Bombay High Court
Col.Ivan Singh S/O Late Shri ... vs Union Of India Thr Sescretary ... on 7 May, 2021
Bench: S.B. Shukre, Avinash G. Gharote
Cri. WP 289 of 2020.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO.289/2020
PETITIONER : Col. Ivan Singh s/o Late Shri Kanwar
Shamsher Singh aged about 56 years
r/o Plot No.20, Manav Seva Nagar
Seminary Hills Nagpur through Arnold
Singh s/o Col. Ivan Singh Aged about
25 years r/o Plot No.20 Manav Seva
Nagar, Seminary Hills, Nagpur-440006.
...VERSUS....
RESPONDENTS : 1. Union of India
Through Secretary Ministry of Defence,
Government of India South Block,
Parliament Street, New Delhi - 110011.
2. The Chief of Army Staff
Integrated HQ of Ministry of Defence
(Army) South Block, Parliament Street,
DHQ Post Office, New Delhi - 110011.
3. Director General of Territorial Army,
'Territorial Army Directorate' Integrated
HQ of MOD (Army) 'L' Block, Church
road New Delhi - 110001.
4. General Officer Commanding in Chief
(GOC-in-C), Head Quarters Eastern
Command Fort Williams Kolkatta.
5. General Officer Commanding in Chief
(GOC-in-C), Head Quarters Southern
Command Pune.
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6. 116 Infantry Battalion (Territorial
Army) (H & H) Assam, Thakurbari
Military Station (near Tezpur).
-----------------------------------------------------------------------------------------------
Mr. S.P. Dharmadhikari, Senior Advocate with Mr. A.M. Sudame, Advocate for
petitioner
Mr. Ulhas M. Aurangabadkar, ASGI for respondents
-----------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.2113/2020
PETITIONER : Col. Ivan Singh s/o Late Shri Kanwar
Shamsher Singh aged about 56 years
Mobile no.6909294677 email id -
[email protected] through
Arnold Singh s/o Col. Ivan Singh,
aged about 25 years r/o Plot no.20,
Manav Seva Nagar, Seminary Hills,
Nagpur-440006.
...VERSUS....
RESPONDENTS : 1. Union of India,
through Secretary, Ministry of Defence,
Govt. of India, South Block,
Parliament Street, New DHQ Post office,
New Delhi - 110011.
2. The Chief of Army Staff
Integrated HQ of MoD (Army),
South Block, Parliament Street,
DHQ Post Office, New Delhi - 110011.
3. Additional Directorate General
Discipline and Vigilance,
Adjutants General's Branch,
Integrated HQ of MoD (Army),
Sena Bhawan P.O. New Delhi - 110011.
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Cri. WP 289 of 2020.odt
3
-----------------------------------------------------------------------------------------------
Mr. S.P. Dharmadhikari, Senior Advocate with Mr. A.M. Sudame, Advocate for
petitioner
Mr. Ulhas M. Aurangabadkar, ASGI for respondents
-----------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.1796/2020
PETITIONER : Col. Ivan Singh s/o late Shri Kanwar
Shamsher Singh, aged 55 years
r/o Plot No.20, Manav Seva Nagar,
Seminary Hills, Nagpur-440006,
Mobile no.6909294677
email id - [email protected]
...VERSUS....
RESPONDENTS : 1. Union of India,
through Secretary, Ministry of Defence,
Govt. of India, South Block,
Parliament Street, New DHQ
Post office, New Delhi - 110011.
2. The Chief of Army Staff
Integrated HQ of MoD (Army),
South Block, Parliament Street,
DHQ Post Office, New Delhi - 110011.
3. Director General of Territorial Army,
'Territorial Army Directorate' Integrated
HQ of MoD (Army) 'L' Block, Church
road, New Delhi - 110001.
4. Commander, Territorial Army Group
Headquarters, Ghorpuri, Pune - 411001.
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5. Maj Gen D.A. Chaturvedi,
PVSM, AVSM, SM (Retired),
Building No.4 U, Flat No.1101,
AWHO, PHASE IV, Greater Noida,
District - Gautam Buddha Nagar,
Uttar Pradesh. Pin Code - 201310.
6. Brig Sajneev Tiwari,
Commander, Territorial Army Group
Headquarters, Ghorpuri,
Pune - Pin Code - 411001.
7. Col. Udai Bhaskarao Barawkar,
Commanding Officer, 56, NCC
Battalion, Kolhapur - 416001.
-----------------------------------------------------------------------------------------------
Mr. S.P. Dharmadhikari, Senior Advocate with Mr. A.M. Sudame, Advocate for
petitioner
Mr. Ulhas M. Aurangabadkar, ASGI for respondent nos.1 to 4
-----------------------------------------------------------------------------------------------
CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
Judgment reserved on : 28/01/2021
Judgment pronounced on : 07/05/2021
J U D G M E N T : (PER : AVINASH G. GHAROTE, J.)
1. Rule. Rule made returnable forthwith.
2. In Criminal Writ Petition No.289/2020 the following
relief is sought :-
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"i. Direct the Respondents to release the
petitioner from Thakurbari Military Station where he is
in detention since 01.07.2020 pursuant to the
Communication dated 30.06.2020."
3. In Writ Petition No.2113/2020, the following reliefs are
sought :-
"(a) Issue writ of Mandamus or any other writ,
order or directions to the respondents to call for record
of proceeding pertaining to the impugned order, dated
30.06.2020 issued by respondent no.3 vide their letter
No.C/06270/SC/943/20 (15)/AG/DV-2;
(b) Issue writ of Mandamus or any other
writ, order or directions to the respondents to quash
and set aside the impugned order, dated 30.06.2020
issued by respondent no.3 which is at Annexure 32;
(c) Declare that the petitioner has retired on
superannuation on 30.6.2020 and consequently direct
the respondents to relieve him from the post, in the
interest of justice."
4. Writ Petition No.1796/2020, the following reliefs are
sought :-
"(a) Issue writ of Mandamus or any other
writ, order or directions to the respondents to call for
record of inquiry proceedings pursuant to Convening
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order No.139102/C/118/A/TA, dated 01.02.2019
(Ann 14) and show cause notice, letter No.46347/TA-
42060/LC/TA-4 dated 16.04.2020 (Ann 23) peruse the
same; and
(b) Hold and declare that the entire action
on the basis of complaint of respondent no.7, starting
with convening order, dated 01.02.2019 to Court of
inquiry proceeding and show cause notice, dated
16/04/2020 is malafide exercise of power so as to
defame and injure the petitioner as such it is null and
void in the eyes of law. Consequently no action can be
taken based upon the report of Col. Udai Barawkar-
complainant.
(c) Issue notice to Attorney General of India
as quashment of Central Act is prayed for ;
(d) Quash and set aside Section 19 of the
Army Act, 1950 and Rule 14 (2) of the Army, Rules,
1954; being ultra vires to Section 71 of Army Act,
1950 and Article 14 and 21 of the constitution of
India;
(e) Quash and set aside the inquiry,
convened vide convening order dated 01.02.2019
issued by TA Group Headquarter, Southern Command
Pune, which is at Annexure 14 and show cause notice,
dated 16.04.2020 issued by respondent no.3 - Director
General Territorial Army on behalf of Chief of Army
Staff which is at Annexure 23."
Cri. WP 289 of 2020.odt
In all the above petitions, interim reliefs, have also been
sought. In Writ Petition No.1796/2020 though a challenge, is raised
to the validity of Section 19 of the Army Act, 1950 and Rule 14 (2)
of the Army Rules, 1954, being ultra vires to Section 71 of Army
Act, 1950 and Article 14 and 21 of the Constitution of India, the
same is given up on instructions by the learned Senior Counsel for
the petitioner.
5. The petitioner was employed with the respondents and
as on the date of cropping up of the dispute, was holding the rank of
Colonel and was stationed at Dibrugarh.
