O.P. Gupta vs Union Of India And Ors.
1987 Latest Caselaw 391 Del

JUDGMENT

S. Ranganathan, J.

(1) The petitioner joined the Army as a Commissioned Officer in the Corps of Engineers. In November, 1982, he became an Acting Major and on 17.9.1983 he was posted as Deputy Commander Works Engineer (E & M) at Jalandhar Cantonment.

(2) It appears that the petitioner had been complaining to the authorities from time to time about acts of corruption, malpractices and financial irregularities on the part of the officials of the Military Engineering Service at various places. There were also certain allegations against the petitioner. The competent authority, by an order dated 21st August, 1985 convened a Court of Inquiry to consider the petitioner's allegations against one Lachman Ram as well as a number of allegations against the petitioner. The Court of Inquiry conducted an enquiry and submitted its findings to the concerned authorities.

(3) It is common ground that a decision was taken that disciplinary proceedings should be instituted departmentally against the petitioner. Army Instruction 106/60 provides that "officers against whom disciplinary action is contemplated may, where necessary, be attached to other units at the discretion of Army Headquarters, for the purpose of investigation and progress of the disciplinary cases". In the light of this rule , the G O C, Western Command issued on 13.1.1986, a Signal addressed, inter alia, to the Commanding Works Engineer, Jalandhar and the petitioner was relieved of his duties as acting Major on 14.1.1986. Since the proper interpretation of this signal has been the subject matter of debate before us, it will be useful to set it out here in extenso : "The Att Offer under Sia 106/60 (......) following Att ordered with immediate effect (...) firstly (...) Ic-32430 X Maj Op Gupta comma Dcwe E/M Jalandhar Att with Sup Dep Asc Jalandhar (....) Secondly (......) date of report new unit will be intimated to all concerned (...) Thirdly (...) regarding relinquishment of acting rank Attention invited to Sai 1/s/64 (...) Fourthly (...) Ack (...) Indian army (3) Dv-2 and Ms 1) only (...) all add'. The petitioner was given a movement order from Cwe (Jallandhar) to Asc (Jallandhar) on 16.1.1986 on the basis of the above signal.

(4) Special Army Instruction (SAI) I/S/74 referred to in the above "order of attachment" is of some importance and needs to be extracted to the extent relevant for our purposes. Paragraph 1 of the above Sai, issued on 9.1.1974, reads : "Acting Promotions Officers 1. An officer selected to fill an appointment carrying a rank higher than his substantive rank or acting rank (if he is holding such a rank) will be granted acting promotion to the rank carried by the appointment, provided he has completed the following minimum total period of reckonable service as a Commissioned Officer ..." and the total period of service prescribed for appointment as Major is 6 years which the petitioner herein admittedly possesses. The rules relating to "grant, retention and relinquishment of paid acting grant" are contained in Appendix A to Sai, It is seen from these rules that an officer selected for grant of acting promotion will be granted the appropriate acting rank from the date he actually performs the duties of the appointment and he will be paid for it if he holds the rank for 21 consecutive days. This the petitioner in this case has done. Paragraph 4 of the Appendix provides that acting rank will be retained so long as an officer is actually performing the duties of the appointment in respect of which such rank was granted except in certain cases. One of these cases is mentioned in sub-paragraph 7, which has since been amended in 1976 and reads thus : "7. Officers under arrest and suspension from duty attached to another unit for disciplinary purposes- (a) An officer who ceases to carry out the duties of his appointment through being placed under open or closed arrest or by suspension......will vacate his appointment and relinquish any acting rank after 21 days ...... An officer ceasing to carry out the duties of his appointment by being attached to another unit for disciplinary purposes will similarly vacate his appointment and relinquish acting rank, if any, after 3 months from the date of his attachment or after 21 days from the date of receipt of the directions of the competent authority on the recommendations of the Court of Inquiry to initiate disciplinary action against him, whichever is earlier; (b) If the officer is subsequently acquitted or for any reason is not brought to trial or his character is vindicated to the satisfaction of the appropriate authorities at Army Headquarters vide such enquiry as is made under paragraph 345 of the Regulations for the Army 1962, he may be reappointed-- (i) at the discretion of the authority, whichever is superior, who ordered the suspension/arrest/attachment or took a decision to dismiss the charge or confirm the acquittal, to the post vacated by the officer, if it has remained unfilled. The acting rank of the officer will then be deemed to have been held by him continuously with effect from the date he relinquished it. (c) If such an officer is convicted and receives a sentence of less than dismisssal, he may, at the discretion of the Division, Area or Independent Sub Area Commander, be reappointed from the date he returns to duty."

