to cause death in the The argument might deserve some ordinary course of nature, and did merit in case there is a sudden alnot extend to the intention of causing tercation which ensues in the heat of death, the oence would be murder. the moment and there is no deliberIllustration (c) appended to Section ate planning. In the present case, as stated above there was due delibera300 clearly brings out this point. tion on the part of the appellant and 20 he assaulted the deceased a day af14) In the aforesaid decision, this ter he misbehaved with him. Hence, Court held that there is no xed rule the contention of the learned counsel that whenever a single blow is in- that the appellant had no intention icted Section 302 would not be at- to cause death of the deceased has no tracted. merit and, accordingly, it is rejected. 15) It is clear from the above line 16) We, accordingly, hold that of cases, that it is necessary to prove the conviction of the appellant for rst that there was an intention of the oence under Section 302 of Incausing bodily injury; and that the dian Penal Code, is not bad in law. injury intended to be inicted is su- In our opinion, the appeal has no cient in the ordinary course of nature merit and, accordingly, it is disto cause death. From the evidence on missed. record, it is very clear that the appelJ. [Dr. MUKUNDAKAM lant intended to cause death. In light SHARMA] J. [H.L. DATTU] of this nding, the evidence on record New Delhi, makes it clear that Section 304 Part II of the IPC will not be attracted. May 13, 2010.

Chapter 53

Charanjit Lamba v. Commndng.Ocer,Southern Command 2010

Charanjit Lamba v. Comm- No.489 of 1997 led by the appellant ndng.Ocer,Southern Command has been dismissed and the order of Ors. on 6 July, 2010 dismissal from service on proved misconduct armed. The factual matrix Author: T Thakur giving rise to the disciplinary proBench: Dalveer Bhandari, T.S. ceedings against the appellant and Thakur his eventual dismissal from service IN THE SUPREME COURT OF has been set out by the High Court INDIA in the order under appeal. We need CRIMINAL APPELLATE JU- not, therefore, re-count the same over again. Suce it to say that the RISDICITION CRIMINAL APPEAL NO.1027 appellant who at the relevant time was serving as a Major in the Indian OF 2002 Army was consequent upon a ndCharanjit Lamba ...Appellant ing recorded against him in a Court Versus of Inquiry brought up for trial before Commanding Ocer, Southern a General Court Martial (GCM for ...Respondents Command amp; Ors. short) on the following two distinct charges: FIRST CHARGE ARMY JUDGMENT ACT SECTION 52(f). T.S. THAKUR, J. 1. This appeal by special leave arises out of an order dated 15th September, 1998 passed by the High Court of judicature at Bombay whereby Criminal Writ Petition SUCH AN OFFENCE AS IS MENTIONED IN CLAUSE (f) OF SECTION 52 OF THE ARMY ACT, WITH INTENT TO CAUSE WRONGFUL LOSS TO A PERSON

Charanjit Lamba v. Commndng.Ocer,Southern Command 2010 604 In that he, at eld on 30th Jul 92, with intent to cause wrongful gain to himself, improperly claimed Rs.16,589.30 (Rs. Sixteen thousand ve hundred eighty nine and paise thirty only) from CDA (Q) Pune on account of moving his household luggage and car to Chandigarh, well knowing that he was legally not entitled to the same. SECOND CHARGE, ACT SECTION 45 ARMY by the appellant in his defence was also found by the GCM to be unreliable on account of material contradictions in the deposition of the defence witnesses. The GCM on proof of the said charge sentenced him to forfeiture of ten years past service for purposes of pension. In so far as the second charge, viz. nonpayment of electricity bill was concerned, the GCM declared the appellant not guilty. In its opinion the appellant had never refused to pay the electricity bill which was at any rate a matter between him and the Maharashtra State Electricity Board. The GCM took the view that the default of the petitioner could not be termed as conduct unbecoming of an ocial subject to the Army Act to call for any penal action. 3. Aggrieved by the ndings and the sentence awarded to him by the GCM the petitioner led an appeal before the General Ocer Commanding, Maharashtra and Gujarat Area (hereinafter referred to as the GOC M amp; G Area) who happened to be the conrming authority also. The GOC M amp; G Area, however, took the view that the sentence awarded to the appellant on the rst charge was lenient inasmuch as the oence committed by the appellant was serious and involved moral turpitude. It also noted that the appellant had past convictions to his credit which ought to be kept in view. The nding recorded by the GCM in regard to the second charge framed against the appellant was also found to be untenable by GOC M amp; G Area as accord-

BEING AN OFFICER BEHAVING IN A MANNER UNBECOMING HIS POSITION AND THE CHARACTER EXPECTED OF HIM In that he, at Pune, between 03 Sep 92 and Jun 93, improperly failed to pay the nal electricity bill dated 03 Sep 92 amounting to Rs.8132.35 (Rs. eight thousand one hundred thirty two and paise thirty ve only) to Maharashtra State Electricity Board (MSEB) in respect of H No.12-B Kohun Road, Pune-1 which was allotted to him. 2. Evidence adduced before the GCM eventually led to the appellant being held guilty for improperly claiming Rs.16,589.30 on account of transfer of his household luggage and car to Chandigarh. The GCM found that the family of the appellant had continued to occupy government accommodation at Pune even after his posting to the eld area and that the agency who is alleged to have transported the luggage and the car of the appellant did not exist at the given address. The evidence given

605 ing to him the conduct of the appellant fell within the ambit of Section 4E of the Army Act which made his behaviour unbecoming of an ocer. The GOC M amp; G Area accordingly remanded the matter back to the GCM for re-consideration on the question of sentence to be awarded to the appellant on the rst charge and whether the appellant could be held guilty on the second charge. The order made it clear that the GOC M amp; G Area did not intend to interfere with the discretion vested in the GCM which was free to decide the matter in the manner it liked. 4. The GCM accordingly assembled again to consider the matter and while sticking to the reasons given by it in regard to the rst charge found the second charge also to have been proved. The GCM on that basis revoked the earlier sentence and sentenced the appellant to dismissal from service which order was after conrmation by the competent authority assailed by the appellant before the High Court at Bombay in Criminal Writ Petition No.489 of 1997 as already noticed earlier. 5. Before the High Court several contentions appear to have been urged on behalf of the appellant which were examined and repelled by the High Court while dismissing the writ petition in terms of the order impugned in this appeal. The correctness of the view taken by the High Court on the grounds urged before it has not been assailed before us except in so far as the High Court has held that the punishment of dismissal imposed upon the appellant was in no way disproportionate to the gravity of the oence committed by him. 6. Mr. P.S. Patwalia, learned senior counsel appearing for the appellant argued that the order of dismissal of the appellant from service was in the facts and circumstances of the case disproportionate to the gravity of the charges framed against the appellant. He relied upon the decisions of this Court to which we shall presently refer to submit that judicial review of the order of dismissal would justify intervention by a Writ Court in cases where punishment was disproportionate to the nature of misconduct proved against the delinquent. The present was according to him one such a case that called for the Courts intervention to either reduce the punishment or to direct the same to be reduced by the competent authority. 7. In Coimbatore District Central Coop. Bank v. Employees Assn. (2007) 4 SCC 669 this Court declared that the doctrine of proportionality has not only arrived in our legal system but has come to stay. With the rapid growth of the administrative law and the need to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by reference to which the action of such authorities can be judged. If any action taken by an authority is contrary to law, improper, irrational or otherwise unreasonable, a court competent to do so can interfere with the same while exercising its power of judicial review. 8. This Court referred with ap-

Charanjit Lamba v. Commndng.Ocer,Southern Command 2010 606 proval to the decision of the House of Lords in Council of Civil Service Union v. Minister for Civil Service (1985 AC 374) where Lord Diplock summed up the grounds on which administrative action was open to judicial review by a Writ Court. Lord Diplocks oft-quoted passage dealing with the scope of judicial review of an administrative action may be gainfully extracted at this stage: Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the ground on which administrative action is subject to control by judicial review. The rst ground I would call illegality, the second irrationality and the third procedural impropriety. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality. 9. The doctrine of proportionality which Lord Diplock saw as a future possibility is now a well recognized ground on which a Writ Court can interfere with the order of punishment imposed upon an employee if the same is so outrageously disproportionate to the nature of misconduct that it shocks conscience of the Court. We may at this stage briey refer to the decisions of this Court which have over the years applied the doctrine of proportionality to specic fact situations. Himachal Pradesh (1983) 2 SCC 442 this Court held that if the penalty imposed is disproportionate to the gravity of the misconduct, it would be violative of Article 14 of the Constitution. 11. In Ranjit Thakur v. Union of India amp; Ors. (1987) 4 SCC 611, this Court was dealing with a case where the petitioner had made a representation about the maltreatment given to him directly to the higher ocers. He was sentenced to rigorous imprisonment for one year for that oence. While serving the sentence imposed upon him he declined to eat food. The summary court martial assembled the next day sentenced him to undergo imprisonment for one more year and dismissal from service. This Court held that the punishment imposed upon the delinquent was totally disproportionate to the gravity of the oence committed by him. So also in Ex-Naik Sardar Singh v. Union of India amp; Ors. (1991) 3 SCC 213 instead of one bottle of brandy that was authorized the delinquent was found carrying four bottles of brandy while going home on leave. He was sentenced to three months rigorous imprisonment and dismissal from service which was found by this Court to be disproportionate to the gravity of the oence proved against him.