6. The sequence of events as narrated by the petitioner, in
a compilation placed on record on 15/12/2020, which as to the
factual position, is not disputed by the respondents, though the
allegations and imputations based thereupon are denied, for the
sake of ready reference, is reproduced as under :-
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Sr. Date Events
No.
01 08/10/2017 to Territorial Army Group Headquarters Southern
13/10/2017 Command issued a convening order thereby
constituting a board for conducting recruitment
rally for recruiting Jawans (Soldiers) in Territorial
Army in 118 Infantry Battalion (Territorial Army)
Grenadiers Nagpur.
02 29/11/2017 The petitioner lodged a complaint against the
illegalities and irregularities committed by Col.
Barawkar and his companions (Gdr. Amol Patil)
during the recruitment rally as well as regarding
misappropriation of temple funds, misuse of
manpower etc.
03 19/01/2018 A Staff Court of Inquiry was convened on the basis
of the complaints made by the petitioner against
Colonel Barawkar. The petitioner was prosecution
witness No.1.
04 23/04/2018 The Staff Court of Inquiry ordered against Colonel
Barawkar was cancelled without assigning any
reasons.
05 01/02/2019 A Departmental Court of Inquiry was convened
against the petitioner, to investigate issues
pertaining to misuse of authority, facilities and
manpower from 20/07/2014 to 13/06/2018. The
copy of the complaint against the petitioner has
not been provided to the petitioner till date.
06 25/02/2019 The petitioner submitted various objections in
25/03/2019 writing to the conduct of enquiry against him
25/03/2029 highlighting the fact that the petitioner is being
12/02/2020 made a scapegoat in an illegal Departmental Court
of Inquiry for the sole reason that he raised
objections and complained against the corrupt
practices of the higher officers. However,
petitioner fully cooperated in said Departmental
Court of Inquiry.
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07 25/02/2019 Departmental Court of Inquiry against the
to petitioner was conducted at 116 Infantry Battalion
07/03/2019 (TA) Para, Deolali. However, no action thereafter
was taken against the petitioner for almost 13
months.
08 16/04/2020 A show-cause-notice was issued under Section 19
read with Army Rule 14 of the Army Rules, 1954
to the petitioner as to why his services should not
be terminated. The show-cause-notice was issued
to the petitioner without deciding his various
representations dated 25/02/2019 (Annexure 16),
25/03/2019 (Annexure17), 25/03/2019
(Annexure-18), 14/02/2020 (Annexure 19),
12/02/2020 (Annexure20), 19/04/2020
(Annexure- 21) & 23/04/2019 (Annexure - 22).
09 18/04/2020 The petitioner submitted his representation to
show-cause-notice and stated that complete set of
Court of Inquiry, copy of complaint on basis of
which the enquiry was held, copy of findings
recommendations, directions and opinion of the
Court of Inquiry were not supplied along with the
show-cause-notice dated 16/04/2020.
10 The petitioner assailed the show-cause-notice
dated 16/04/2020 before this Court vide Writ
Petition No.1796/2020 (LD-VC-CW No.17/2020).
11 30/04/2020 This Court issued notice in the matter and directed
respondent nos.1 to 4 not to pass any adverse
order against the petitioner in pursuance of the
show-cause-notice dated 16/04/2020.
12 28/05/2020 The respondents filed an application seeking
appropriate directions.
13 30/05/2020 The petitioner filed his reply to the application
filed by the respondents.
14 03/06/2020 The petitioner reported for duty at Headquarter 2,
Mountain Division, Dibrugarh, Assam. The
petitioner was sent for mandatory 21 days
quarantine in view of COVID-19 guidelines of
Army.
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15 05/06/2020 This Court clarified that the respondents are at
liberty to proceed with the enquiry according to
law against the petitioner.
16 06/06/2020 The respondents called upon the petitioner to
submit his reply to the show-cause-notice dated
16/04/2020 but did not conduct any further
proceedings contemplated under Rule 14 of the
Army Rules.
17 09/06/2020 As the petitioner was quarantined in Military
Cantonment till 24/06/2020, the petitioner
addressed a handwritten letter to the respondents
reiterating that in order to submit his reply he
needs copies of documents which have not been
supplied despite Court's order dated 30/04/2020.
18 30/06/2020 The petitioner retired from service on attaining the
age of superannuation. All formalities in so far as
handing over of charge were completed by 12:00.
It is pertinent to note that there was no
disciplinary enquiry/proceedings pending against
the petitioner on the date of his superannuation.
19 30/06/2020 At around 20:06 PM a communication was
received by the 166 Infantry Battalion (TA) (H&H)
Assam, instructing invocation of Section 123 of the
Army Act against the petitioner.
20 01/07/2020 The respondents invoked Section 123 of the Army
Act and took petitioner in military custody. The
petitioner was detained at Military Station
Thakurbari, near Tezpur Assam.
21 01/07/2020 The petitioner made a representation seeking
release from military custody. The petitioner
pointed out that no fresh enquiry on same charges
can be initiated.
22 04/07/2020 The petitioner made another representation
informing the respondents that invoking Section
123 against the petitioner is illegal and therefore
he ought to be released.
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Mr. Arnold Singh son of the petitioner filed a
petition seeking a writ of Habeas Corpus for
release of the petitioner from illegal detention vide
Criminal Writ Petition No.289/2020 (LD-VC-
Criminal Writ Petition No.690/2020).
23 10/07/2020 This Court issued notices in the Criminal Writ
Petition No.289/2020 and the same was made
returnable on 24/07/2020.
The petitioner filed Writ Petition No.2113/2020
(LD-VC-CW No.570/2020) challenging the action
of the respondents in invoking Section 123 of the
Army Act against the petitioner.
24 20/07/2020 This Court issued notices in the matter and
directed that the petition will be heard along with
Writ Petition No.1796/2020.
25 24/07/2020 This Court by an interim order directed the
respondents to release the petitioner from military
custody upon furnishing an undertaking to the
respondents as well as to this Court that the
petitioner would make himself available for trial.
26 23/09/2020 The respondents addressed three communications
to the petitioner, informing the petitioner that the
subject matter of the tentative charges at this stage
would be on the basis of action of misconduct
which have been averred in the show-cause-notice
served upon the petitioner earlier.
Thus for the first time the charges on basis of
which Section 123 of the Army Act have been
invoked, has been communicated to the petitioner
on 23/09/2020.
7. The crux of the argument, advanced by learned Senior
Counsel Mr. S.P. Dharmadhikari is as under :-
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(A) No estoppel operates against the fundamental
rights. No one can barter away his fundamental rights. Under the
circumstances undertaking given to this Court on 24/7/2020 as well
as to the respondents would not non-suit the petitioner, if the
petitioner makes out a case of detention without authority of law.
(B) Article 33 of the Constitution of India empowers
the Parliament to modify the rights conferred by Part III of the
Constitution in its application to the Armed Forces. In exercise of
this power the Parliament has enacted Section 21 of the Army Act
which permits the Central Government to make rules by notification
restricting the rights available to a citizen to such extent and in such
manner as given therein. Conjoint reading of Article 33 of the
Constitution and Section 21 of the Army Act, according to him,
would reveal that the rights conferred by Article 19 can be curtailed
in its application to the army personnel by the Central Government,
however, the guarantee provided by Article 14 and 21 is still
available to the persons subject to the Army Act. As such the Army
Officers also enjoy protection against arbitrary action of the Army.
(C) Detention pursuant to order made under
Section 123 of the Army Act is without authority of law, because
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having taken recourse to Section 19 of the Army Act read with
Rule 14 (2) of the Army Rules as per Army Headquarters Letter
dated 30/09/2003, it was not permissible for the respondents to go
back, to taking up disciplinary proceedings against the petitioner as
a Statutory opinion was recorded that the Court-Martial in the
circumstances was neither practicable nor expedient. There is a
presumption that judicial and official acts have been regularly
performed. Such opinion having been recorded after the procedure
delineated in Rule 14 (2) of the Army Rules, 1954, there could be
no reversal of the process to embark upon Court-Martial as per
Army Headquarters letter dated 11/05/1993.