(5) According to the respondents, on a conjoint reading of the signal dated 13.1.1986 and SAI/I/S/74. the petitioner "relinquished" his acting rank on 7.2.1986 (i.e., the expiry of 21 days from the date of attachment, viz., 16.1.1986) but the petitioner failed to do so. Hence this Commandant of 'the Asc wrote a letter dated 19.3.1986 by which "advised" the petitioner to relinquish his acting rank and revert back to his Substantive rank (of Captain) without any further delay. This was followed by two specific directions to the same effect on 26.4. 1986 and 29.4.1986.

(6) In the meantime, the authorities were taking action pursuant to the report of the Court of Inquiry against the petitioner. On 31.3.1986, a tentative charge-sheet was issued to the petitioner. Four of these were charges on matters that had been referred to in the order convening the Court of Inquiry. In addition the authorities charged that the petitioner had refused to attend the Court of Inquiry on 8.10.1985 and 9.10.1985 at the Headquarters of the Jallandhar Sub-Area .and this was added as one of the tentative charges. On 19.6.1986, one more tentative charge was levelled against the petitioner in that, despite the letter dated 19.3.1986, the petitioner had not relinquished his acting rank and continued wearing the badges of rank of Major in defiance of orders. On 2.9.1986, a revised "tentative charge sheet" was given to the petitioner in which one of the four charges of the earlier charge sheet of 31.3.1986 was given up and only the other five charges of the charge sheet of 31.3.1986 were reiterated. However, on 21.2.1987, a final charge sheet was given. This contained only two charges : (1) Failure to attendbeforetheCourtofInquiryon9.10.1985 without sufficient cause; and (2) Improper and unauthorised use the badges of the rank of Major despite "having relinquished the acting rank of Major". Thereafter, the petitioner was tried summarily on 25.2.1987 and was given a "severe reprimand".

(7) The disciplinary proceedings having thus come to an end, the petitioner reverted from the Asc to the CWE. An order was passed on 28.2.1987 that "on reversion back...... Major 0. P. Gupta will assume the appointment of Dcwe ...with immediate effect". A corrigendum was, however, issued on 19.3.1987 to the above order by referring to the petitioner as "Cap. O.P. Gupta" and referring to his posting as on one "to officiate as Dcwe with immediate effect". Subsequently by an order dated 27.4.1987, served on the Cwe on 2.5.1987, the petitioner was transferred to an existing vacancy of Captain in the Engineers' Regiment, Ongc at Baroda. This order made the petitioner's transfer effective from 10.7.1987 but by an order dated 4.5.1987 of the Jallandhar Office, he was directed to be relieved on 30.5.1987 itself.