12. The decision of this Court in Hind Construction amp; Engineering Co. Ltd. v. Workmen (AIR 1965 SC 917) dealt with a situation where some workers had remained absent from duty treating a particular day 10. In Bhagat Ram v. State of as a holiday. They were for that mis-

607 conduct dismissed from service. This Court held that the absence of the workmen could have been treated as leave without pay and they could also be warned and not ned. Reversing the order of punishment this Court observed: It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent sta in this manner. 13. Reference may also be made to Management of the Federation of Indian Chambers of Commerce and Industry v. Workman, Shri R.K. Mittal (1972) 1 SC 40) where the employer had issued a legal notice to the federation and to the international chamber of Commerce which brought discredit to the petitioner-employer. A domestic inquiry was held in which he was found guilty and his services terminated. This Court held that the punishment was disproportionate to the misconduct alleged observing: The Federation had made a mountain out of a mole hill and made a trivial matter into one involving loss of its prestige and reputation. 14. We may refer to the decision of this Court in M.P. Gangadharan amp; Anr. v. State of Kerala amp; Ors. (2006) 6 SCC 162, where this Court declared that the question of reasonableness and fairness on the part of the statutory shall have to be considered in the context of the factual matrix obtaining in each case and that it cannot be put in a straitjacket formula. The following passage is in this regard apposite: 34. The constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix obtaining in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of exibility. Before an action is struck down, the court must be satised that a case has been made out for exercise of power of judicial review. We are not unmindful of the development of the law that from the doctrine of Wednesbury unreasonableness, the court is leaning towards the doctrine of proportionality........ 15. That the punishment imposed upon a delinquent should commensurate to the nature and generally of the misconduct is not only a requirement of fairness, objectivity, and non-discriminatory treatment which even those form quality of a misdemeanour are entitled to claim but the same is recognized as being a part of Article 14 of the Constitution. It is also evident from the long time of decisions referred to above that the courts in India have recognized the doctrine of proportionality as one of the ground for judicial review. Having said that we need to remember that the quantum of punishment in disciplinary matters is something that rests primarily with the disciplinary authority. The jurisdiction of a Writ Court or the Administrative Tribunal for that matter is limited to nding out whether the punishment is so outrageously disproportionate as to

Charanjit Lamba v. Commndng.Ocer,Southern Command 2010 608 be suggestive of lack of good faith. What is clear is that while judicially reviewing an order of punishment imposed upon a delinquent employee the Writ Court would not assume the role of an appellate authority. It would not impose a lesser punishment merely because it considers the same to be more reasonable than what the disciplinary authority has imposed. It is only in cases where the punishment is so disproportionate to the gravity of charge that no reasonable person placed in the position of the disciplinary authority could have imposed such a punishment that a Writ Court may step in to interfere with the same. thy for an ocer. The competent authority was therefore justied in taking the view that the nature of the misconduct proved against the appellant called for a suitable punishment. Inasmuch as the punishment chosen was dismissal from service, the competent authority, did not in our opinion, take an outrageously absurd view of the matter. We need to remember that the higher the public oce held by a person the greater is the demand for rectitude on his part. An ocer holding the rank of Major has to lead by example not only in the matter of his readiness to make the supreme sacrice required of him in war or internal strife but even in adherence to the principles of honesty, loyalty and commitment. An ocer cannot inspire those under his command to maintain the values of rectitude and to remain committed to duty if he himself is found lacking in that quality. Suce it to say that any act on the part of an ocer holding a commission in the Indian Army which is subversive of army discipline or high traditions of the Army renders such person unt to stay in the service of the nations Army especially when the misconduct has compromised the values of patriotism, honesty and selessness which values are too precious to be scaried on the altar of petty monetary gains, obtained by dubious means.

16. The question then is whether the present is indeed one such case where the High Court could and ought to have interfered with the sentence imposed upon the appellant on the doctrine of proportionality. Our answer is in the negative. The appellant was holding the rank of a Major in the Indian Army at the time he committed the misconduct alleged and proved against him. As an ocer of disciplined force like the Army he was expected to maintain the highest standard of honesty and conduct and forebear from doing anything that could be termed as unbecoming of anyone holding that rank and oce. Making a false claim for payment of transport charges of household luggage and car to Chandigarh was a 17. In the result this appeal fails serious matter bordering on moral turpitude. Breach of the rule requir- and is hereby dismissed. ing him to clear his electricity dues J. (DALVEER BHANDARI) upon his transfer from the place of J. (T.S. THAKUR) his posting was also not credit worNew Delhi July 6, 2010

Chapter 54

J.S. Sekhon v. Union Of India 2010

J.S. Sekhon v. Union Of India and sentence of one year of rigorous Ors. on 10 August, 2010 imprisonment and also of cashiering him from service. Author: . M Sharma 2. The appellant was a ComBench: Mukundakam Sharma, missioned Ocer in the Indian Army Anil R. Dave working at the relevant time at Leh. CIVIL APPELLATE JURISHe was working as a Garrison EnDICTION gineer, 865 EWS, where he invited CIVIL APPEAL NO. 6274 OF oers from private parties to supply 2003 the garrison with Diesel Generator J.S. SEKHON ...Appellant Ver- (DG) sets and to make other repairs and replacement. sus 3. On 29.11.1994 he entered UNION OF INDIA ...Responinto an agreement with M/s Surjit dent JUDGMENT Singh Sokhi to repair two DG Sets Dr. Mukundakam Sharma, J. at FRL Powerhouse at Leh for Rs. 1. This Civil Appeal is di2.29 lakh and to repair LT cables rected against the judgment of the at Nimmuy area Leh for Rs. 2.49 High Court of Jammu amp; Kashlakhs. On 30.11.1994 he entered into mir dated 2.4.2002. By the aforean agreement with M/s Mohd Sulsaid order, the Division Bench of tan and Bros. to replace LT cathe High Court upheld the order of bles and providing an ACR conducthe learned Single Judge of the High tor and to replace parts of two DG Court of Jammu amp; Kashmir, disSets for Rs. 2.48 lakhs. Authormissing the Writ Petition and upities noticed irregularities in these holding the order of conviction of the purchases and on 6.12.1994 investiappellant by the General Court Margated the contract agreements. A tial (GCM) for defrauding the Army

610

J.S. Sekhon v. Union Of India 2010 6. The appellant then challenged this conviction and sentence based on several issues. The Single Judge of the High Court of Jammu amp; Kashmir at Srinagar dismissed the Writ Petition holding the same to be without merit. The Division Bench of the High Court in the writ appeal led before it similarly held that there was no procedural irregularity or illegality in the GCM proceedings. That appeal was also dismissed.

vigilance check was performed by the Commander Works Engineers (CWE) on 9.12.1994. CWE then asked the appellant for his comments on the report which were submitted on 6.2.1995. Discrepancies detected in comparing the report and the comments of the appellant prompted the Technical Board of Ocers to issue a report on 9.4.1995, which led a court of enquiry being convened on 20.9.1995 and then to a GCM being convened on 9.3.1998. The appellant was then served a charge sheet on 9.3.1998 that was then withdrawn due to errors and thereafter he was re-served with a fresh charge sheet on 11.3.1998.

7. Being aggrieved by both the orders passed by the learned Single Judge and the Division Bench of the High Court, a Special Leave Petition was led by the appellant. After leave was granted, the appeal was 4. Seven charges were framed placed for nal hearing in which we against the appellant two of which heard the learned counsel appearing could not be proved. All the charges for the parties. revolved around the allegation of his 8. The learned counsel appeardefrauding the Army for purchasing ing for the appellant mainly raised services to replace and repair items two issues before us during the course at exorbitant rates which are much of hearing. The rst submission higher than what is permissible un- of the learned counsel appearing for der the standard scheduled rates. the appellant was that the conven5. On 14.3.1998 the GCM commenced its proceedings and provided the appellant the right to raise objections of being tried by any ocer sitting on the court in accordance with Section 130 of the Army Act, 1950 read with Rule-44 of the Army Rules, 1954. He raised no objection at the time. However, at a subsequent stage of the trial he objected to being tried by the Presiding Ocer of the Court. The objection was then considered and rejected. The court convicted the appellant and sentenced him to one year rigorous imprisonment besides cashiering. ing of the General Court Martial on 14.3.1998 was barred under the provisions of Section 122 of the Army Act. The second submission of the learned counsel for the appellant was that the convening Ocer of the General Court Martial in the case of the appellant being the Commanding Ocer of the appellant, there is violation of the provision of paragraph 449(b) of the Army Regulation. 9. The learned counsel appearing for the respondent, however, refuted the aforesaid submissions while contending inter alia that neither the convening of the General Court Mar-