(i) Rule 22 and 23 of the Army Rules aim at
conducting fact finding enquiry and the Authority takes a view of
the matter for the first time and decides to take recourse to one of
the three ways to dealing with the matter. It is only when it decides
to conduct Court-Martial, then trial of the offence begins. Section
123 of the Army Act can be invoked only when a decision is taken to
conduct Court-Martial against an officer and not before. It is
unequivocal stand of the respondents and correctly so that since the
procedure of Rule 22 and Rule 23 of Army Rules 1954 is not
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completed no decision to Court-Martial the petitioner has been
taken. If that be so, Section 123 of Army Act, 1950 could not be
invoked at a time at which it was invoked.
(ii) The allegations contained in show-cause-notice
dated 16/04/2020 do not constitute any offence. The term 'Offence'
has been defined in Section 3 (xvii) which reads "Offence" means
any act or omission punishable under this Act and includes a civil
offence as hereinbefore defined. Section 3 (ii) defines "civil offence"
to mean an offence which is triable by a Criminal Court, which
means a Court of ordinary criminal justice in any part of India, as
per the definition in Section 3 (viii). Chapter VI of the Army Act
which includes Section 34 to Section 70 categorizes several acts as
offences including mutiny, desertion, absence without leave etc. The
legislature in its wisdom has specifically provided the acts which
amount to an offence in relation to the Army. The petitioner has not
been charged with any of the offences.
(iii) The order under Section 123 of the Army Act,
having been passed, in utter violation of order of this Hon'ble court
dated 30/04/2020 in Writ Petition No.1796/2020, which is still in
force and which engrafts an injunction prohibiting the respondents
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from making any order adverse to the petitioner, the order under
Section 123 of the Army Act, which took the petitioner in custody,
could therefore not be passed by the respondents, and therefore was
not sustainable.
(iv) The petitioner was taken into military custody by
the respondents on 01/07/2020 and was kept as such till
24/07/2020 i.e. for a period of 24 days without having been
informed about the charges/grounds for his detention. Section 50 of
the Army Act provides for punishment of imprisonment for a term
which may extend to two years for irregularity in connection with
arrest or confinement. Where any person subject to the Army Act
fails without reasonable cause to deliver at the time of committal or
as soon as may be or in any case within a period of 48 hours, a
written account of offence with which the committed person is
charged, he is liable to be prosecuted under Section 50. The
petitioner was kept in military custody for a period of 24 days
without informing him about the charges leveled against him.
Mr. S.P. Dharmadhikari, learned Senior Counsel for the
petitioner thus contends that for the aforesaid reasons, the
impugned order dated 30/06/2020 (Criminal Writ Petition
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No.2113/2020) is liable to be quashed and set aside, and the
petition of the petitioner seeking writ of Habeas Corpus (Criminal
Writ Petition No.289/2020) is required to be allowed. He also
contends that for deliberate and wilful disobedience of the order
dated 30/04/2020, charge under Section 12 of the Contempt of
Courts Act read with Article 215 of the Constitution of India is
required to be framed against the respondents.
8. In support of his above submissions, learned Senior
Counsel relies upon the following judgments :-
(1) Olga Tellis and others Vs. Bombay Municipal
Corporation and others, AIR 1986 SC 180.
(2) Madhu Limaye and others Vs. State of Bihar,
AIR 1969 SC 1014.
(3) Nand Lal Bajaj Vs. State of Punjab and
another, (1981) 4 SCC 327.
(4) Arnab Manoranjan Goswami Vs. The State of
Maharashtra and others, AIR 2021 SC 1 .
(5) Balkrishna Ram Vs. Union of India and
another, AIR 2020 SC 341.
(6) Whirlpool Corporation Vs. Registrar of Trade
Marks, Mumbai and others, (1998) 8 SCC 1.
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(7) M. P.. State Agro Industries Development
Corpn. Ltd. and another Vs. Jahan Khan, (2007) 10
SCC 88.
(8) Kunhayammed and others Vs. State of Kerala
and another, (2000) 6 SCC 359.
(9) National Buildings Construction Corporation
Vs. S. Raghunathan and others, (1998) 7 SCC 66.
(10) Om Prakash Chautala Vs. Kanwar Bhan and
others, 2014 (5) Mh.L.J. 498.
(11) The State of Punjab Vs. Sodhi Sukhdev
Singh, AIR 1961 SC 493.
(12) The State of U. P. Vs. Raj Narain and others,
(1975) 4 SCC 428.
(13) Amar Chand Butail Vs. Union of India and
others, AIR 1964 SCC 1658.
9. Mr. Ulhas Aurangabadkar, learned Assistant Solicitor
General of India (ASGI) submits as under :-
As a preliminary objection, he contends that in view of
Sections 14, 15 and 33 of the Armed Forces Tribunal Act, 2007 (for
short "the AFT Act 2007" hereinafter) as the matter relates to the
services of the petitioner, the present petition would not be
maintainable and the petitioner has to approach the Armed Forces
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Tribunal for ventilating his grievances. Without prejudice to this
preliminary objection, the learned ASGI contends as under :-
(i) The petitioner herein, when performing duties,
while serving as an officer in 118 Territorial Army, committed
certain culpable acts of commission and omission, which were
established during investigation by duly constituted Court of
Inquiry held under Rule 177 of the Army Rules.
(ii) The Court of Inquiry arrived at the findings that
number of acts of commission/omission on the part of the petitioner
have been established. The said enquiry proceedings were duly
approved by Chief of Army Staff who initially directed that
Administrative action be initiated against the petitioner for his
dismissal from service.
(iii) However, considering the nature of the matter
and peculiar facts and circumstances of the case, including the reply
to the show-cause-notice issued to him as also the fact that this
Court vide its order dated 30/04/2020 in LD-VC-WP No.17 of 2020
had passed an interim direction that no adverse order against the
petitioner in pursuance to the show-cause-notice dated 16/04/2020
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shall be passed, the Competent Authority refrained from passing any
order in respect of the petitioner.
(iv) Further it was also considered that the petitioner
was retiring from service on 30/06/2020. The provisions of
Section 123 of the Army Act were invoked against the petitioner so
that appropriate disciplinary action could be initiated against him
wherein he would get adequate opportunity to put up his defence
and a wholesome view of the matter could be taken based on all the
relevant evidence that would be brought on record.
(v) Before initiating any disciplinary action against
the petitioner, an application was filed by the respondents before
this Court duly informing about the initiation of disciplinary action.
(vi) The provisions of Section 123 of the Army Act
were invoked and the petitioner was attached to 140 Armoured
Brigade for initiation of disciplinary action as per the decision by the
Competent Authority i.e. the Chief of the Army Staff.
(vii) In the given peculiar circumstances of the case,
decision taken by the Competent Authority to change the
administrative action for termination of service into disciplinary
Cri. WP 289 of 2020.odt
action is legally permissible and the same does not violate any of the
rights of the petitioner.
(viii) The above fact was duly considered by this Court
during the hearing of LD-VC-WP No.17 of 2020 on 05 th June, 2020,
wherein it passed the following order :-
"4. On going through the order dated
30th April, 2020, we find that the order does not direct
stalling of the inquiry being conducted against the
petitioner and all that it does is of restraining the
respondent nos.1 to 4 only from passing any adverse
order against the petitioner in pursuance of the show
cause notice dated 16 April, 2020. So, we would make it
clear that the respondent nos.1 to 4 would be at liberty to
proceed with the inquiry according to law against the
petitioner and in this inquiry, the petitioner would have
to take part keeping his right reserved to challenge the
inquiry on all grounds subsequently. If the petitioner does
not take part in this inquiry, necessary order, including
order of dismissal of the petition would be passed by this
Court upon production of sufficient material regarding
non-participation before this Court on the on next date."