(8) The petitioner initially filed a suit in the sub-court at Jallandhar on 7.4.1986 but withdrew the same on 2.1.1987 "as the remedy was not proving efficacious". He then filed this writ petition on 3.2.1987 for a declaration that the Court of Inquiry proceedings against the petitioner and the order of attachment are invalid and illegal. During the pendency of the petition, subsequent events, as detailed above have transpired. The petitioner has made no application for amendment of the writ petition but has raised contentions at the time of hearing, against the punishment of "severe reprimand" imposed on him on 25.2.1987 as well as the subsequent attempts to treat him as a Captain and to transfer him to a post tenable by a Captain. The contention is that, if the Court of Inquiry proceedings and attachment are held invalid, as prayed for in the writ petition, the punishment imposed as well as further action sought to be taken by the respondents against the petitioner will fall through and the petitioner should be held entitled to continue, without a stigma on his character, as acting Major in Cwe Jallandhar or at such other place to which he may be transferred as an acting Major. We have heard arguments on both sides as some length and having regard to the fact that this is a matter of the Services and also to the narrow scope of the controversy between the parties, we consider it will be more satisfactory to finally dispose of the writ petition itself. We, therefore, issue rule, D.B. and proceed to dispose of the writ petition itself after hearing both counsels.

(9) The principal attack of counsel for the petitioner is against the Court of Inquiry proceedings as, according to him, if this contention is accepted, the attachment, forfeiture of acting rank, disciplinary proceedings and order of punishment, being consequential, will all have to fall. For this contention, counsel strongly relies on Army Rules 180 and 184 which occur Chapter Vi of Rules the headed "Court of Inquiry" and outline the procedural' safeguards to be observed by a Court of Inquiry.

(10) Army Rule 180 reads thus : "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 affects the character or military reputation of a person subject to the Act, full opportunity must be afforded 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, affects his character or military reputation and producing any witnesses in defense of his character or military reputation' The presiding officer of the court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified, receives notice of and fully understands his rights, under this rule." The importance of this rule, which is quite/clear on its terms, has been further emphasised by administrative instructions issued by the authorities. They point out: "Whenever it appears possible that the character or military reputation of a person subject to Army Act may be affected as the result of the Court of Inquiry, the authority who assembles the Court of Inquiry will take all necessary steps to secure that the provisions of this rule are observed. The ultimate responsibility of ensuring that they are observed every case will, however, rest upon the presiding officer of the Court of Inquiry and should it transpire during the sitting of the Court that the character or military reputation of any person subject to Army Act is affected by the evidence put forward, the presiding officer, will immediately arrange for such person to be afforded the full facilities of the rule, adjourning the Court if necessary for the purpose of securing his attendance."

(11) Rule 184 was originally in the following terms : "184 Right of certain persons to copies of proceedings The : following persons shall be entitled to a copy of the proceedings of a Court of 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 Staff, affected by anything in the evidence, before, or in the report of a Court of Inquiry, unless the Chief of Army Staff sees reason to order otherwise." The rule has been amended, recently, to read thus : "184. Right of certain persons to copies of statements and documents : (1) Any person subject to the Act who is tried by 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 defense at his trial. (2) Any person subject to the Act whose character or military reputation is affected 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 Army Staff, for reasons recorded by him in writing, orders otherwise," Learned counsel complains that these provisions have not been complied with in the present case.