611 tial was barred by time nor that the convening ocer of the Court Martial was the commanding ocer of the appellant. According to him therefore not only there was no violation of Section 122 of the Army Act, but there was also no contravention of paragraph 449(b) of the Army Regulation. 10. In the light of the aforesaid submissions of the counsel appearing for the parties, we have perused the relevant provisions of the Army Act, 1950 (for short the Act) and the Army Regulations as also various documents and the decisions relied upon and on being fully acquainted thereof, we propose to dispose of the present appeal by giving our reasons thereof. But before doing that it would be appropriate to extract the relevant provisions of Section 122 of the Army Act, and Paragraph 449(b) of the Army Regulations. 122. Period of limitation for trial.-(1) Except as provided by subsection (2), no trial by court martial of any person subject to this Act for any oence shall be commenced after the expiration of a period of three years[and such period shall commence,- (a) on the date of the oence; or (b) where the commission of the oence was not known to the person aggrieved by the oence or to the authority competent to initiate action, the rst day on which such oence comes to the knowledge of such person or authority, whichever is earlier; or whom the oence was committed, the rst day on which the identity of the oender is known to the person aggrieved by the oence or to the authority competent to initiate action, whichever is earlier.] 449. Action by Superior Ocer .... (b) When the superior oce has been the CO of the accused at any time between the date on which cognizance of oence was taken against the accused and the date on which the case is taken up for disposal, or an ocer who has investigated the case, he cannot exercise the powers detailed in sub-para (a) (ii) to (v) inclusive 11. Section 122 of the Army Act provides the period of limitation for trial. In the said section, it is provided that no trial by court martial of any person shall be commenced after the expiration of a period of three years (a) from the date of the oence or, (b) where the commission of the oence was not known to the person aggrieved by the oence or to the authority competent to initiate action, the rst day on which such oence comes to the knowledge of such person or authority, whichever is earlier or (c) where it is not known by whom the oence was committed, the rst day on which the identity of the offender is known to the person aggrieved by the oence or by the authority competent to initiate action, whichever is earlier.

12. On going through the (c) where it is not known by records, we nd that it is an admitted position between the parties, that

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J.S. Sekhon v. Union Of India 2010 6.2.1995. As there were some variations in the vigilance report and the comments furnished by the appellant, a Technical Board of Ocers was constituted on 29.3.1995 and the said technical board of ocers submitted its report on 9.4.1995. Thereafter on 20.4.1995, on examination of the report, a letter was written by the Commanding Works Engineer to HQ 3 Infantry Division for constituting a court of enquiry. On 24.4.1995, a court of enquiry was convened and thereafter the court of enquiry submitted its report on 11.10.1996. 17. According to the counsel appearing for the appellant, when the vigilance check report was submitted, Commander Works Engineer who is the person aggrieved came to know that there was a commission of an oence and therefore period of limitation as envisaged under Section 122 of the Act would commence from that date and when limitation is computed from the said date, convening of the general court martial on 9.3.1998 was barred by time, as it was beyond the period of three years as contemplated under Section 122 of the Army Act. 18. The aforesaid factual position as stated above would indicate that although a vigilance check report was submitted on 19.12.1994, the Commanding Works Engineer sought for comments from the appellant and on receipt of the comments of the appellant some variations were found while comparing the vigilance report and the comments of the appellant and therefore, a Technical Board of Ofcers was required to be constituted

what is attracted in the present case is clause (b) of sub-Section (1) of Section 122. The date of limitation for holding a trial by court martial is a period of three years from any of the three dates as stated above. 13. Clause (b) is attracted and in that case the limitation of three years period would commence from the date of the knowledge of the commission of such oence by the person aggrieved by the oence or by the authority competent to initiate action. 14. Learned Counsel appearing for the appellant submitted before us that of the two expressions i.e. person aggrieved by the oence or the authority competent to initiate action, what is attracted in the present case is not the knowledge of the authority competent to initiate action but the other expression appearing in the section namely the date of knowledge of the person aggrieved of the commission of the oence. 15. The facts disclosed before us reveal that on 6.12.1994, the higher authority noticed some irregularity committed by the appellant and accordingly made some observations on the contract agreement whereupon on 9.12.1994, Commander Works Engineer directed a Vigilance Check in terms of which a Vigilance Check was conducted and a report to that eect was submitted on 19.12.1994. 16. It appears that on receipt of the aforesaid Vigilance Check Report, Commanding Works Engineer forwarded the report to the appellant and asked for his comments which were submitted by the appellant on

613 which was accordingly constituted on 29.3.1995. When the technical board of ocers so constituted submitted its report on 9.4.1995, it could be said that the fact of commission of oence by the appellant came to be nally recorded, but even thereafter a Court of Enquiry was convened so as to make an enquiry with regard to the allegation against the appellant. The Report of the court of enquiry nally proved and established that the appellant has committed an offence alleged against him and therefore the knowledge, if any, regarding the commission of the oence by the authority competent to convene the general court martial could be said to be on 11.10.1996, when the aforesaid Court of Enquiry Report was submitted or at the most it could be said that such knowledge was derived by the authority competent to initiate action of convening the general court martial on submission of the report by the technical board of ocers which was dated 9.4.1995. If the period of limitation is computed either from 9.4.1995 or 11.10.1996, the convening of the trial by general court martial on 9.3.1998 must be held to be within the period of limitation as prescribed under Section 122 of the Act. the present case no single person can be said to be aggrieved person individually due to the act of defrauding the Army. What is applicable to the facts of the case is the expression when it comes to the knowledge of the competent authority to initiate action. In coming to the aforesaid conclusion, we are fortied by a recent decision of this Court in Union of India and Others v. V.N. Singh reported in (2010) 5 SCC 579 wherein it was held thus:-

32....It is only the natural persons who can be hurt, angry, upset or wronged or maltreated, etc. If a government organisation is treated to be an aggrieved person then the second part of Section 122(1)(b) i.e.when it comes to the knowledge of the competent authority to initiate action will never come into play as the commission of oence will always be in the knowledge of the authority who is a part of the organisation and who may not be the authority competent to initiate the action. A meaningful reading of the provisions of Section 122(1)(b) makes it absolutely clear that in the case of a government organisation, it will be the date of knowledge of the authority competent to initiate the action, which will determine the question of limi19. In our considered opinion, the tation.... expression person aggrieved by the 20. The action contemplated by oence is irrelevant in the facts and Section 122 must be the action it circumstances of the present case and seeks to limit - namely a trial. The what is relevant is the knowledge of power of investigation and trial or the authority competent to initiate the power to convene a court of inaction. The aforesaid acts were com- quiry is vested in ocers in the chain mitted against the Government and of command and not with sta onot a natural person. In the facts of cers. It is therefore clear from Sec-

614

J.S. Sekhon v. Union Of India 2010 Col., whereas the commanding ocer was Col. R.K. Rana. The General ofcer commanding in the case of the appellant was a Major General who is much higher in rank than the commanding ocer and therefore, there is no violation of paragraph 449(b) of the Army Regulation. 24. Learned counsel appearing for the appellant submitted before us that here the convening ocer of the General Court Martial was his commanding ocer and therefore there was violation of regulation 449(b). The said allegation is found to be factually incorrect. Even otherwise, the appellant was attached to 603 ASC Battalion, for the purpose of investigation and progress of the disciplinary case, and therefore, commanding ocer on 603 ASC Battalion became his commanding ocer. It could not be disputed by the counsel appearing for the appellant that the said commanding ocer is the one who has led the charge sheet against the appellant and the appellant has not objected that the commanding ocer 603 ASC Battalion was the commanding ocer. That being the position, there is no violation at all of Paragraph 449(b) of the Army Regulation.

tion 122(1)(b) that the expression person aggrieved; necessarily means a natural person and what would be relevant is the knowledge of the competent authority to convene a general court martial against the appellant who in the present case is the general ocer commanding. His date of knowledge of the commission of oence becomes material as he is the competent authority to convene a general court martial against the appellant. 21. Since, the authority competent to initiate action has derived his knowledge about the commission of the oence on submission of the report of the Court of Enquiry 11.10.1996 or at the most on submission of the report by the technical board of ocers on 9.4.1995 and the date of the convening of the trial by general court martial is 9.3.1998, the trial is not barred by limitation as sought to be submitted by the counsel appearing for the appellant, and therefore, the submission of the counsel appearing for the appellant fails and is rejected.