(ix) Despite the aforesaid order, the petitioner herein
has willfully avoided taking part in the enquiry, has been impeding
the administration of justice by filing various petitions,
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representations and sending legal notices to obstruct and delay the
investigation against him. The petitioner is in abuse of the process of
law wherein he has not acted upon the undertaking submitted in
this Court to cooperate with the authorities by non-reporting to 140
Armoured Brigade.
(x) That disciplinary proceedings against the
petitioner are being initiated under the framework provided under
the Army Act and Army Rules and as a corollary, entitlement of the
petitioner to various documents and with regard to putting up his
defence would also be governed by the statutory provisions
thereunder.
(xi) The relevant provisions which govern the rights
of an accused regarding entitlement to documents and preparation
of his defence are prescribed under Rule 180 and 184 of the Army
Rules during the Court of Inquiry stage, which have already been
duly complied.
(xii) Thereafter, upon initiation of disciplinary action,
as is the present stage, provisions of Rule 22 and 23 of the Army
Rules would be applicable wherein an accused person gets all due
opportunities to participate in the proceedings, cross-examine
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witnesses, produce own witnesses and evidence and make any
statement or produce relevant documents in his defence.
(xiii) Thereafter, in case any decision is taken to try
him by GCM (General Court-Martial), then the rights in his defence
as specified in Rule 33 and 34 of the Army Rules will be available to
him.
(xiv) Further every stage of the GCM is also governed
by due procedure specified in the Army Rules, which fully caters for
the accused to put up his defence at each stage.
(xv) That at present stage, the Commanding Officer
will take an independent decision based on the proceedings being
conducted under Rule 22 of the Army Rules whether to proceed
ahead with the disciplinary process or otherwise. Thereafter, in case
Summary of Evidence is recorded in terms of Rule 23 of the Army
Rules, then again authorities will examine the Summary of Evidence
to decide whether to proceed further or not for convening of the
Court-Martial. As of now, only the Court of Inquiry, which is the fact
finding body, has taken place wherein competent authorities have
come to a prima facie decision to proceed with disciplinary action
against the petitioner. At the present stage, no rights of the
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petitioner are affected and in the course of the disciplinary
proceedings, all due procedure prescribed by the Army Act and
Army Rules shall be duly followed, enabling the petitioner to
exercise his rights therein. After the conclusion of the Court of
Inquiry, under Rule 177 of the Army Rules, the petitioner was
entitled to get the statement of witnesses and exhibits under Rule
184 of the Army Rules, which have already been provided to him.
(xvi) That the invocation of Section 123 of the Army
Act is merely an enabling provision to ensure progress of the
disciplinary cases in situation where a person who has ceased to be
subject to the Act. He relies on the following decisions :-
(1) Lt. Gen. Avadhesh Prakash (retd.) Vs. Union of
India & others, Original Application No.66 of 2010,
decided on 22nd February, 2010 (Armed Forces
Tribunal, Principal Bench, New Delhi).
(2) Avadhesh Prakash Vs. Union of India & Ors.,
Petition(s) for Special Leave to Appeal (Civil)
No(s).7846/2010.
(3) Ex-Capt. Ashwani Kumar Katoch Vs. Union of
India and others, 1995 Supp (4) SCC 715.
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10. The foremost issue to be considered is the preliminary
objection as has been raised by Mr. Ulhas Aurangabadkar, learned
ASGI to the effect, that in view of the express provisions of the AFT
Act, 2007, the questions raised in these petitions, cannot be
entertained by this Court, as they relate to the service matter of the
petitioner. He invites our attention, to Sections 2 (o), 14, 15 and 33
of the AFT Act, 2007, to contend that a bar of jurisdiction has been
created due to which, it would not be permissible for this Court to
entertain and decide these petitions. Learned ASGI for this purposes
places reliance upon Union of India and others Vs. Major General
Shri Kant Sharma and another, (2015) 6 SCC 773; Union of India
and Ors. Vs. P. S. Gill, Criminal Appeal No.404 of 2013, decided on
27.11.2019 (Supreme Court of India).
10.1. Mr. S.P. Dharmadhikari, learned Senior Counsel,
opposes the preliminary objection. He invites our attention to the
language of Section 14 (1) of the AFT Act, 2007, to contend, that
the jurisdiction, power and authority of the Tribunal under the AFT
Act, 2007 cannot curtail the power of this Court to entertain and try
the present petitions. He lays stress on the expression "except the
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Supreme Court or High Court exercising jurisdiction under Articles
226 and 227 of the Constitution", as occurring in Section 14 (1) of
the AFT Act, 2007 to contend, that the jurisdiction of this Court is
not ousted. Further relying upon Olga Tellis (supra), he submits that
even otherwise, any action on part of the respondents to deprive the
petitioner of his liberty, can always be looked into by this Court in its
power under Article 226 of the Constitution. He further relies upon
Balkrishna Ram Vs. Union of India and another, (2020) 2 SCC 442.
10.2. In so far as the preliminary objection is concerned, we
are with the learned Senior Counsel for the petitioner. This is so for
the reason that none of the prayers as made in these petitions, as
reproduced above are for a relief, which could be related to what
has been stated in Section 3(o) (i) to (iv) of the AFT Act, 2007, in
respect of service matters, in view of which Section 14 of the AFT
Act, 2007 is clearly not attracted. So also, as of date, there has been
no Court-Martial against the petitioner, in which, he could be said to
have been awarded any punishment, in light of which, Section 15 of
the AFT Act, 2007 is also not attracted.
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10.3. In Major General Shri Kant Sharma (supra), the Armed
Forces Tribunal, was approached by the officers for adjudication or
trial of disputes and complaints with respect to conditions of service,
which having ruled against them, the High Court was approached
under Article 226 of the Constitution, it is in which context, the
Hon'ble Apex Court held that since remedy of appeal directly to the
Supreme Court was provided under Section 30 of the AFT Act,
2007, the petitions before the High Court by invoking Article 226 of
the Constitution were not maintainable.
10.4. In P. S. Gill (supra), the Hon'ble Apex Court held that
Section 14 of the AFT Act, 2007, should receive a wide construction
and an interpretation, which confers jurisdiction, should be
preferred over an interpretation which takes away jurisdiction,
relying upon Mantri Technozone Vs. Forward Foundation, (2019)
SCC OnLine SC 322. There cannot be any dispute with the above
proposition, however, on facts of the present case, as pointed above,
none of the reliefs claimed in the present petitions, can be said to
fall within Section 3 (o) of the AFT Act, 2007, for which reason, the
reliance upon P. S. Gill (supra) is misplaced.
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10.5. In fact, in Balkrishna Ram (supra), the Hon'ble Apex
Court while dilating upon the scope and ambit of the jurisdiction of
the Armed Forces Tribunal under Section 14 (1) of the AFT Act,
2007 and that of the High Court under Article 226 of the
Constitution after considering Major General Shri Kant Sharma
(supra), and placing reliance on the decisi0n of the Constitution
Bench in L. Chandra Kumar Vs. Union of India and others, (1997) 3
SCC 261, held as under :-
"9. We are not at all in agreement with this submission.
Section 14(1) of the Act quoted hereinabove clearly
provides that AFT will exercise powers of all courts except
the Supreme Court or the High Court exercising
jurisdiction under Articles 226 and 227 of the Constitution
of India. Section 34 is very carefully worded. It states that
"every suit", or "other proceedings" pending before any
court including a High Court immediately before the
establishment of the Tribunal shall stand transferred on
that day to the Tribunal. The legislature has clearly not
vested AFT with the power and jurisdiction of the High
Court to be exercised under Article 226 of the Constitution.
We are not going into the question as to whether the
Tribunal is amenable to the supervisory jurisdiction of a
High Court under Article 227 of the Constitution but there
can be no manner of doubt that the High Court can
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exercise its writ jurisdiction even in respect of orders
passed by AFT. True it is, that since an appeal lies to the
Supreme Court against an order of AFT, the High Court
may not exercise their extraordinary writ jurisdiction
because there is an efficacious alternative remedy available
but that does not mean that the jurisdiction of the High
Court is taken away. In a given circumstance, the High
Court may and can exercise its extraordinary writ
jurisdiction even against the orders of the High Court."