(12) We find there is force in the submission of the learned counsel. The provisions of rules 180 and 184 only incorporate the principles of natural justice and, in doing so, are couched in the widest terms possible. It will be seen that the provisions of rule 180 protect the rights not merely of an officer charges against whom may be the subject matter of enquiry; they are so widely worded as to ensure that any army officer, whose character or military reputation is affected by any evidence given at the enquiry should be given an opportunity, to be present so as to hear such evidence, cross-examine the witnesses who give such evidence and also lead such evidence to clear himself as he may like to. In fact, the instructions expect the officer who assembles a Court of Inquiry to make arrangements for attendance before it of officers a possibility of whose character or military reputation being affected exists. A like responsibility is laid on the presiding officer of the Court of Inquiry to ensure that any officer who will be affected by its proceedings of report is given a full opportunity of presence, defense and cross-examination. Rule 184 provides for copies of statements and documents affecting him being made available to such an officer. This rule is primarily intended to enable the officer to defend himself or safeguard his interests at a court-martial or disciplinary proceedings that may follow as a consequence of the Court of Inquiry. But its terms are wide enough even to enable an officer to apply for and obtain copies in the course of the enquiry itself. The respondents were, therefore, bound to strictly comply with these rules and ought to have allowed the petitioner- (a) to be present throughout the enquiry; (b) to cross-examine the witnesses who gave evidence; and (c) to lead such evidence as he desired in defense of his character and reputation. Unfortunately, it seems, this was not done. In response to our queries, Sri Watwani admitted that the petitioner had not been permitted to be present throughout the enquiry or to cross-examine all the witnesses. It seems he was allowed only to remain outside the room in which the Court of Inquiry was held. Though it is said that he was allowed to cross-examine two of the witnesses, he was admittedly not present when these persons gave their evidence. Even that opportunity of cross-examination was not given in respect of the other witnesses. Sri Watwani submitted that the Court of Inquiry was a combined one in respect of charges against the petitioner and some others and sought to urge that, though there as many as 47 witnesses, only two of them deposed against the petitioner. But even this contention is not tenable. In the first place, the Court of Inquiry was a single one and cannot be treated as two separate inquires. Moreover, even the charges against the others were based on the petitioner's complaints and any evidence thereon had also a bearing on his character. That apart, Sri Watwani conceded that the petitioner had not been given an opportunity to cross-examine some of the witnesses (such as a milkman or officers the mess referred to in the charges against the petitioner). Sri Watwani says that, after the enquiry was over, the petitioner was given extracts of the proceedings of the Court of Inquiry and relevant portions of its findings. But we are constrained to hold that there was not sufficient and strict compliance with the provisions of Rules 180 and 184.

(13) The question, however, is whether the attachment and disciplinary proceedings against the petitioner should be set aside on the ground that the Court of Inquiry proceedings are vitiated for the reasons discussed above. Counsel for the petitioner submits that the decision to initiate disciplinary proceedings was, even according to the respondents, a direct consequence of the findings of the Court of Inquiry and that the respondents framed three sets of different charges on the basis of the said findings. He also points out that, according to the respondents, the petitioner's attachment having been made on 16.1.1986, he should have given up bids rank on 7.2.1986 by virtue of the signal dated 13.1.1986 but that this overlooks that, apart from the findings of the Court of Inquiry being vitiated for the reasons discussed earlier, the signal does not contain "any directions of the Competent Authority" within the meaning of SAI/I/S/74. He, therefore, argues that the attachment order and disciplinary proceedings, including the order of punishment, should be set aside.

(14) In dealing with this contention, we think it will be convenient, before discussing the legality of the attachment, to discuss the question of the validity of the disciplinary proceedings in this case. Under the Army Act and Army Rules, Courts of Inquiry are set up whenever it is considered necessary to investigate into certain facts and matters. The findings of such courts may lead to a Court Martial or disciplinary proceedings or other consequences. But the holding of a Court of Inquiry is not a necessary preclude to the convening of a Court Martial or conduct of a disciplinary enquiry against an officer in respect of whom there may be allegations and complaints. This has been explained clearly in para 41 of the decision of the Supreme Court in Prithi Pal Singh v. Union of India . In this case disciplinary action has been finally taken against the petitioner only in respect of two charges. These were : (1) that he failed to appear before the Court of Inquiry on 9.10.1985 without sufficient cause; and (2) that having relinquished the acting rank of Major (vide para 7 of SAI/I/S/74 as amended by Ai 2/76), he continued, improperly and without authority, to wear the badges of the rank of Major. These two charges, it will be seen, are quite independent of the facts which were referred to the Court of Inquiry for investigation. The Commanding Officer summarily disposed of these charges by imposing a punishment of 'severe reprimand'. The validity of this summary disposal does not, in our opinion, depend on the regularity or otherwise of the Court of Inquiry proceedings. If the petitioner absented himself, without sufficient cause, from the Court of Inquiry, the validity of the constitution of which is not in issue before us and if the petitioner continued to wear the badge of a Major even after he was obliged to relinquish it under the rules and instructions, then the continuance of the proceedings against him and their summary disposal would, in our opinion, be perfectly valid, notwithstanding any irregularities that may have occurred in the enquiry conducted by the Court of Inquiry in relation to certain facts and allegations which have not been pursued further than the stage of the two tentative charges of 3 March, 1986 and 2nd September, 1986. The conduct of the disciplinary proceedings and their summary disposal are not, therefore, in our opinion, vitiated in any manner. So far as the actual punishment of "severe reprimand" is concerned we shall say nothing here for reasons to be mentioned later.