22. Having held thus so far as the rst issue is concerned, let us now turn to the second issue, which was urged before us. We have very carefully analysed the scope and appli25. Therefore, all the issues urged cability of paragraph 449(b) of the by the appellant are found to be without any merit. Consequently, Army Regulation. 23. On consideration of the the appeal has no merit, and is disrecords placed before us, we nd missed, but we leave the parties to that in the present case, the Gen- bear their own costs. eral Court Martial, which was held against the appellant was convened by the general ocer commanding who was of the rank of a Major General. The appellant was a lieutenant J. [Dr. Mukundakam Sharma] J. [Anil R. Dave] New Delhi, August 10, 2010

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Chapter 60

OCallahan v. Parker, 395 U.S. 258, 265 (1969)

OCALLAHAN V. 395 U. S. 258 (1969) PARKER, After interrogation, petitioner confessed. He was charged with attempted rape, housebreaking, and Case Preview assault with attempt to rape, in viFull Text of Case U.S. Supreme olation of Articles 80, 130, and 134 Court OCallahan v. Parker, 395 of the Uniform Code of Military JusU.S. 258 (1969) tice, tried by a court martial, conOCallahan v. Parker victed on all counts, and sentenced. His conviction was armed by the No. 646 Army Board of Review, and thereArgued January 23, 1969 after by the United States Court of Decided June 2, 1969 Military Appeals. Petitioner later 395 U.S. 258 led a petition for a writ of habeas CERTIORARI TO THE corpus in the District Court claimUNITED STATES COURT OF AP- ing that the court martial was without jurisdiction to try him for nonPEALS military oenses committed o-post FOR THE THIRD CIRCUIT while on an evening pass. The DisSyllabus trict Court denied relief and the Petitioner, a United States Army Court of Appeals armed. sergeant, while on an evening pass Held: A crime, to be under milfrom his army post in Hawaii and itary jurisdiction, must be servicein civilian attire, broke into a ho- connected, and since petitioners tel room, assaulted a girl, and at- crimes were not, he could not be tried tempted rape. Following his appre- by court martial, but was entitled to hension, city police, on learning that a civilian trial with the benets of an petitioner was in the Armed Forces, indictment by a grand jury and trial delivered him to the military police.

626

OCallahan v. Parker, 395 U.S. 258, 265 (1969)

by jury. Pp. 395 U. S. 261-274.

mean that he was triable by court (a) Art. I, 8, cl. 14, of the martial. Pp. 395 U. S. 266-267. Constitution recognizes that military (f) In England before the Ameridiscipline requires military courts in can Revolution, and in this country, which not all the procedural safe- military trials of soldiers for civilian guards of Art. III trials need ap- oenses have been viewed with susply, and the Fifth Amendment ex- picion. Pp. 395 U. S. 268-271. empts cases arising in the land or (g) To be under military jurisnaval forces or in the militia, when diction, a crime must be servicein actual service in time of war or connected, lest all members of the public danger from the requirement armed services be deprived of the of prosecution by indictment and the benets of grand jury indictment and right to trial by jury. See Ex parte jury trial. Pp. 395 U. S. 272-273. Quirin, 317 U. S. 1, 317 U. S. 40. Pp. (h) There was not even a re395 U. S. 261-262. mote connection between petitioners (b) If the case does not arise in crimes and his military duties, and the land or naval forces, the accused the oenses were peacetime oenses, gets (1) the benet of an indictment committed in American territory by a grand jury and (2) a trial by which did not involve military aujury before a civilian court as guar- thority, security, or property. Pp. anteed by the Sixth Amendment and 395 U. S. 273-274. Art. III, 2. P. 395 U. S. 262. 390 F.2d 360, reversed. (c) A court martial (which is tried MR JUSTICE DOUGLAS delivin accordance with military tradiered the opinion of the Court. tions and procedures by a panel of ofPetitioner, then a sergeant in the cers empowered to act by two-thirds United States Army, was stationed in vote presided over by a military law July, 1956, at Fort Shafter, Oahu, in ocer) is not the Territory of Hawaii. On the night Page 395 U. S. 259 of July 20, while on an evening pass, an independent instrument of petitioner and a friend left the post justice, but a specialized part of an dressed in civilian clothes and went overall system by which military dis- into Honolulu. After a few beers cipline is preserved. Pp. 395 U. S. in the bar of a hotel, petitioner en263-265. tered the residential part of the ho(d) A civilian trial is conducive tel, where he broke into the room of to the protection of individual rights, a young girl and assaulted and atwhile a military trial is marked by re- tempted to rape her. While eeing tributive justice. P. 395 U. S. 266. from her room onto Waikiki Beach, (e) The fact that petitioner, at he was apprehended by a hotel sethe time of his oense and of his curity ocer, who delivered him to court martial, was a member of the the Honolulu city police for questionArmed Forces does not necessarily ing. After determining that he was

627 a member of the Armed Forces, the city police delivered petitioner to the military police. After extensive interrogation, petitioner confessed, and was placed in military connement. Petitioner was charged with attempted rape, housebreaking,and assault with intent to rape, in violation of Articles 80, 130, and 134 of the Uniform Code of Military Justice. [Footnote 1] He was tried by court martial, convicted on all counts, and given a sentence of 10 years imprisonment at hard labor, forfeiture of all pay and allowances, and dishonorable discharge. His conviction was armed by the Army Board of Review and, subsequently, by the United States Court of Military Appeals. Under connement at the United States Penitentiary at Lewisburg, Pennsylvania, petitioner led a petition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania, alleging, inter alia, that the court martial was without jurisdiction to try him for nonmilitary oenses committed o-post while on an evening pass. The District Court denied relief without considering the issue on the merits, and the Court of Appeals for the Third Circuit armed. This Court granted certiorari limited to the question: alleged to have been committed opost and while on leave, thus depriving him of his constitutional rights to indictment by a grand jury and trial by a petit jury in a civilian court? The Constitution gives Congress power to make Rules for the Government and Regulation of the land and naval Forces, Art. I, 8, cl. 14, and it recognizes that the exigencies of military discipline require the existence of a special system of military courts in which not all of the specic procedural protections deemed essential in Art. III trials need apply. The Fifth Amendment specifically exempts cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger from the requirement of prosecution by indictment and, inferentially, from the right to trial by jury. (Emphasis supplied.) See Ex parte Quirin, 317 U. S. 1, 317 U. S. 40. The result has been the establishment and development of a system of military justice with fundamental dierences from the practices in the civilian courts.

If the case does not arise in the land or naval forces, then the accused gets rst, the benet of an indictment by a grand jury, and second, a trial by jury before a civilian court, as guaranteed by the Sixth Amendment and by Art. III, 2, of Does a court martial, held un- the Constitution, which provides in der the Articles of War, Tit. 10, part: U.S.C. 801 et seq., have jurisdiction The Trial of all Crimes, except to try a member of the Armed Forces in Cases of Impeachment, shall be who is charged with commission of a by Jury, and such Trial shall be held crime cognizable in a civilian court in the State where the said Crimes and having no military signicance, shall have been committed; but when

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OCallahan v. Parker, 395 U.S. 258, 265 (1969) ing judicial functions in military trials. They are appointed by military commanders, and may be removed at will. Nor does the Constitution protect their salaries, as it does judicial salaries. Strides have been made toward making courts martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But, from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals. Moreover, there is a great difference between trial by jury and trial by selected members of the military forces. It is true that military personnel, because of their training and experience, may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an oense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. But, whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is inherent in the institution of trial by jury.

not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Those civil rights are the constitutional stakes in the present litigation. What we wrote in Toth v. Quarles, 350 U. S. 11, 350 U. S. 1718, is worth emphasis: We nd nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with oenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to ght or be ready to ght wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an armys primary ghting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic ghting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been, and probably never can be, constituted in such way that they can have the same kind of

A court martial is tried not by a jury of the defendants peers which must decide unanimously, but by a Page 395 U. S. 263 panel of ocers [Footnote 2] empowqualications that the Constituered to act by a two-thirds vote. tion has deemed essential to fair triPage 395 U. S. 264 als of civilians in federal courts. For instance, the Constitution does not The presiding ocer at a court provide life tenure for those perform- martial is not a judge whose ob-

629 jectivity and independence are protected by tenure and undiminishable salary and nurtured by the Judicial tradition, but is a military law ocer. [Footnote 3] Substantially different rules of evidence and procedure apply in military trials. [Footnote 4] Apart from those dierences, the suggestion of the possibility of inuence on the actions of the court martial by the ocer who convenes it, selects its members and the counsel on both sides, and who usually has direct command authority over its members is a pervasive one in military law, despite strenuous eorts to eliminate the danger. [Footnote 5] Page 395 U. S. 265 A court martial is not yet an independent instrument of justice, but remains to a signicant degree a specialized part of the overall mechanism by which military discipline is preserved. [Footnote 6] There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. . . . Determining the scope of the constitutional power of Congress to authorize trial by court martial presents another instance calling for limitation to the least possible power adequate to the end proposed. Toth v. Quarles, 350 U. S. 11, 350 U. S. 22-23.

