TA 137 of 2012 (arising out of CWP 9466 of 1994). Case: R.B.S. Bisht Vs Union of India. Armed Forces Tribunal
|TA 137 of 2012 (arising out of CWP 9466 of 1994)
|For Appellant: N.K. Kohli, Advocate and For Respondents: Mohit Garg, CGC
|Prakash Krishna, Member (J) and Air Marshal (Retd.) S.C. Mukul, Member (Ad.)
|Armed Forces Tribunal Act 2007 - Section 15; Army Act, 1950 - Sections 122, 123, 123(1), 2, 2(1), 2(i)(a), 3 (xxi), 3(1), 3(xviii), 3(xxi), 37, 9; Territorial Army Act, 1948 - Section 9
|April 28, 2014
|Armed Forces Tribunal
(Chandigarh, Regional Bench At Chandimandir)
1. The Punjab and Haryana High Court has transferred the file of CWP No. 9466 of 1994, on commencement of Armed Forces Tribunal Act, 2007 for its adjudication.
2. In the first spell of service, the petitioner joined the Army as Soldier on 20.10.1959 and after service of 33 years, retired from service on 30.11.1992 in the rank of Colonel. He sought for re-employment in the Army and was accordingly re-employed to serve for two years w.e.f. 15.1.1993. The dispute in the present case relates to some deeds/misdeeds of the petitioner allegedly done by him when he was Lt Colonel and took over as Commandant, Ammunition Depot Dappar. A Court of Inquiry was ordered and the petitioner was attached to a different unit. The above writ petition has been filed claiming the following reliefs:-
(a) Issue a writ or Certiorari quashing the Court of Inquiry assembled in accordance with the convening order dated 4.8.1992 at Annexure P-6, order dated 10.12.1992 at Annexure P-10 and order dated 6.7.1994 at Annexure P-19 and to set aside all events taken subsequent and pursuant thereto; and
(b) Issue a writ of Mandamus to the Respondents not to take any action against the petitioner in pursuance to the Courts of Inquiry at Annexures P-6 and P-10 as well as direction dated 6.7.1994 at Annexure P-19; and
(c) Direct the respondents to revert the petitioner back to his parent unit that is 268 Engineer Regiment for the remaining period of his contractual service; dispose of his representations by a speaking order; and
(d) Permit the petitioner to file true copies of annexures and dispense with service of advance notice to the Respondents; it is further prayed that pending the disposal of this petition, this Hon'ble Court may be pleased to stay all further proceedings directed vide order dated 6.7.1994 at Annexure P-19; and
3. The order convening Court of Inquiry has been challenged by raising number of pleas including that the petitioner being an Ex-serviceman, the provisions of Army Act (hereinafter referred 'Act') are not applicable to him. No Court of Inquiry can be held in respect of the incidents which took place during his first spell of service in the Army. As the petitioner is serving second spell of the service, the holding of Court of Inquiry is wholly illegal. Pointing out various alleged irregularities in the conduct of Court of Inquiry, the petitioner pleads that Rule 180 of Army Rule has not been complied with, the Court of Inquiry was not properly constituted and proper opportunity to cross-examine the witnesses etc. were not afforded to him. Also, the attachment of the petitioner to a different unit is illegal and is liable to be quashed.
4. On notice, the respondents have filed a joint written statement raising preliminary objections as also disputing the petitioner's pleas on merits. By way of preliminary objections, it has been stated that the petition has been got admitted by making a misrepresentation that the inquiry which the petitioner is challenging is already subject matter of dispute in Civil Writ Petition No. 398 of 1994. According to the respondents, the said writ petition has absolutely no connection with the present petition. Secondly, the writ petition No. 7962 of 1994-Lt Colonel Jaspal Singh Puri Vs Union of India and others involving the same inquiry which is impugned in the present petition, has been dismissed by the High Court on 1.8.1994. Therefore, the present petition is also liable to be dismissed on that ground. Thirdly, the points sought to be raised by the petitioner can always be raised by him if General Court Martial is ordered against him. Fourthly, the petitioner cannot be permitted to question the Court of Inquiry at this stage as there is no order convening the GCM. Plea that the petitioner should avail the remedy of statutory representation under Article 27 of the Army Act first before availing the writ court remedy, has also been raised.
