T.A. No. 274/2010. Case: Brig. (Retd.) R.P. Singh Vs Union of India (UOI) and Ors.. Armed Forces Tribunal
| Case Number | T.A. No. 274/2010 |
| Counsel | For Appellant: Diljit Singh, Adv. and For Respondents: R. Balasubramanium, Adv. |
| Judges | A.K. Mathur, J. (Chairperson) and M.L. Naidu, Member |
| Issue | Army Act - Sections 45, 52, 57, 60, 63, 154 and 160; Army Rules - Rules 22, 23, 24 and 180; Constitution of India - Article 14 |
| Judgement Date | May 18, 2010 |
| Court | Armed Forces Tribunal |
Judgment:
(Principal Bench, New Delhi)
-
Present case W.P. (C) No. 18136 of 2006 was filed in Hon'ble Delhi High Court in 2006 which was transferred to this Tribunal on its formation on 15.01.2010.
-
The brief facts of the case are that the petitioner was commissioned on 12th June, 1969. During his service he qualified in several professional courses and also acquired various academic qualifications. He held challenging Command and Staff assignments during his tenure. Petitioner was promoted as a Brigadier and was appointed as Commander, 35, Infantry Brigade in Delhi on 09.03.1998. He relinquished his Command on 19.10.2000. He was selected to attend the National Defence Course w.e.f. January, 2001.
-
In June, 2001 General Officer Commanding, 2 Corps ordered a court of inquiry to ascertain irregularities in the Canteen (CSD) of 35, Infantry Brigade accounts as alleged by the Chartered Accountants. The court of inquiry was finalised on 13th December, 2001 which recommended disciplinary action against the petitioner.
-
Petitioner was consequently attached on 14.02.2002 to 7 Infantry Division, Firozepur. Army Rule 22 was complied with in July, 2002 in which of the 18 charges framed, 3 were dropped at this stage. The evidence was ordered to be recorded in writing which commenced in September, 2002 and was completed in December, 2002.
-
Meanwhile petitioner filed a Writ Petition (C) against the order of attachment to Firozepur which was dismissed in May, 2002.
-
After the recording of summary of evidence a charge sheet containing 13 charges was served to the petitioner. GCM assembled on 21.03.2002 and was concluded on 10.07.2003. The petitioner was held guilty of 7 charges. He was awarded punishment of "severe reprimand and forfeiture of service for 12 years in pension".
-
General Officer Commanding, 11 Corps who was also the convening authority in this case, ordered on 15.12.2003, a revision of the sentence as he considered the sentence awarded by the GCM to be too lenient. GCM reassembled on 29.12.2003 and revised the sentence "to cashiering and rigorous imprisonment for 9 months."
-
Petitioner filed another Writ Petition (C) No. 122 of for the same was also dismissed as post confirmation petition preferred by the petitioner was awaiting disposal.
-
The Central Government dismissed the post confirmation petition on 25.04.2006. The present petition was filed thereafter.
-
Learned Counsel for the petitioner went to the background of the case by suggesting that Lt. Gen. O.S. Lohchab was inimical to the petitioner as his friend Sh. Surender Kumar was not allotted a shop in the Shanker Vihar Shopping Complex, therefore, note of this fact may be taken. Lt. Gen. Lohchab had become the Director General of Military Intelligence and harboured ill will against the petitioner as he had not helped Sh. Surender Kumar in allotment of a shop in Shanker Vihar Shopping Complex.
-
Learned Counsel for the petitioner also argued that the court of inquiry was ordered by the GOC, 2 Corps based on an anonymous letter which was totally against the CVC norms and policies issued by the Army Headquarters from time to time. He cited CVC Notification No. 3 (V)/99/2 dated 29.06.1999 and Army HQ Letter No. A/56571/AG/DY-I dated 14.08.99. He also cited the decision given in the case of Noor Aga v. State of Punjab to support his contention. We have examined the convening order of the court of inquiry dated 17th June, 2001 and have verified that the Inquiry was based on the letter initiated by Chand Kamal Gupta Associates, Chartered Accountants vide their letter dated Audit/47 dated 11.05.2001. This Chartered Accountant was contracted for audit at 35, Infantry Brigade Canteen accounts and they had highlighted certain irregularities in maintaining of CSD Accounts of 35, Infantry Brigade. As such, it was not an anonymous complaint.