While the Court of Military Appeals takes cognizance of some constitutional rights of the accused who are court martialed, courts martial as an institution are singularly inept in dealing with the nice subtleties of That a system of specialized mil- constitutional law. Article 134, alitary courts, proceeding by practices ready quoted, punishes dierent from those obtaining in the Page 395 U. S. 266 regular courts and in general less faas a crime all disorders and nevorable to defendants, is necessary glects to the prejudice of good order to an eective national defense esand discipline in the armed forces. tablishment few would deny. But Does this satisfy the standards of the justication for such a system vagueness as developed by the civil rests on the special needs of the milcourts? It is not enough to say that itary, and history teaches that exa court martial may be reversed on pansion of military discipline beyond appeal. One of the benets of a civilits proper domain carries with it a ian trial is that the trap of Article threat to liberty. This Court, mind134 may be avoided by a declaraful of the genuine need for special tory judgment proceeding or othermilitary courts, has recognized their wise. See Dombrowski v. Pster, propriety in their appropriate sphere, 380 U. S. 479. A civilian trial, in e.g., Burns v. Wilson, 346 U. S. 137, other words, is held in an atmosphere but, in examining the reach of their conducive to the protection of indijurisdiction, it has recognized that

630

OCallahan v. Parker, 395 U.S. 258, 265 (1969) Armed Forces, no matter how intimate the connection between their oense and the concerns of military discipline. From these cases, the Government invites us to draw the conclusion that, once it is established that the accused is a member of the Armed Forces, lack of relationship between the oense and identiable military interests is irrelevant to the jurisdiction of a court martial.

vidual rights, while a military trial is marked by the age-old manifest destiny of retributive justice. [Footnote 7] As recently stated: None of the travesties of justice perpetrated under the UCMJ is really very surprising, for military law has always been, and continues to be, primarily an instrument of discipline, not justice.

The fact that courts martial Glasser, Justice and Captain have no jurisdiction over nonsoldiers, Levy, 12 Columbia Forum 46, 49 whatever their oense, does not nec(1969). essarily imply that they have unThe mere fact that petitioner limited jurisdiction over soldiers, rewas, at the time of his oense and gardless of the nature of the oenses of his court martial, on active duty charged. Nor do the cases of this in the Armed Forces does not auto- Court suggest any such interpretamatically dispose of this case under tion. The Government emphasizes our prior decisions. that these decisions especially Kinsella v. Singleton establish that liPage 395 U. S. 267 We have held in a series of de- ability to trial by court martial is a cisions that court martial jurisdic- question of status tion cannot be extended to reach any person not a member of the Armed Forces at the times of both the offense and the trial. Thus, discharged soldiers cannot be court martialed for oenses committed while in service. Toth v. Quarles, 350 U. S. 11. Similarly, neither civilian employees of the Armed Forces overseas, McElroy v. Guagliardo, 361 U. S. 281; Grisham v. Hagan, 361 U. S. 278; nor civilian dependents of military personnel accompanying them overseas, Kinsella v. Singleton, 361 U. S. 234; Reid v. Covert, 354 U. S. 1, may be tried by court martial. whether the accused in the court martial proceeding is a person who can be regarded as falling within the term land and naval Forces. 361 U.S. at 361 U. S. 241. But that is merely the beginning of the inquiry, not its end. Status is necessary for jurisdiction; but it does not follow that ascertainment of status completes the inquiry, regardless of the nature, time, and place of the offense.

Both in England prior to the American Revolution and in our own national history, military trial of soldiers committing civilian oenses has These cases decide that courts been viewed with suspicion. [Footmartial have no jurisdiction to try note 8] Abuses of the court martial those who are not members of the

631 power were an important grievance of the parliamentary forces in the English constitutional crises of the 17th century. The resolution of that conict came with the acceptance by William and Mary of the Bill of Rights in 1689, which established that, in the future, Parliament, not the Crown, would have the power to dene the jurisdiction of courts martial. 1 W. & M., Sess. 2, c. 2. The 17th century conict over the proper role of courts martial in the enforcement of the domestic criminal law was not, however, merely a dispute over what organ of government had jurisdiction. It also involved substantive disapproval of the general use of military courts for trial of ordinary crimes. [Footnote 9] martial jurisdiction only over mutiny, sedition, and desertion. In all other respects, military personnel were to be subject to the Ordinary Processe of Law. The jurisdiction of British courts martial over military oenses which were also common law felonies was from time to time extended, [Footnote 10] but, with the exception of one year, [Footnote 11] there was never any general military jurisdiction to try soldiers for ordinary crimes committed in the British Isles. It was, therefore, the rule in Britain at the time of the American Revolution that a soldier could not be tried by court martial for a civilian oense committed in Britain; instead military ocers were required to use their energies and oce to insure that the accused soldier would be tried before a civil court. [Footnote 12] Evasion and erosion of the principle that crimes committed by soldiers should be tried according to regular judicial procedure in civil, not military, courts, if any were available, were among the grievances protested by the American Colonists. [Footnote 13]

Parliament, possessed at last of nal power in the matter, was quick to authorize, subject to annual renewal, maintenance of a standing army and to give authority for trial by court martial of certain crimes closely related to military discipline. But Parliaments new power over courts martial was exercised only very sparingly to ordain military jurisdiction over acts which were also oenses at common law. The rst of Early American practice followed the annual mutiny acts, 1 W. & M., the British model. [Footnote 14] The c. 5, set the tone. It established the Continental Congress, in enacting argeneral rule that ticles of war In 1776, emphasized the no Man may be forejudged of importance of military authority coLife or Limbe, or subjected to any operating to insure that soldiers who kinde of punishment by Martiall Law committed crimes were brought to or in any other manner than by the justice. But it is clear from the conJudgement of his Peeres and accord- text of the provision it enacted that it ing to the knowne and Established expected the trials would be in civil Laws of this Realme. courts. [Footnote 15] The general And it proceeded to grant courts article, which punished

632

OCallahan v. Parker, 395 U.S. 258, 265 (1969) be service-connected, lest cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger, [Footnote 18] as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benets of an indictment by a grand jury and a trial by a jury of his peers. The power of Congress to make Rules for the Government and Regulation of the land and naval Forces, Art. I, 8, cl. 14, need not be sparingly read in order to preserve those two important constitutional guarantees. For it is assumed that an express grant of general power to Congress is to be exercised in harmony with express guarantees of the Bill of Rights. We were advised on oral argument that Art. 134 is construed by the military to give it power to try a member of the armed services for income tax evasion. This article has been called a catch-all that incorporates almost every Federal penal statute into the Uniform Code. R. Everett, Military Justice in the Armed Forces of the United States 68-69 (1956). The catalogue of cases put within reach of the military is indeed long, and we see no way of saving to servicemen and servicewomen in any case the benets of indictment and of trial by jury if we conclude that this petitioner was properly tried by court martial. In the present case, petitioner was properly absent from his military base when he committed the crimes with which he is charged. There was no connection not even the re-

[all] crimes not capital, and all disorders and neglects, which ocers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war, was interpreted to embrace only crimes the commission of which had some direct impact on military discipline. Winthrop *1123. While practice was not altogether consistent, during the 19th century, court martial convictions for ordinary civil crimes were from time to time set aside by the reviewing authority on the ground that the charges recited only a violation of the general criminal law, and failed to state a military oense. Id. *1124, nn. 82, 88. [Footnote 16] During the Civil War, Congress provided for military trial of certain civil oenses [Footnote 17] without regard to their eect on order and discipline, but the act applied only in time of war, insurrection, or rebellion. Act of Mar. 3, 1863, c. 75, 30, 12 Stat. 736; Rev.Stat. 1342, Art. 58 (1874). In 1916, on the eve of World War I, the Articles of War were revised, 39 Stat. 650, to provide for military trial, even in peacetime, of certain specic civilian crimes committed by persons subject to military law and the general article, Art. 96, was modied to provide for military trial of all crimes or oenses not capital. In 1950, the Uniform Code of Military Justice extended military jurisdiction to capital crimes as well. We have concluded that the crime, to be under military jurisdiction, must

633 motest one between his military duties and the crimes in question. The crimes were not committed on a military post or enclave; nor was the person whom he attacked performing any duties relating to the military. Moreover, Hawaii, the situs of the crime, is not an armed camp under military control, as are some of our far-ung outposts. shall be punished as a court martial may direct, unless otherwise specically prescribed. Article 130 (10 U.S.C. 930) provides:

Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal oense therein is guilty of housebreaking and Finally, we deal with peacetime shall be punished as a court martial oenses, not with authority stem- may direct. ming from the war power. Civil Article 134 (10 U.S.C. 934) procourts were open. The oenses were vides: committed within our territorial limThough not specically menits, not in the occupied zone of a fortioned in this chapter, all disoreign country. The oenses did not involve any question of the outing ders and neglects to the prejudice of military authority, the security of of good order and discipline in the a military post or the integrity of mil- armed forces, all conduct of a nature to bring discredit upon the armed itary property. [Footnote 19] forces, and crimes and oenses not We have accordingly decided capital, of which persons subject to that, since petitioners crimes were this chapter may be guilty, shall be not service-connected, he could not taken cognizance of by a general, spebe tried by court martial, but rather cial, or summary court martial, acwas entitled to trial by the civilian cording to the nature and degree of courts. the oense, and shall be punished at Reversed. the discretion of that court. [Footnote 1] [Footnote 2] Article 80 of the Uniform Code Under Art. 25(c) of the Uniof Military Justice (10 U.S.C. 880) form Code of Military Justice, 10 provides in part: U.S.C. 825(c), at least. one-third (a) An act, done with specic of the members of the court martial intent to commit an oense under trying an enlisted man are required this chapter, amounting to more than to be enlisted men if the accused mere preparation and tending, even requests that enlisted personnel be though failing, to eect its commis- included in the court martial. In sion, is an attempt to commit that practice, usually only senior enlisted oense. personnel, i.e., noncommissioned o(b) Any person subject to this cers, are selected. See United States chapter who attempts to commit any v. Crawford, 15 U.S.C.M.A. 31, 35 oense punishable by this chapter C.M.R. 3, motion for leave to le pe-