5. On merits, the respondents have come out with the case that there is no legal bar to hold the Court of Inquiry in question. The Court of Inquiry can be held even after the retirement of an Army personnel. The Court of Inquiry was held by following the correct procedure. The Court of Inquiry is merely fact-finding body. No adverse to the petitioner, order is passed and no action has been taken on the basis of the said inquiry conducted by the court. In fact, a duly constituted staff Court of Inquiry was convened to ascertain the facts. The other allegations contained in the writ petition have been replied and denied.
6. Heard the learned counsel for the parties and perused the record. The learned counsel for the petitioner submitted that the petitioner was asked to appear as a witness before the Court of Inquiry on 15.2.1993. The three-member Court of Inquiry was ordered vide convening order filed as Annexure P-6 to the writ petition to be presided over by Lt Colonel (TS) H.S. Hansi and two members Major Anil Kumar and Nb Sub Shyam Lal. Elaborating the argument, it was submitted that an unauthorised person was allowed to witness the Court of Inquiry proceedings, some portion of the evidence was recorded in the absence of other member of the Court of Inquiry and that the petitioner was not permitted to cross-examine certain witnesses, without pointing out the names of those witnesses if any. In reply, the learned counsel for the respondents refuted all the above contentions of the learned counsel for the petitioner and submitted that the convening of the Court of Inquiry was properly passed and Court of Inquiry was duly conducted, it was not directed against the petitioner in particular but was a general Court of Inquiry. As soon as the name of the petitioner surfaced, he was associated to the proceedings of the Court of Inquiry and was allowed to participate in the Court of Inquiry by producing his evidence and cross-examining the witnesses. A person was permitted to witness the Court of Inquiry proceedings with a view to help the Court of Inquiry as the documents were voluminous and he only explained the procedure part having knowledge as to how the purchases etc. are made. He further submits that in view of the fact that court-martial have been concluded, the writ petition does not survive, especially when the petitioner has not questioned the legality and validity of the report of the Court of Inquiry.
7. Having heard the learned counsel for the parties and on perusal of the record, we find that the following questions arise for our determination:-
(1) Whether the Tribunal should re-transfer the matter back to the High Court to decide the writ petition in view of the judgment of this Tribunal given in OA 2264 of 2013-Shri Narain Vs Union of India and others decided on 3.3.2014, relied by the learned counsel for the petitioner?
(2) Whether the petitioner being an Ex-Army personnel and having been re-employed, is subjected to the Army Act or not?
(3) Whether the petitioner having been re-employed in the Army, Court of Inquiry could be initiated for his conduct relating to his first spell of engagement in the Army?
(4) Whether the present writ petition survives or it has been become infructuous in view of the subsequent orders passed by the High Court, looking to the nature of the controversy involved in the petition?
(5) Whether the proceedings of Court of Inquiry are vitiated on the pleas raised by the petitioner and the order convening the Court of Inquiry is liable to be set aside?
Point No. 1:
8. The learned counsel for the petitioner submits that in view of judgment of the Tribunal in OA No. 2264 of 2013-Shri Narain Vs Union of India and others, this Tribunal should refer back the petition to the High Court for its decision. It is necessary to look at the controversy which was involved in the case of Shri Narain (Supra) first. A bare perusal of the judgment would show that the petition was filed for quashing the charge-sheet therein and to discharge the petitioner therein. There a Court of Inquiry was ordered. The proceedings before the Court of Inquiry were going on. Even before the conclusion of Court of Inquiry, the...
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