-
Learned Counsel for the petitioner argued that during the court of inquiry, Army Rule 180 was not complied with. We were of the considered opinion that court of inquiry is of no consequence at this stage, as the matter has been referred to a General Court Martial. Learned Counsel cited the decision given in the case of Prithi Pal Singh Bedi v. Union of India (1982) 3 SSC 140 wherein it has been held that "Army Rule 180-obligatoryfull opportunity to participate. Participation cannot be avoided on specious plea no specific inquiry was directed against persons whose character and military reputation involved-afforded full opportunity so that nothing is done at his back and without opportunity of participation-Rule 180-enabling provision to ensure participation-Pr. 46 @ 25- We are sure-authorities-supply necessary documents-avoid even remote reflection-not given adequate opportunity to defend himself ". The argument does not hold relevance, as since after the Court of Inquiry, the charges were heard under Army Rule 22 and evidence reduced to writing under Army Rule 23, followed by examination of witnesses in the General Court Martial.
-
We requested learned Counsel for the petitioner to proceed on arguing with the evidence on record during the General Court Martial so that proper appreciation of the evidence can be made. Court of inquiry is actually redundant at this stage, unless matter/facts in proceedings are in dispute.
-
Learned Counsel for the petitioner argued that Army Rule 22 was not complied with in the letter and spirit. Two witnesses and documents were not made available on the grounds that it was "Not relevant". While referring the case for reducing the evidence in writing was in violation of mandatory provisions of the Army Rule 22 in which the accused was not given full opportunity to cross examine witnesses and to produce witnesses and evidence in his defence on similar grounds. He supported his arguments by citing (1982) 3 SCC Lt. Col. Prithi Pal Singh Bedi v. Union of India, which states "the Army Rule 22 - procedure-hearing of charge stage-anterior to convening of court martial-if after hearing further action is contemplated. Army Rule 23 is procedure for Summary of Evidence and Army Rule 24 enables CO to inter-alia rehear case and discharge it summarily."
-
Army Rule 23 for reducing the evidence to writing, also similarly did not ask the two witnesses to depose. However, the documents were produced and are on record of GCM proceedings. Learned Counsel for the petitioner argued that there was a threat or coercion to all the witnesses. The documents called by the petitioner were also not produced on same grounds as being "not relevant". We again opined that the proceedings at the GCM are material since the defence got an opportunity to produce and examine witnesses during the GCM, deposition of the witnesses in the recording of evidence is not material. Learned Counsel cited the decision given in the case of State of Uttar Pradesh v. Ram Sajivan and Ors. 2009 (14) SCALE 376 - "impact of the evidence in totality on prosecution case or innocence of accused has to be kept in mind in coming to the conclusion-guilt or otherwise of accused-in reaching a conclusion about guilt-court has to appreciate, analyse and assess evidence placed before it by a yardstick of probabilities, its intrinsic value and animus of witness". In the case of Rajasthan State Road Transport Corporation and Anr. v. Bal Mukund Bairwa (2009) 4 SCC 299 - "if act-wholly unreasonable or arbitrary-same would be violative of Article 14 - in certain situations even gross violation-principles of Natural Justice-held to come within ambit of Article 14 - Pr. 35 @ 20- Order passed in violation of natural justice, save and except certain contingencies-nullity-AR Antulay (CB)- No prejudice need to be proved for enforcing fundamental rights. Violation of fundamental right itself renders impugned action void-so also violation of principles of natural justice renders act a nullity". In the cited judgments their Lordships have surmised that impact of evidence in...
To continue reading
Request your trial