634

OCallahan v. Parker, 395 U.S. 258, 265 (1969)

tition for certiorari denied, 380 U.S. 970. See generally Schiesser, Trial by Peers: Enlisted Members on Courts Martial, 15 Catholic U.L.Rev. 171 (1966).

mittee on Constitutional Rights of the Senate Committee on the Judiciary pursuant to S.Res. No. 260, 87th Cong., 2d Sess., 780-781 (1962), in each of which the Court of Military Appeals reversed court martial [Footnote 3] convictions on the ground of excesAt the time petitioner was tried, sive command inuence. a general court martial was presided [Footnote 6] over by a law ocer, who was required to be a member of the bar See Reid v. Covert, 354 U. S. 1, and certied by the Judge Advocate 354 U. S. 36. General for duty as a law ocer. [Footnote 7] U.C.M.J. Art. 26(a). The law oFor sobering accounts of the imcer could be a direct subordinate of pact of so-called military justice on the convening authority. Manual for civil rights of members of the Armed Courts Martial, United States, 1951, Services, see Hearings on Constitu4g(1). The Military Justice Act of tional Rights of Military Personnel 1968, 82 Stat. 1335, establishes a before the Subcommittee on Constisystem of military judges intended tutional Rights of the Senate Comto insure that, where possible, the mittee on the Judiciary pursuant to presiding ocer of a court martial S.Res. No. 260, 87th Cong., 2d Sess., will be a professional military judge, Feb. 20 and 21, March 1, 2, 6, 9, not directly subordinate to the conand 12, 1962; Joint Hearings before vening authority. the Subcommittee on Constitutional [Footnote 4] Rights of the Senate Committee on For example, in a court martial, the Judiciary and a Special Subcomthe access of the defense to com- mittee of the Senate Armed Services pulsory process for obtaining evi- Committee, 89th Cong., 2d Sess., on dence and witnesses is, to a signif- S. 745 et al., Pt. 1, Jan. 18, 19, icant extent, dependent on the ap- 25, and 26, March 1, 2, and 3, 1966, proval of the prosecution. United and Pt. 2. For a newly enacted MilStates v. Harvey, 8 U.S.C.M.A. 538, itary Justice Act, see 82 Stat. 1335. 25 C.M.R. 42, approving Manual for And see Summary Report of HearCourts Martial, United States, 1951, ings on Constitutional Rights of Mili115a. See Melnick, The Defendants tary Personnel, by the Subcommittee Right to Obtain Evidence: An Ex- on Constitutional Rights of the Senamination of the Military Viewpoint, ate Committee on the Judiciary, pur29 Mil.L.Rev. 1 (1965). suant to S.Res. No. 58, 88th Cong., 1st Sess. (1963) (Comm.Print). [Footnote 5] [Footnote 8] See, e.g., the cases listed in Hearings on Constitutional Rights of MilThe record of historical concern itary Personnel before the Subcom- over the scope of court martial ju-

635 risdiction is extensively reviewed in MR. JUSTICE BLACKs opinion for a plurality of the Court in Reid v. Covert, 354 U. S. 1, 354 U. S. 2330. See also Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court Martial Jurisdiction, 13 Vand.L.Rev. 435, 441-449 (1960); F. Wiener, Civilians Under Military Justice (1967) (hereinafter cited as Wiener). the provision was eliminated, and did not reappear. The 1721 Act and its successors provided for military trial of common law crimes only where ordinary civil courts were unavailable. See Prichard, The Army Act and Murder Abroad, 1954 Camb.L.J. 232; Wiener 14, 24-2. [Footnote 12]

Failure to produce a soldier for civil trial was a military oense by [Footnote 9] the ocer concerned. E.g., British See Reid v. Covert, 354 U. S. 1, Articles of War of 1765, 11, Art. 1, 354 U. S. 23-26. reprinted in W. Winthrop, Military Law and Precedents *1448, *1456 [Footnote 10] (2d ed. 1896, 1920 reprint) (hereSee Wiener c. 1. inafter cited as Winthrop). [Footnote 11] [Footnote 13] The Mutiny Act of 1720, 7 Geo. See Reid v. Covert, 354 U. S. 1, 1, c. 6, provided that a soldier could 354 U. S. 27-28 and n. 49. be court martialed for [Footnote 14] any Capital Crime, or . . . any In its brief, the Government lists Violence or Oence against the Pera large number of courts martial in son, Estate, or Property of any of the Subjects of this Kingdom, which is the very early days of the Nation punishable by the known Laws of the which it claims indicate that military trial for civil oenses was comLand mon in that period. The facts of unless the civil authorities, the cases, as reected in the brief within eight days of the oense, desummaries which are available to us, manded that the accused soldier be suggest no such conclusion. In alturned over to them for trial. In most every case summarized, it apNovember, 1720, the law ocers of pears that some special military inthe Army relied on this new provision terest existed. Many are peculiarly of the Mutiny Act to give an opinion military crimes desertions, assaults that it was proper to try a soldier on and thefts from other soldiers, and in Scotland where ordinary civil stealing government property. While courts were functioning by court those acts might also be felonies, martial for an oense which would by the time of the Revolutionary have been murder if prosecuted in War, oenses such as these long had the civil courts. See Wiener 245been dened as distinctively military 246. The very next year perhaps in crimes in the Mutiny Acts. Many of response to that ruling, Wiener 14 the remainder are identiably pros-

636

OCallahan v. Parker, 395 U.S. 258, 265 (1969) cious breach of military discipline. [Footnote 17] Larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with intent to kill, wounding by shooting or stabbing with an intent to commit murder, rape, or assault and battery with an intent to commit rape. Rev.Stat. 1342, Art. 58 (1874). [Footnote 18] It has been suggested, at various times, that the phrase when in actual service in time of War or public danger should be read to require a grand jury indictment in all cases arising in the land or naval forces, or in the Militia, except when the defendant is in service in time of War or public danger. It was decided at a very early date, however, that the above clause modies only Militia. Thus, the generally accepted rule is that indictment by grand jury is never necessary in cases arising in the land or naval forces, but is necessary for members of the militia, except when they have been called into the actual Service of the United States (Art. II, 2, U.S.Const.) to execute the Laws of the Union, suppress Insurrections and repel Invasions. Art. I, 8, U.S.Const.

ecutions for abusing military position by plundering the civil population or abusing its women while on duty. Many of the other cases in which the oense is stealing or assault on an individual were perhaps of this sort also, especially where the victim is referred to as inhabitant. Most of the rest simply recite the offender and the oense and give no basis for judging the relationship of the oense to military discipline. Those few which do appear to involve civilian crimes in clearly civilian settings appear also to have been committed by ocers. In the 18th century, at least, the honor of an ocer was thought to give a specic military connection to a crime otherwise without military signicance. Moreover, all those court martial held between 1773 and 1783 were for the trial of acts committed in wartime and, given the pattern of ghting in those days, in the immediate theater of operations. [Footnote 15] 1776 Articles of War, 10, Art. 1, reprinted in Winthrop *1494. [Footnote 16]

Cf. Ex parte Mason, 105 U. S. 696, 105 U. S. 698, in which the Court, sustaining a court martial conviction, under the general article, The limitation as to actual serof a military guard who killed a pris- vice in time of war or public danger oner, said, relates only to the militia. Ex parte [s]hooting with intent to kill is Mason, 105 U. S. 696, 105 U. S. 701. a civil crime, but shooting by a sol- See also Smith v. Whitney, 116 U. S. dier of the army standing guard over 167, 116 U. S. 186; Kurtz v. Mott, a prison, with intent to kill a pris- 115 U. S. 487, 115 U. S. 500; Dynes oner conned therein, is not only a v. Hoover, 20 How. 65. crime against society, but an atroJohnson. v. Sayre, 158 U. S. 109,

637 was a case in which a Navy paymaster sought habeas corpus from his court martial conviction for embezzlement in time of peace by arguing that he was entitled to indictment by grand jury: itary relations and prejudice military discipline, may properly be as they frequently have been the subject of charges under the present Article. On the other hand, where such crimes are committed upon or against civilians, and not at or near a military camp or post or in breach or violation of a military duty or order, they are not in general to be regarded as within the description of the Article, but are to be treated as civil, rather than military, oenses.