In respect of Major General Shri Kant Sharma (supra),
it was held as under :-
"15. Ms Dwivedi, placed reliance on the observations
made in Shri Kant Sharma that, "jurisdiction of the Tribunal
constituted under the Armed Forces Tribunal Act is in
substitution of the jurisdiction of the civil court and the
High Court so far as it relates to suit relating to conditions
of service of the persons", subject to the provisions of the
Act. It is clear that the intention of the Court was not to
hold that the Tribunal is a substitute of the High Court
insofar as its writ jurisdiction is concerned because that is
specifically excluded under Section 14(1) of the Act. We
cannot read this one sentence out of context. It is true that
proceedings on the original side even in exercise of writ
jurisdiction are to be transferred to the Tribunal for
decision by AFT because the original jurisdiction now vests
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with AFT. This however, does not mean that AFT can
exercise all the powers of the High Court . "
It is thus apparent, that the jurisdiction, power and
authority of the High Court, is not in any way curtailed by the
provisions of Section 14 (1) of the AFT Act, 2007, rather on the
contrary, is saved as is held above, and is also apparent from the use
of the expression "(except the Supreme Court or a High Court
exercising jurisdiction under Articles 226 and 227 of the
Constitution)", as occurring in Section 14 (1) of the AFT Act, 2007.
10.6. That apart, the position in the present matters, is quite
different, in as much as, as stated above, the challenges raised in the
present petitions, do not fall within the meaning of the expression
"service matters" as defined in Section 3 (o) of the AFT Act, 2007.
The preliminary objection, therefore, to the maintainability of the
petitions before this Court, is therefore rejected.
ALTERNATE REMEDY
11. The respondents have also raised a plea of an alternate
remedy, in view of provisions of Section 27 of the Army Act of
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making a complaint/representation to the Central Government in
the manner as specified in this regard.
11.1. In Whirlpool Corporation (supra) relied upon by Mr.
S.P. Dharmadhikari, learned Senior Counsel for the petitioner, while
considering the existence of an alternative remedy, it was held that
the power to issue prerogative writs under Article 226 of the
Constitution was plenary in nature and was not limited by any other
provision of the Constitution and could be exercised apart from for
issuing of the writs and also for enforcement of any of the
fundamental rights, contained in Part III of the Constitution, also for
"any other purpose" and the rule of availability of an efficacious and
effective alternate remedy would not operate as a bar, where the
writ petition has been filed for the enforcement of any of the
fundamental rights, or where there has been a violation of the
principle of natural justice or where the order or proceedings are
wholly without jurisdiction or the vires of the Act is challenged.
Similar is the statement of law as made in para 12 of M.P. State
Agro Industries Development Corpn. Ltd. (supra).
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11.2. The contention of availability of an alternate remedy
may not detain us long, in view of the nature of reliefs as are sought
in the writ petitions, which are beyond the purview of Section 27 of
the Army Act, and the fact that none of the reliefs as claimed in the
present petitions, can form the subject matter of any representation/
complaint under Section 27 of the Army Act. The plea of availability
of alternate remedy, is therefore rejected.
ABSENCE OF AUTHORITY
12. The contention by Mr. S.P. Dharmadhikari, learned
Senior Counsel, for the petitioner that under the communication
dated 23/3/2007, the Competent Authority to decide as to whether
or not provisions of Section 123 of the Army Act should be invoked,
in respect of the petitioner, who was holding the rank of Colonel was
the GOC-in-C Command Concerned, as against which, the
communication dated 30/6/2020 indicated that the same had been
invoked by the COAS, and therefore, the invocation, was by an
Officer below the rank as specified in para 4 (b) (i) of the
communication dated 23/3/2007, and for this reason, was legally
incompetent and infirm, cannot be accepted, for the reason, that the
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communication dated 30/6/2020 invoking Section 123 of the Army
Act, against the petitioner, makes a mention of the Competent
Authority having perused the case of the petitioner, had directed
that Section 123 be invoked. The Competent Authority, in terms of
para 4 (b) (i) of the instructions dated 23/3/2007, was the GOC-in-
C Command Concerned, which has to be related to the Competent
Authority, as indicated in the letter dated 30/6/2020. Even
otherwise, para 5 of the instructions dated 23/3/2007, indicates,
that after action under Section 123 of the Army Act, is directed by
the Competent Authority, as mentioned in para 4 (b) (i) of the
instructions dated 23/3/2007, the orders invoking Section 123 of
the Army Act will be issued by the Commanding Officer of the Unit
where the accused last served or the Unit where he may be attached
consequent to the decision of the Competent Authority to invoke the
said section for its trial or by a Superior Officer. It is not a case as if
the General Officer Commanding-in-Chief did not have any
authority in law to invoke Section 123 of the Army Act, as such
authority is there, however, as discussed hereinafter, it was invoked
under a misconception that in the given fact situation, it could be
done.
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13. Section 123 of the Army Act, being material is reproduced
below :-
"123. Liability of offender who ceases to be subject to
Act .- (1) Where an offence under this Act had been
committed by any person while subject to this 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 offence
as if he continued to be so subject.
(2) --------.
(3) -------.
(4) -------."
Section 123 (1) of the Army Act is permissible to be invoked where
(a) an offence under the Act had been committed by any person
while subject to the Act and (b) he has ceased to be so subject, in
which case such person, is liable to be taken into and kept in
military custody and tried and punished for such offence as if he
continued to be so subject. The offences punishable under the Army
Act are listed in Chapter-VI Sections 34 to 70 thereof. The
communication dated 30/6/2020, invoking Section 123 of the Army
Act against the petitioner, does not specify, as to which of the
offences, as listed in Chapter-VI of the Army Act, are alleged to have
been committed by the petitioner, while subject to the Army Act, for
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which he was required to be tried and punished. Even if, there is an
absence of the mention of the offence, which the petitioner is
alleged to have been committed, for which the provisions of
Section 123 of the Army Act were invoked in the communication
dated 30/6/2020, even in the reply, submissions filed by the
respondents on record from time to time, there is no whisper about
which offence has been committed by the petitioner, out of those
listed in Chapter -VI of the Army Act. It is trite to say that when
Section 123 (1) of the Army Act being a penal provision, requiring a
person to be taken into and kept in military custody, thereby
depriving such person of his liberty, more so, when in the instant
case, the petitioner had already superannuated by the noon of
30/6/2020, was invoked, it was thus necessary for the
communications, invoking Section 123 of the Army Act, to make a
mention of the specific offence, which was alleged to be committed
by the petitioner, while subject to the Army Act. The absence of any
such mention in the communications dated 30/6/2020, is telling.
The petitioner or for that matter, any officer, subject to the
provisions of the Army Act is entitled, to be made aware, as to
which offence, is being alleged against him, when the provisions of
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Section 123 of the Army Act are invoked against him, as the
invocation, leads to curtailment of his freedom, guaranteed under
the Constitution. Thus, an officer, cannot be left in the dark, as to
the nature of the offence alleged against him, for which his liberty is
being sought to be curtailed by taking him into military custody, and
it is necessary for the notice invoking Section 123 of the Army Act to
mention which of the offence as contained in Chapter-VI of the Army
Act is being alleged against him.