(15) Now we come to the question of attachment. Counsel for the petitioner submits that the order of attachment was issued on 13.1.1986 as a-result of the findings of the Court of Inquiry and that, once we find that the proceedings of the Court of Inquiry were irregular, we should set aside the attachment. We are unable to accept this contention. Whenever it is decided to institute disciplinary proceedings against an officer, there is a discretion in the competent authority to direct his attachment to some particular unit. The order of attachment is a consequence of a factual situation. All that it means is that some disciplinary proceedings are being contemplated against the officer and it will, therefore, be administratively convenient to take him away from his regular unit and attach him to a different unit for the purposes of the convenient conduct proceedings against him. Per se, it is nothing more than an order of temporary transfer of an officer from one unit to another. Its validity cannot depend on the final outcome of these proceedings though the attachment will cease and the officer will be given proper orders of posting depending upon such outcome. We do not think that a direction of attachment would fall merely because ultimately some defect is found in the constitution or proceedings of the Court of Inquiry in consequence of which it is ordered. Even if we assume that such a result may follow in a case where the charges framed against the officer eventually in the disciplinary proceedings are entirely based on the findings of the Court of Inquiry, we think such will not be the consequence in a case where, as here, the final charges are totally independent of the allegations for investigation of which the Court of Inquiry was constituted. It is true that on the date when the attachment order was passed, viz., 13.1.1986, the authorities were considering the report of the Court of Inquiry and were of the view that further disciplinary proceedings would be necessary. They had, however, not finally made up their minds about the charges and though tentative charges against the petitioner were based on the allegations gone into by the Court of Inquiry, the charges eventually framed are not based on those facts and allegations. The validity of these charges or the proceedings against the petitioner for them, therefore, are not affected by any irregularity in the procedure followed by the Court investigating the facts on which it was asked to give its findings. In fact, there have been proper and valid disciplinary proceedings against the petitioner on allegations independent of those for which the Court of Inquiry was constituted and the mere fact that initially one could not have foreseen the number of nature of charges eventually to be framed against the petitioner or that initially the step was taken in consequence of the report of the Court of Inquiry would not, in our opinion render the attachment invalid.

(16) The sting of the order of attachment really lies in the consequence that follows on it under SAI/I/S/74 as amended in 1976. This consequence is of great significance particularly in the armed services as it entails a loss of rank temporarily until the disciplinary proceedings against him reach a finality. Though the Sai talks of the officer "relinquishing" his rank, it really contemplates not a voluntary act by the officer but of a compulsory consequence that befalls him on the expiry of the period referred to therein. Counsel for the petitioner submits that since, in this case, the competent authority had decided to initiate disciplinary proceedings on the recommendations of the Court of Inquiry, he must have given specific directions that the petitioner should relinquish his acting rank after 21 days of the receipt of such directions. He submits that the signal of 13.1.1986, apart from referring to various Army Instructions, contains on directions regarding the given up by the petitioner of his acting rank and that, therefore, the respondents are wrong in saying that the petitioner "relinquished" his acting rank on 7.2.1986. We this argument proceeds on a misreading of ASI/I/S/74. What it contemplates is that the officer will relinquish his acting rank on the expiry of: (a) 3 months from the date of his attachment or (b) 21 days from the date of the receipt of the directions of the competent authority... to initiate disciplinary action against him, whichever is earlier. It talks of the directions of the competent authority to initiate disciplinary action and not directions about the relinquishment of acting rank. The signal of 13.1.1986 referring to Ai 106/60 makes clear the decision of the competent authority about the initiation of disciplinary action and the attachment of the petitioner in this behalf. By also referring to ASI/I/S/74 it makes it clear that the petitioner is to relinquish acting rank within 21 days thereof, this being a case of a direction for disciplinary action consequent on the recommendations of a Court of Inquiry. Even if ASI/I/S/74 be read as requiring directions of the competent authority for relinquishment of acting rank with 21 days of the receipt of the Signal of 13.1.1986, its terms are fulfillled in the present case. For, if it had been the intention of the competent authority that the general period of 3 months for this stipulated in the Asi should apply, it need not have made any reference to ASI/I/S/74 at all; the first part of the signal made it clear that the petitioner was being attached for disciplinary proceedings and that consequence would have followed automatically on the expiry of 3 months. Hence the reference to ASI/I/S/74 cannot have any other significance than that the petitioner was to relinquish the acting rank within 21 days. This could have been, perhaps, made more explicit but, in the context of the facts here, the words of the signal are not capable of a different interpretation.