The decision below is based upon the construction that the words when in actual service in time of war or public danger refer not merely to the last antecedent, or in the militia, but also to the previous clause, in the land or naval forces. That construction is grammatically possiPp. *1124-*1125. ble. But it is opposed to the evident MR. JUSTICE HARLAN, whom meaning of the provision, taken by it- MR. JUSTICE STEWART and MR. self, and still more so when it is con- JUSTICE WHITE join, dissenting. sidered together with the other proI consider that the terms of the visions of the Constitution. Constitution and the precedents in Id. at 158 U. S. 114. And this Court point clearly to sustainsee Thompson v. Willingham, 217 ing court martial jurisdiction in this F.Supp. 901 (D.C.M.D.Pa.), ad, instance. The Courts largely one318 F.2d 657 (C.A.3d Cir.). sided discussion of the competing in[Footnote 19] dividual and governmental interests Winthrop, in commenting on the at stake, and its reliance upon what phrase to the prejudice of good or- are, at best, wholly inconclusive hisder and military discipline in a pre- torical data, fall far short of supporting the contrary conclusion which the decessor article to Article 134 said: majority has reached. In sum, I think A crime, therefore, to be cognizthat the Court has grasped for itself able by a court martial under this the making of a determination which Article, must have been committed the Constitution has placed in the under such circumstances as to have hands of the Congress, and that, in directly oended against the governso doing, the Court has thrown the ment and discipline of the military law in this realm into a demoralizing state. Thus, such crimes as theft state of uncertainty. I must dissent. from or robbery of an ocer, solMy starting point is the language dier, post trader, or camp-follower; of Art. I, 8, cl. 14, of the Constituforgery of the name of an ocer, and manslaughter, assault with in- tion, which empowers the Congress tent to kill, mayhem, or battery, [t]o make Rules for the Government committed upon a military person; and Regulation of the land and naval inasmuch as they directly aect mil- Forces, and the Fifth Amendments

638

OCallahan v. Parker, 395 U.S. 258, 265 (1969)

correlative exception for cases aris- make plain that, given the requiing in the land or naval forces. site military status, it is for Congress, Writing for a plurality of the and not the Judiciary, to determine Court in Reid v. Covert, 354 U. S. the appropriate subject matter juris1 (1957), MR. JUSTICE BLACK ex- diction of courts martial. See Coleman v. Tennessee, supra, at 97 plained that, if the U. S. 514. English constitutional language of Clause 14 is given history provides scant support for its natural meaning . . . , [t]he term the Courts novel interpretation of land and naval Forces refers to perClause 14, and the pertinent Amerisons who are members of the armed can history proves, if anything, quite services . . . , the contrary. id. at 354 U. S. 19-20, and that, The English history on which the accordingly, the Fifth Amendments majority relies reveals a longstanding exception encompasses persons in and multifaceted struggle for power the armed services. Id. at 354 U. between the military and the Crown, S. 22-23. In Kinsella v. Singleton, on the one hand, and Parliament, on 361 U. S. 234 (1960), again looking the other, which focused, inter alia, to the constitutional language, the on the Kings asserted independent Court noted that military jurisdicprerogative to try soldiers by court tion has always been based on the martial in time of peace. See genstatus of the accused, rather than erally J. Tanner, English Constituon the nature of the oense, id. tional Conicts of the Seventeenth at 361 U. S. 243; that is, whether Century (1961). The martial law of the accused is a person who can be the time was, moreover, arbitrary, regarded as falling within the term and alien to established legal prinland and naval Forces. Id. at 361 ciples. See 1 W. Blackstones ComU. S. 241. mentaries 413; M. Hale, History and In these cases and many others, Analysis of the Common Law in EngEx parte Milligan, 4 Wall. 2, 71 U. land 42 (6th ed. 1820). Thus, when, S. 123 (1866); Coleman v. Tennessee, with the Glorious Revolution of 1688, 97 U. S. 509 (1879); Smith v. Whit- Parliament gained exclusive authorney, 116 U. S. 167, 116 U. S. 184-185 ity to create peacetime court martial (1886); Johnson v. Sayre, 158 U. S. jurisdiction, it exercised that author109, 158 U. S. 114 (1895); Grafton v. ity sparingly: the early Mutiny Acts United States, 206 U. S. 333, 206 U. permitted trial by court martial only S. 348 (1907), this Court has consis- for the crimes of mutiny, sedition, tently asserted that military status and desertion. E. g., Mutiny Act of is a necessary and sucient condi- 1689, 1 W. & M., Sess. 2, c. 4. tion for the exercise of court martial Parliament subsequently exjurisdiction. The Court has never panded the militarys peacetime jupreviously questioned what the lanrisdiction both abroad and at home. guage of Clause 14 would seem to See Mutiny Act of 1712, 12 Anne,

639 c. 13; Mutiny Act of 1803, 43 Geo. 3, c. 20. And, signicantly, 46 of the Mutiny Act of 1720, 7 Geo. 1, c. 6, authorized trial by court martial for oenses of a nonmilitary nature if the injured civilian made no request that the accused be tried in the civil courts. See F. Wiener, Civilians Under Military Justice 13-14, 245-246 (1967). [Footnote 2/1] The burden of English history was not lost on the Framers of our Constitution, who doubtless feared the Executives assertion of an independent military authority unchecked by the people acting through the Legislature. Article 9, 4, of the Articles of Confederation from which Art. I, 8, cl. 14, of the Constitution was taken [Footnote 2/2] was responsive to this apprehension: The United States in Congress assembled shall . . . have the sole and exclusive right and power of . . . making rules for the government and regulation of the . . . land and naval forces, and directing their operations. (Emphasis added.) But nothing in the debates over our Constitution indicates that the Congress was forever to be limited to the precise scope of court martial jurisdiction existing in 17th century England. To the contrary, Alexander Hamilton stated that Congress power to prescribe rules for the government of the armed forces of national exigencies, or the corresponding extent & variety of the means which may be necessary to satisfy them. The Federalist, No. 23. (Emphasis omitted.) American exercise of court martial jurisdiction prior to, and contemporaneous with, adoption of the Constitution lends no support to the Courts position. Military records between the end of the War of Independence and the beginning of the War of 1812 show frequent instances of trials by court martial, east of the frontier, for offenses against civilians and the civil laws, such as theft, assault, and killing livestock. [Footnote 2/3] Military authority to try soldiers for such oenses derived initially from the general article of war, rst enacted by the Continental Congress in 1775, [Footnote 2/4] and incorporated today in Art. 134, 10 U.S.C. 934. W. Winthrops Military Law and Precedents (2d ed. 1896), the leading 19th century treatise on military law, recognized that the general article encompassed crimes committed upon or against civilians . . . at or near a military camp or post id. at 724 (1920 reprint) (second emphasis added), and noted that even this limiting principle was not strictly observed. Id. at 725, 730-732. And in Grafton v. United States, 206 U. S. 333, 206 U. S. 348 (1907), the Court held, with respect to the general article, that:

The crimes referred to in that ought to exist without limitaarticle manifestly embrace those not tion, because it is impossible to forecapital, committed by ocers or solsee or dene the extent and variety diers of the Army in violation of pub-

640

OCallahan v. Parker, 395 U.S. 258, 265 (1969) resolution of the controversy before us calls for any balancing of interests. But if one does engage in a balancing process, one cannot fairly hope to come up with a meaningful answer unless the interests on both sides are fully explored. The Court does not do this. Rather, it chooses to ignore strong and legitimate governmental interests which support the exercise of court martial jurisdiction even over nonmilitary crimes. The United States has a vital interest in creating and maintaining an armed force of honest, upright, and well disciplined persons, and in preserving the reputation, morale, and integrity of the military services. Furthermore, because its personnel must, perforce, live and work in close proximity to one another, the military has an obligation to protect each of its members from the misconduct of fellow servicemen. [Footnote 2/9] The commission of oenses against the civil order manifests qualities of attitude and character equally destructive of military order and safety. The soldier who acts the part of Mr. Hyde while on leave is, at best, a precarious Dr. Jekyll when back on duty. Thus, as General George Washington recognized:

lic law as enforced by the civil power. No crimes committed by ocers or soldiers of the Army are excepted by the . . . article from the jurisdiction thus conferred upon courts martial except those that are capital in their nature. . . . [T]he jurisdiction of general courts martial [is] . . . concurrent with that of the civil courts. [Footnote 2/5] Even if the practice of early American courts martial had been otherwise, this would hardly lead to the conclusion that Congress lacked power to authorize military trials under the present circumstances. It cannot be seriously argued as a general matter that the constitutional limits of congressional power are coterminous with the extent of its exercise in the late 18th and early 19th centuries. [Footnote 2/6] And however restrictively the power to dene court martial jurisdiction may be construed, it would be patently wrong so to limit that power. The disciplinary requirements of todays armed force of over 3,000,000 men [Footnote 2/7] are manifestly dierent from those of the 718-man army [Footnote 2/8] in existence in 1789. Cf. The Federalist, No. 23, quoted, supra, at 395 U. S. 277. By the same token, given an otherwise valid exercise of the Article I power, I can perceive no basis for judicial curtailment of court martial jurisdiction as Congress has enacted it.