13.1. The communication dated 23/3/2007, in this regard,
issued by the office of the Additional Directorate General, Discipline
and Vigilance, Adjutant General's Branch, Integrated HQ of MOD
(Army) New Delhi, addressed to the Headquarters and all
Commands of the Army indicates, the circumstances under which
Section 123 of the Army Act, can be invoked. It says that Section
123 of the Army Act is an extraordinary provision to cater for
exceptional circumstances, keeping the need of discipline in mind
and that the spirit of the enabling provision should be maintained by
invoking it judicially after having examined each case from all
possible angles and in any case Section 123 of the Army Act cannot
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be invoked, if formal cognizance has not been taken. It also states
that Section 123 of the Army Act may be invoked in respect of
service persons alleged to have committed serious offences, which
warrant a sentence of dismissal or above. Again, the invocation of
Section 123 of the Army Act is related to the commission of an
offence, which would necessarily indicate the disclosure of the
nature of the offence, which is absent in the communication dated
30/6/2020 in the present matter.
13.2. The entire crux of the matter depends upon the answer
to the question as to whether once an action under Rule 14 (1) (b)
and 14 (2) of the Army Rules, 1954, is taken, would it be
permissible for the respondents, to go back to the stage of
conducting a Court-Martial enquiry, that too, without withdrawing
the action under the above rules and for that purpose to invoke
Section 123 of the Army Act. In the instant case, it is not in dispute,
that on 1/2/2019, a Departmental Court of Inquiry was convened
against the petitioner, which was conducted between 25/2/2019 to
7/3/2019. After 7/3/2019, nothing has been placed on record to
show what has happened thereafter till 16/4/2020, when a show-
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cause-notice was issued to the petitioner, and the petitioner was
informed that the Chief of Army Staff was of the opinion that the
further retention of the petitioner in the territorial army was not
desirable and in accordance with the directions of the Chief of Army
Staff the petitioner was so informed in terms of Rule 14 of the Army
Rules and on behalf of the Chief of Army Staff, the petitioner was
called upon to submit an explanation and defence as to why his
services should not be terminated under the provisions of Rule 14 of
the Army Rules 1954 read with Rule 14 (c) of the T.A.
(Amendment) Rules 1964. It was also stated that in case no
explanation was submitted by the petitioner during the stipulated
period, it shall be presumed that the petitioner had no ground to
urge in favour of his retention in the service. A copy of the Court of
Inquiry was enclosed with the letter dated 16/4/2020. What is
material to note is that the copy of the Court of Inquiry as enclosed
with the letter dated 16/4/2020, indicates, that the court was
assembled on 25/2/2019 and subsequent days, in which witnesses
were examined pertaining to the issues and period as relevant vide
the convening order and since the character and military reputation
of the petitioner was involved the provisions of Rule 180 of the
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Army Rules, 1954 were invoked and the proceedings of the Court of
Inquiry as enclosed with the letter dated 16/4/2020 contains a
certificate regarding compliance of Rule 180 of the Army Rules,
which states that an adequate opportunity was provided to the
petitioner, to make a statement, to give any evidence, to produce
any witness in his defence, to cross-examine/cross-question any
witness and to remain present throughout the proceedings of the
Court of Inquiry. It is thus evident that the Court of Inquiry was
convened and conducted in respect of the charges against the
petitioner, on 25/2/2019 and subsequent days, which was pursuant
to the order dated 1/2/2019, as amended by the letters dated
1/2/2019 and 28/2/2019.
13.3. Rule 14 of the Army Rules, 1954, being material is
reproduced as under :-
"14. Termination of service by the Central Government
on account of misconduct .-(1) When it is proposed to
terminate the service of an officer under section 19 on
account of misconduct, he shall be given an opportunity to
show cause in the manner specified in sub-rule (2) against
such action-
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Provided that this sub-rule shall not apply-
(a) where the service is terminated on the ground
of misconduct which has led to his conviction by a
Criminal Court; or
(b) where the Central Government is satisfied that
for reasons, to be recorded in writing, it is not expedient
or reasonably practicable to give to the officer an
opportunity of showing cause.
(2) When after considering the reports on an officer's
misconduct, the Central Government, or the Chief of the
Army Staff is satisfied that the trial of the officer by a
Court-Martial is inexpedient or impracticable, but is of the
opinion, that the further retention of the said officer in the
service is undesirable, the Chief to the Army Staff shall so
inform the officer 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 Staff 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.
In the event of the explanation of the officer being
considered unsatisfactory by the Chief of the Army Staff,
or when so directed by the Central Government, the case
shall be submitted to the Central Government, with the
officer's defence and the recommendation of the Chief of
the Army Staff as to the termination of the officer's service
in the manner specified in sub-rule (4).
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(3) Where, upon the conviction of an officer by a
Criminal Court, the Central Government or the Chief of
the Army Staff considers that the conduct of the officer
which has led to his conviction renders his further
retention in service undesirable a certified copy of the
judgment of the Criminal Court convicting him shall be
submitted to the Central Government with the
recommendation of the Chief to the Army Staff as to the
termination of the officer's service in the manner specified
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 Staff shall make his recommendation
whether the officer's services should be terminated, and if
so, whether the officer should be-
(a) dismissed from the service; or
(b) removed from the service; or
(c) compulsorily retired from the service.
(5) The Central Government after considering the reports
and the officer's defence, if any, or the judgment of the
Criminal Court, as the case may be, and the
recommendation of the Chief of the Army Staff, may-
(a) dismiss or remove the officer with or without
pension or gratuity; or
(b) compulsorily retire him from the service with
pension and gratuity, if any, admissible to him."
It is thus apparent that Rule 14 (1) of the Army Rules,
is invoked, when it is proposed to terminate the service of an officer
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on account of misconduct, for which a show-cause-notice is required
to be given to such officer. The proviso to Rule 14 (1), however, says
that such a show-cause-notice would not be necessary, in case (a)
the termination is on the ground of misconduct which has led to his
conviction by a Criminal Court or (b) where the Central
Government is satisfied for reasons to be recorded that it is not
expedient or reasonably practicable to give an opportunity to show-
cause. In the instant case, a show-cause-notice was given, which
mentioned Rule 14 of the Army Rules, 1954, which could only relate
to Rule 14 (2) of the Army Rules, 1954. A perusal of Rule 14 (2) of
the Army Rules, 1954, indicates, that the same can be invoked only
when the Central Government or the Chief of Army Staff is satisfied
that the trial of the officer by a Court-Martial is inexpedient or
impracticable, and is also of the opinion that the further retention of
the officer is undesirable, in which case the Chief of Army Staff is
required to so inform the officer, together with all reports adverse to
him and to submit in writing his explanation and defence. It is thus
apparent, that when provisions of Rule 14 (2) of the Army Rules,
1954 were invoked in the instant case, in pursuance to which the
show-cause-notice dated 16/4/2020 was issued, the opinion of the
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Chief of Army Staff, to the effect that the trial of the
officer/petitioner by a Court-Martial was inexpedient and
impracticable, was already formed, and it is only after this, that the
decision to invoke the provisions of Rule 14 (2) of the Army Rules,
1954, was taken. In fact, a plain reading of para 3 of the show-
cause-notice dated 16/4/2020 clearly indicates that such an opinion
as required by Rule 14 (2) of the Army Rules, 1954 that the trial of
the petitioner by a Court-Martial, was inexpedient or impracticable
and that the further retention of the said officer in the service was
undesirable, was the basis for issuance of the show-cause-notice
dated 16/4/2020, which also makes a reference in the preceding
paragraphs therein about the proceedings of the Court of Inquiry.