(17) Even assuming for the sake of argument that the petitioner is right all along and that the Court of Inquiry proceedings should be held completely bad and having the effect of vitiating disciplinary act on foot thereof, we have already pointed out that the disciplinary action in this case can also be considered as completely independent, in the ultimate event, of the Court of Inquiry proceedings. In this view of the facts, the only consequence will be that the petitioner should have relinquished charge within 3 month of 16.1.1986, i.e., on or before 15.4.1986. It is the admitted fact that the petitioner failed to given up his rank even after April, 1986 and defied specific directions in this regard on 26.4.1986. The letter dated 29.4.1986 makes it clear that the disciplinary action was being initiated for this. This charge against the petitioner also framed only on 21.2.1987 and does not make any mention of the specific date on which the petitioner ought to have given up bids acting rank. In any view of the matter, the petitioner could not have continued to wear, as he did, the badges of an acting Major, at any rate, beyond 15.4.1986.

(18) In these circumstances, we are of opinion that, whatever view one may take of the regularity of the proceedings before the Court of Inquiry, there is no reason to set aside the attachment in this case or the disciplinary proceedings which were disposed of summarily as is permissible under the statute. Obviously the attachment, which was only for disciplinary proceedings, will come to an automatic end on the termination of the disciplinary proceedings. The posting of the petitioner will depend on the outcome thereof. If he is completely vindicated, he will be restored to his earlier post and acting rank as if it had never been interrupted. But, where he is not vindicated but receives some punishment, the matter has to be considered by the competent authority who should decide whether he should get back his earlier post and acting rank. We do not, however, wish to say anything on the contentions on this aspect as they are outside the scope of the relief asked for in the writ petition and shall leave it to the petitioner, if it is open and possible for him at this stage (if he has not done so already) to make an appeal or other representation to the higher authorities under the statute.

(19) There was also some discussion before us as to the duration of the attachment and the "relinquishment" consequent on ASI/I/S/74. This is actually dealt with in para 7 of the Asi, as amended in 1976. Counsel contended that there were defects in the summary proceeding and challenged the punishment awarded to him. Under clause (c) of para 7 above in a case like this, he can be reappointed to the post afresh and perhaps be also given his acting rank from the date of reappointment at the discretion of the competent authority. The respondents have stated in their reply that this has been considered and it has been decided that he cannot be given an acting Major's post particularly because there is no post available against which he can be assigned. We express no opinion on this question also as this has been subsequent to the writ petition and has not been challenged herein. Also at least the initial remedy of the petitioner against such decision must lie with the administrative authorities and it will not be correct for us to deal with this aspect in the absence of the proper averments and records.

(20) In the result, we see no merit in this writ petition and dismiss the same but, as mentioned earlier, we leave open the remedies of the petitioner against the order of "severe reprimand" dated 25.2.1987 as well as the status of the petitioner, consequent to the said order, as determined by the respondents. In the cricumstances, we make no order as to costs. Petition dismissed.