All improper treatment of an inhabitant by an ocer or soldier being destructive of good order and discipline as well as subversive of the rights of society is as much a breach In the light of the language and of military as civil law, and as punhistory of Art. 1; 8, cl. 14, of the ishable by the one a the other. Constitution, and this Courts hith14 Writings of George Washingerto consistent interpretation of this ton 140-141 (Bicent. ed.). A solprovision, I do not believe that the diers misconduct directed against

641 civilians, moreover, brings discredit ities of his organization while under upon the service of which he is a such restriction. Manual for Courts member: Martial, United States (1969), 20b. Under every system of military The trial need not be held in the julaw for the government of either land risdiction where the oense was comor naval forces, the jurisdiction of mitted. Id., 8. See, e.g., United courts martial extends to the trial States v. Voorhees, 4 U.S.C.M.A. and punishment of acts of military or 509, 515, 16 C.M.R. 83, 89 (1954); naval ocers which tend to bring dis- cf. United States v. Gravitt, 5 grace and reproach upon the service U.S.C.M.A. 249, 256, 17 C.M.R. 249, of which they are members, whether 256 (1954). And punishments such those acts are done in the perfor- as forfeiture of pay, restriction to limmance of military duties, or in a civil its, and hard labor without connement may be imposed that do not position. . . . keep the convicted serviceman from Smith v. Whitney, 116 U. S. 167, performing his military duties. See 116 U. S. 183-184 (1886). The GovManual for Courts Martial, supra, ernment, thus, has a proper concern 126g, h, k. in keeping its own house in order The Court does not explain by deterring members of the armed the scope of the service-connected forces from engaging in criminal misconduct on or o the base, and by re- crimes as to which court martial juhabilitating oenders to return them risdiction is appropriate, but it apto useful military service. [Footnote pears that jurisdiction may extend to nonmilitary oenses in appropriate 2/10] circumstances. Thus, the Court intiThe exercise of military jurisdicmates that it is relevant to the juristion is also responsive to other pracdictional issue in this case that petical needs of the armed forces. A titioner was wearing civilian clothes, soldier detained by the civil authorrather than a uniform, when he comities pending trial, or subsequently mitted the crimes. Ante at 395 U. S. imprisoned, is, to that extent, ren259. And it also implies that plundered useless to the service. Even dering, abusing, and stealing from if he is released on bail or recognicivilians may sometimes constitute zance, or ultimately placed on proa punishable abuse of military posibation, the civil authorities may retion, ante at 395 U. S. 270, n. 14, and quire him to remain within the juristhat ocers may be court martialed diction,thus making him unavailable for purely civilian crimes, because, for transfer with the rest of his unit [i]n the 18th century . . . , or as the service otherwise requires. the honor of an ocer was thought In contrast, a person awaiting to give a specic military connection trial by court martial may simply be to a crime otherwise without military restricted to limits, and may particsignicance. [Footnote 2/11] ipate in all military duties and activIbid. But if these are illustrative

642

OCallahan v. Parker, 395 U.S. 258, 265 (1969)

cases, the Court suggests no general For example: the general orders standard for determining when the of George Washington report the exercise of court martial jurisdiction trial of soldiers for killing a Cow . is permissible. . stealing Fowls . . . . and stealing Whatever role an ad hoc judicial eleven Geese. . . . 26 Writings of approach may have in some areas of George Washington 73 (Bicent. ed.) the law, the Congress and the mil- (H.Q., Newburgh, January 28, 1783), itary are at least entitled to know and for stealing a number of Shirts with some certainty the allowable and blanketts out of the public store scope of court martial jurisdiction. at Newburgh. . . . Id. at 322 Otherwise, the innite permutations (H.Q., Newburgh, April 15, 1783). of possibly relevant factors are bound The Orderly Books of the Corps of to create confusion and proliferate Artillerists and Engineers report the litigation over the jurisdictional issue court martial of Sergeant Harris for in each instance. Absolutely nothing beating a Mr. Williams, an inhabiin the language, history, or logic of tant living near this garrison, Book the Constitution justies this uneasy 1, pp. 157-158 (West Point, Octostate of aairs which the Court has ber 5, 1795), and of Private Kelly for abusing and using violence on today created. Mrs. Cronkhyte, a citizen of the I would arm the judgment of United States. Book 3, pp. 446 the Court of Appeals. (West Point, July 5, 1796). Numer[Footnote 2/1] ous other instances of military punThis proviso was dropped in the ishment for nonmilitary crimes durMutiny Act of 1721, 8 Geo. 1, C. ing the period 1775-1815 are summa3, and court martial jurisdiction over rized in the appendix to the Brief for such oenses was thereafter limited the United States 35-52. by the articles of war to, inter alia, [Footnote 2/4] Place[s] beyond the Seas . . . where All crimes, not capital, and all there is no form of Our Civil Judicadisorders and neglects, which ocers ture in Force. F. Wiener, Civilians and soldiers may be guilty of, to the Under Military Justice 14 (1967). prejudice of good order and military [Footnote 2/2] discipline, though not mentioned in See 2 M. Farrand, The Records the articles of war, are to be taken of the Federal Convention of 1787, cognizance of by a general or regp. 330 (1911); 5 J. Elliot, Debates imental court martial, according to in the Several State Conventions on the nature and degree of the oence, the Adoption of the Federal Consti- and be punished at their discretion. tution as Recommended by the GenW. Winthrop, Military Law and eral Convention at Philadelphia in Precedents 957 (2d ed. 1896, 1920 1787, p. 443 (1836). reprint). [Footnote 2/3] [Footnote 2/5]

643 In 1916, Congress for the rst time explicitly authorized peacetime court martial jurisdiction for specic noncapital oenses. Article 93, Articles of War, 39 Stat. 664. It also revised the general article, renumbered Article 96, to read: Though not mentioned in these articles, all disorders and neglects to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon the military service, and all crimes or offenses not capital, of which persons subject to military law may be guilty, shall be taken cognizance of by a general or special or summary court martial, according to the nature and degree of the oense, and punished at the discretion of such court. Testifying before the Senate Subcommittee on Military Aairs, Brigadier General Crowder, the Judge Advocate General of the Army, explained the revision (cf. n. 4, supra): You will notice some transposition of language. The phrase to the prejudice of good order and military discipline is put in in such a way that it qualies only all disorders and neglects. As the law stands today, it was often contended that this phrase qualied also all crimes not capital. There was some argument about whether it would reach back through that clause, all disorders and neglects, to the clause all crimes not capital and qualify the latter clause. . . . [B]ut Justice Harlan, in the decision in the Grafton case, seems to have set the matter at rest, and I am proposing legislation along the lines of Justice Harlans decision. Hearings before the Senate Subcommittee on Military Aairs, an Appendix to S.Rep. No. 130, 64th Cong., 1st Sess., 25, 91. The Act of March 3, 1863, 30, 12 Stat. 736, authorized punishment for specic nonmilitary crimes, including capital ones, in time of war, insurrection, or rebellion. Article 92 of the 1916 Articles of War, 39 Stat. 664, made murder and rape punishable by death, but provided that no person shall be tried by court martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace. This proviso was deleted in the Uniform Code of Military Justice, Articles 118, 120, 10 U.S.C. 918, 920, so that, today, there is no jurisdictional distinction between capital and noncapital oenses. [Footnote 2/6] On such a theory, for example, Congress could not have permissibly waited, as it did, until 1875, see Act of March 3, 1875, 1, 18 Stat. 470, to confer general federal question jurisdiction on the district courts; the present-day exercise of this jurisdiction, see 28 U.S.C. 1331, would be unconstitutional. [Footnote 2/7] Statistical Abstract United States 257 (1968). [Footnote 2/8] R. Weigley, History of the United States Army 566 (1967). of The

644 [Footnote 2/9]

OCallahan v. Parker, 395 U.S. 258, 265 (1969)

dier, Record Transcript 61, and MaCongress may also assume the jor Turner testied: responsibility of protecting civilians He has given superior perforfrom harms perpetrated by members mance, as far as I know. . . . He has of the armed forces. For the military gone through school, and the Army is often responsible for bringing to a does have a lot of money wrapped up locality thousands of its personnel in this man. . . . I think at this time, whose numbers may be as great as, here, that a rehabilitation program is and sometimes exceed, the neighbor- in order. ing population thereby imposing on Id. at 64. the local law enforcement agencies a [Footnote 2/11] burden which they may be unable to It is, to say the least, strange carry. that, as a constitutional matter, the [Footnote 2/10] military is without authority to disThus, at petitioners presentence cipline an enlisted man for an oense hearing, Captain Powell testied that is punishable if committed by an that, through proper rehabilitation, ocer. OCallahan can make a good sol-

Index
Central Civil Services (Pension) Rules, 90 Constitution of India, 90 Criminal Misconduct, 1 grant of pension, 90 Investigation by Inspector of Police, 1 Legality of charge, 1 Liberalisation in computation of pension, 90 Major E. G. Barsay, 1 pension for Armed Forces Personnel, 90 Pension is a right, 90 Public Servants charged with others, 1 Sarwan Singh v. The State of Punjab, [1957], 3 Special Police Establishment, 1