13.4. It is thus, evident, that the invocation of Rule 14 (2) of
the Army Rules, 1954, was only upon the satisfaction of the Chief of
Army Staff, as regards the requirements of Rule 14 (2) of the Army
Rules and not otherwise. What is necessary to be noted, is the
difference, of termination in pursuance to a Court of Inquiry and
termination by invoking the powers under Rule 14 (2) of the Army
Rules, 1954. The nature of a termination by invoking Rule 14 (2) of
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the Army Rules, read with Section 19 of the Army Act, is an
administrative termination, as against which termination in
pursuance to a Court-Martial is a penal termination. The
administrative nature of the termination under Section 19 of the
Army Act read with Rule 14 (2) of the Army Rules, is clearly
indicated from the very fact, that in spite of a Court of Inquiry
having been commissioned, an opinion is formed by the Chief of
Army Staff, that the trial by Court-Martial is inexpedient or
impracticable, thereby doing away with the further process of the
Court-Martial, apart from which, this is so indicated by the
communication dated 30/9/2003, by Additional Directorate
General, Disciplinary and Vigilance, Adjutant General's Branch,
Army Headquarters, New Delhi, the relevant portion of which reads
as under :-
"7. Invoking of AA Section 19 read with AR 14 (2)
involves the following steps :-
(a) Discipline is a command function. Therefore, the
competent Disciplinary Authority has to be satisfied on the
basis of various reports. Court of Inquiry etc. that trial of
an accused by Court-Martial is inexpedient or
impracticable on the grounds other than probable failure
to establish charges against him and that further retention
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of the accused in service is not desirable. The disciplinary
authority has to exhaust his powers before recommending
administrative termination of service of an Officer under
AA Section 19 read with AR 14 (2). The essential feature
of such a recommendation is that there is sufficient
evidence to prove the charges but still trial by Court-
Martial is considered inexpedient or impracticable. The
disciplinary authority has to justify his decision to
recommend invoking of AA Section 19 read with AR
14 (2).
(b) The disciplinary authority makes his
recommendation to the COAS to invoke AA Section 19
read with AR 14 (2).
(c) The COAS considers the recommendations
and if satisfied makes his opinion to invoke the said
provisions and causes issuance of a SCN to that effect to
such an Officer concerned.
(d) The reply of the Officer alongwith
recommendations/comments of the Cdrs in Chain of
Command are considered and appropriate orders are
issued by the COAS or the Central Government as the case
may be.
8. In view of the foregoing, it has now been
decided that in all such cases where the directions of the
COAS to terminate the services of an Officer in terms of AA
Section 19 read with AR 14 (2) are to be obtained, the
formation concerned would also forward a detailed
justification duly recommended by Cdrs in Chain of
Command on format appended herewith, which should
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include the reasons as to why trial of the Officer by Court-
Martial is impractical or inexpedient as detailed in the
preceding paragraphs alongwith the case/records and
reasons recommending termination of the services of an
Officer.
9. The contents of this letter may please be
widely disseminated."
13.5. It is thus apparent, that the entire idea of proceeding
ahead with the Court-Martial, against the petitioner, came to be
dropped, by invoking the provisions of Rule 14 (2) of the Army
Rules, 1954, by the respondents, in view of the opinion as formed
by the Chief of Army Staff, which was the position as it stood on
16/4/2020. It was thus expected, considering that the respondents
were aware that the date of superannuation of the petitioner was
30/6/2020, for the respondents, to act in consonance with Rule 14
(4) of the Army Rules, 1954, i.e. to submit to the Central
Government the recommendation of the Chief of Army Staff, as to
whether the officer/petitioner should be (a) dismissed from service;
or (b) removed from service; or (c) compulsorily retired from
service, consequent to which as per sub-rule 5 of Rule 14 of the
Army Rules, 1954, the Central Government after considering the
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reports and the defence of the officer, and the recommendation of
the Chief of Army Staff could either (a) dismiss or remove the
officer with or without pension or gratuity or (b) compulsorily retire
the officer from service with pension and gratuity, if any, admissible
to him.
13.6. In the instant matter, nothing is placed on record by the
respondents as to any action, which is required to be taken under
Rule 14 (4) and (5) of the Army Rules, 1954, which was necessary,
in view of the fact, that the show-cause-notice dated 16/4/2020
invoked Section 19 of the Army Act, in conjunction with Rule 14 (2)
of the Army Rules, 1954 categorically indicating that the petitioner
was intended to be dismissed or removed from service. In our
considered opinion, if this was the intention, to either remove or
dismiss the petitioner from the service, as was indicated by
invocation of the powers under Section 19 of the Army Act read
with Rule 14 (2) of the Army Rules, 1954, it was necessary for the
respondents to have acted in consonance with the requirements of
Rule 14 (4) and (5) of the Army Rules, 1954, before 30/6/2020, the
date on which the petitioner was to superannuate. However, nothing
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in this regard appears to have been done, till 30/6/2020, as is
apparent, from the absence of any material in this regard being
placed on record. So also, nothing has been placed on record, as to
why, in spite of the fact, that the action under Rule 14 (2) of the
Army Rules, 1954, not having been reversed, how and in what
manner, and under what authority or powers, the petitioner, was
being sought to be proceeded ahead with the Court of
Inquiry/Court-Martial. In our considered opinion, to justify such an
action, it was necessary for the respondents, to place on record,
something which would have indicated, the withdrawal of the action
under Rule 14 (2) of the Army Rules, read with Section 19 of the
Army Act, however, there is absolutely nothing. When a specific
query was made in this regard, as to whether there were any
additional charges levied against the petitioner, the response was
that the enquiry as initiated upon the original charges as contained
in the show-cause-notice dated 16/4/2020 which was prior to the
action under Rule 14 (2) of the Army Rules read with Section 19 of
the Army Act, was being continued without there being any, change
or addition in the nature of charges. This is clearly inexplicable, for
the reason, that once the Chief of Army Staff, in exercise of the
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powers as conferred upon him under Rule 14 (2) of the Army Rules,
1954 forms an opinion that any trial by Court-Martial was
inexpedient or impracticable, and at the same time is of the opinion
that the further retention of the said officer in the service is
undesirable, then the course to follow would be as laid down in
Rules 14 (4) and 14 (5) of the Army Rules, 1954. No provision, Rule
has been pointed by the learned ASGI, Mr. Ulhas Aurangabadkar, to
indicate otherwise, or for that matter, that the further course of
action, as indicated in Rules 14 (4) and 14 (5) of the Army Rules,
1954, can be abandoned at the drop of a hat and the course
reverted back, to a trial by Court-Martial, that too without there
being any additional material being considered. This is so, for the
apparent reason, that while forming the opinion under Rule 14 (2)
of the Army Rules, 1954, the Chief of Army Staff has already
considered the basis of the allegations made, charges leveled,
material available, and the reports on an officer's misconduct, which
would include the report of the Court of Inquiry, and after applying
his mind to all this, has come to the conclusion that the trial of the
officer by Court-Martial on the basis of the material which is
available, is inexpedient or impracticable. Thus, when the
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charges/allegations/report remain the same, which were duly
considered for forming of the opinion under Rule 14 (2) of the Army
Rules, 1954, then unless, it is demonstrated, that something
additional has been found, which has a material bearing upon the
charges/allegations leveled against the officer or affects the efficacy
of the report of the Court of Inquiry, the clock cannot be turned
back, to prosecute the officer by a trial by Court-Martial. No such
plea has been made in the submissions as placed on record by the
respondents, which clearly indicates that the action now of reverting
back from the position of Rule 14 (2) of the Army Rules, 1954, as
was taken earlier, is clearly unsustainable in law. After all, a decision
taken in terms of sub-rule 1 & 2 of Rule 14 of the Army Rules 1954,
seeking administrative termination has civil consequences and,
therefore, if any other action than prescribed in this rule is proposed
to be taken, it would amount to review of the decision, which is not
permissible, unless there is conferred in the rules express power of
review or there are available on record new circumstances or new
grounds which have emerged subsequent to taking of the decision
under sub-rule 1 & 2 of Rule 14 of the Army Rules 1954. In the
present case, both of these factors are absent.
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13.7. It is further trite to note that Rule 22 and 23 of the
Army Rules, 1954 indicate the conduct of an enquiry, which can be
said to be in the nature of a preliminary enquiry, based upon the
findings of which, the Commanding Officer, may choose to adopt
any of the courses of action as indicated in Clause (a) to (c) of Rule
24, which includes remanding the accused for trial by a Court-
Martial. It is thus apparent that the Army Act and the Rules framed
thereunder, contemplate a preliminary enquiry, under Rule 22 or
Rule 177 of the Army Rules 1954, based upon the findings of which,
the decision whether to initiate a Court-Martial, has to be taken. In
the instant case, as is evident, a Court of Inquiry duly convened
under the letter dated 1/2/2019 had held its sittings from
25/2/2019 to 7/3/2019, in pursuance to which, a report was
submitted. This report and other material placed before the Chief of
the Army Staff, was considered inexpedient for directing the trial of
the officer by Court-Martial, in view of which, in our considered
opinion, it would not have been permissible for the invocation of
Rule 22 (1) of the Army Rules, 1954, for the reason, that the proviso
thereto, requires the Commanding Officer, to consider the report of
the Court of Inquiry, which in the present matter, having already
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been considered by the Chief of the Army Staff, who upon due
consideration, having come to an opinion, that the trial by Court-
Martial, was inexpedient and impracticable, based upon the material
before him, the Commanding Officer, being an Officer Subordinate
to the Chief of the Army Staff, would be bound by the opinion of his
ultimate superior. It is in light of the above position that the action
of invoking Section 123 of the Army Act, is to be considered as
when once a decision to invoke Rule 14 (2) of the Army Rules 1954,
was taken considering the factual position and the material available
on record, the invocation of Section 123 of the Army Act, clearly
appears to be under some misconception that the same could have
been done, on account of a purported enquiry under Section 22 of
the Army Act, which was never commenced.
13.8. The reliance on Ex-Capt. Ashwani Kumar Katoch
(supra) by Mr. Ulhas Aurangabadkar, learned ASGI to contend that
in case of invocation of Rule 14 (2), it is permissible for the show-
cause-notice to be waived off by the Central Government, upon
being satisfied that it is inexpedient or impracticable, for reasons to
be recorded in writing, is of no assistance to the contention as
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advanced by him, for the reason, that in the instant matter, a show-
cause-notice under Rule 14 (2), was indeed issued to the petitioner
on 16/4/2020.
13.9. Similarly, the judgment of the Armed Forces Tribunal in
Lt. Gen. Avadhesh Prakash (retd.) (supra) also does not assist the
learned ASGI, for the reason, that what was in challenge therein was
an order convening of the Court of Inquiry and its proceedings along
with findings and opinion, leading to invocation of the provisions of
Section 123 of the AFT Act, 2007 against the petitioners in that case,
as against which there is no such challenge raised in the present
petitions.
13.10. It is not in dispute, that on 30/6/2020, the petitioner
retired from service on attaining the age of superannuation. The
petitioner avers that all formalities in so far as handing over of
charge, were completed by 12:00 noon, which is not disputed by the
respondents. It is only on 30/6/2020, that the provisions of
Section 123 of the Army Act, were invoked against the petitioner,
the e-mail message in respect of which is placed on record at
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Annexure-32/pg.30 of compilation, which is addressed to the 116,
INF BN (TA) (H & H) Assam, the timing of receipt of which is
20:06:51, by which time the petitioner already stood
superannuated. The communication about invocation of Section 123
of the Army Act, was hand delivered to the petitioner on 1/7/2020
at 12.20 hours which is apparent from the endorsement made upon
the communication in this regard dated 30/6/2020 (Annexure- 32/
pg.28 of the compilation). The communication about invocation of
Section 123 of the Army Act, cannot halt the superannuation of the
petitioner, which occurred on 30/6/2020. Even otherwise,
Section 123 of the Army Act, does not have any effect, upon the
superannuation of any person subject to the Army Act. The
petitioner, therefore, would be entitled to a declaration that he stood
superannuated on 30/6/2020. In view of the averment of the
petitioner, that all formalities in so far as handing over of charge,
were completed by 12:00 noon, which is not disputed by the
respondents, the effect of which is that the petitioner stood relieved
from the post, the question of issuing any direction in this regard
does not arise at all.
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13.11. Writ Petition No.2113/2020, therefore will have to be
allowed in terms of prayer clause (b) and part of prayer clause (c)
as indicated above and is so allowed.
14. In view of what we have stated above, regarding the
action initiated under Section 19 of the Army Act, read with Rule 14
(2) of the Army Rules, 1954, and the consequent action require to
be taken in pursuant thereto as contemplated by Rules 14 (4) and
(5) of the Army Rules, 1954, we do not think, that the any enquiry,
based upon the original charges, as contained in the show-cause-
notice dated 16/4/2020 can be permitted to be continued, in
absence of any fresh material or any fresh charges, particularly, in
view of the admission by the respondent nos.1 to 4, that the
subsequent action would be initiated on no new grounds, but only
on the grounds as contained in the earlier show-cause-notice dated
16/4/2020, in respect of which already an opinion has been
rendered by the Chief of Army Staff, of proceeding under Rule 14
(2) of the Army Rules, 1954, for the purpose of administratively
terminating the services of the petitioner. In that light of the matter,
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Writ Petition No.1796/2020 is allowed in terms of prayer clause (e)
alone, as notices have been issued only to the respondent nos.1 to 4.
15. The question of liberty of a citizen, as guaranteed under
Articles 19 and 21 of the Constitution of India has always been very
close to the heart of the Apex Court and the High Courts, who have
zealously guarded this liberty throughout. No doubt, reasonable
fetters can always be placed upon such liberty, but even the
reasonableness of such fetters, can always be tested by the Courts.
The issue has been considered by the Courts in various judgments,
time and again, including those cited by Mr. S. P. Dharmadhikari,
learned Senior Counsel for the petitioner. The position in this regard
as spelt out is that if the detention is under judicial orders or is
traceable to a power conferred under a provision of a statute, the
same cannot be termed as illegal, unless, it is demonstrably per se
illegal or without jurisdiction.
15.1. The plea of deprivation of right to liberty, as raised in the
Criminal W.P. No.289/2020, is on account of invocation of Section
123 of the Army Act, which resulted in the detention of the
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petitioner at military station Thakurbari near Tezpur Assam on
1/7/2020 till 23/7/2020, on account of his release on 24/7/2020,
as directed by this Court by an interim order dated 24/7/2020,
upon furnishing an undertaking that he would make himself for
available for trial.
15.2. It would be apparent that Section 123 of the Army Act,
empowers and authorizes, a person, who is alleged to have
committed an offence, while being subject to the Army Act, but has
ceased to be subject to the Army Act, to be kept in military custody
and tried and punished for such offence, as if he continued to be so
subject. Thus, any detention of a person by the respondents, directly
relates, to the power as conferred in this regard under Section 123
of the Army Act. In our considered opinion, till such time the
detention can be related to any order by an Authority flowing from
a statute, the same cannot be illegal. However if the order is found
to be without jurisdiction or illegal, then the detention would of
course have to be declared as illegal too.
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15.3. In the instant matter it is upon invocation of Section
123 of the Army Act, that the petitioner was taken into custody. The
custody of the petitioner, is therefore directly traceable to the power
under Section 123 of the Army Act and thus cannot be said to be
without authority. The purpose of custody of the petitioner, as is
now apparent, was for ensuring the presence of the petitioner, in the
enquiry, which was proposed to be held. Thus, the custody of the
petitioner for the above duration cannot be held to be illegal or for
that matter without authority. It is a different case altogether that
the invocation has now been found to be not proper upon the
interpretation of the factual position upon the touchstone of rule 14
(2) of the Army Rules. This being the case Criminal Writ Petition
No.289/2020, therefore fails.
16. Since the petitioner has already been enlarged from
custody by an interim order of this Court dated 24/7/2020, and we
have allowed Writ Petition No.2113/2020 and Writ Petition
No.1796/2020 to the extent as indicated above, there is now no
further need for any custody of the petitioner and no further orders
need to be passed in that regard, except that the petitioner who is
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already released, under this Courts order dated 24/7/2020, now
stands a free man.
All applications stand disposed of accordingly.
Rule made absolute in the aforesaid terms. No order as
to costs.
(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE, J.)
Wadkar
