G.S. Bajwa vs Union Of India And Ors.
1995 Latest Caselaw 607 Del

JUDGMENT

S.D. Pandit, J.

(1) Petitioner G. S. Bajwa was commissioned in Indian Air Force on 27-6-1970. He got his substantial post of Flight lieutenant on 27-06-1976. His fourth posting was at Udhampur in the year 1976. At that time Shri Dilbagh Singh was the Air Marshal. It is the claim of the petitioner that some explosives were to be transferred to N.A.L. from Udhampur by 30 Civil Road Transports. But the said" work was not given at one and the same time and it was being undertaken as a piecemeal transport job in case the said work were to be given as a whole for 30 Civil Transports then it would be beyond the jurisdiction of Shri Dilbagh Singh. It is his further claim that in the said Transport Contract some malpractice was being played and Rs. 700 to Rs. 800 were being paid in excess for each trip. Therefore, he made a complaint regarding the same and because of his complaint there was a saving of about Rs. 80.000 but by that act of his. Shri Dilbagh Singh was hurt and, therefore, he instructed his subordinate officers to "fix" the present petitioner.

(2) It is his further allegation that because of the instructions 'of Shri Dilbagh Singh, Air Marshal, he was illegally and improperly admitted in the Psychatric'ward from 15-6-1979 to 10-7-79 and a pain from 22-8-79 to 19-10-79. During this detention in' the psychatric ward. it is claimed by the petitioner, a poisonous substance was also injected in him. Thereafter, he filed writ petitions in the Supreme Court. Later, on 18-06-1982 Wg. Commander S.L. Gupta had issued a.n order asking him to undergo a medical examination by a Medical Board at A.F.C.M.E. on 21-06-1982 for recatorisation of petitioner's last medical category. But the said" order being illegal he had not obeyed the same. Thereafter a General Court Martial was held against him charging him for disobeying the said order and committing an. act prejudicial to the good order and Air Force discipline, and thereby committing offences punishable under Section 41(2) and Section 65 of Air Force Act. 1950. The said General Court Martial was conducted illegally and improperly. In proceeding of the said General Court Martial he was denied the legal assistance , he was denied the copies of the day-to-day proceedings, he was denied the opportunity to examine witnesses in his defense and in spite of that the said General Court Martial ordered a sentence of dismissing him from the service by its order dated 26-06-1983.

(3) The petitioner had, thereafter, preferred an appeal to the Central Government and his appeal also is dismissed on 14-01-1985 and, thereafter, he has filed the present petition' to get a declaration that the order passed by the General Court Marital of his dismissal from service is null and void and the petitioner continues to be in service and is entitled to all consequential benefits, including the higher ranks, emoluments and allowances. He also prayed for getting a declaration to the effect that his detention in the psychatric ward was illegal and that he be awarded suitable compensation in lieu of the same. He also wants a declaration that his arrest on 21-06-1979 is illegal and to award suitable compensation in lieu of the same.

(4) The claim of the petitioner is resisted by the respondents. They contend that the claim of the petitioner for declaring that his confinement in the psychatric ward was wrongful and illegal and that his arrest On 21-06-1979 is also wrongful and illegal is barred by the general principles of res judicata since before filing this petition the petitioner had filed numerous petitions in the Supreme Court and in those petitions all these contentions were raised by him and the said petitions have been dismissed and, therefore, the said contentions raised by him stand rejected. It is further contended that the proceedings of the General Court Martial have taken place as per the provisions of Air Fore' Act as well as Rules made under the said Act. There was no irregularity of whatsoever .nature in the conduct of the said General Court Martial. "There was no breach of any principle of natural justice in the conduction of General Court Martial. They further contended that the order issued by Wg. Commander S.L. Gupta against the petitioner was legal and valid and the disobedie,nce of the said order was an offence under Section 41 of the Air Force Act. The petitioner has been rightly punched and his appeal has been dismissed on merits by the Central Government. Thus, they contended that the petition deserves to be dismissed with costs.

(5) It is the contention of the petitioner that the order passed by Wg. Commander S. L. Gupta on 21-06-1982 was an illegal and invalid order and. therefore, disobedience of the same would not at all amount to any offence. It is an admitted fact that We. Commander S. L. Gupta had signed the said order dated 21-06-1982 as the superior officer of the petitioner and the said order was signed by him as per the direction of his superiors that is quite clear from opening words of the order. Therefore, merely because the order is signed by Wg. Commander S. L. Gupta it could not be said that the order issued to the petitioner is illegal and invalid.

(6) It is contended by the petitioner that the said order dated 21-06-1982 was issued malafide and there was absolutely no reason to direct him or to order him to undergo medical examination as per the said order. The service record of the petitioner however, does n6t support his contention that the said order was passed malafide. It must also be mentioned here that the medical examination of the Air force personnel by the Medical Board is a routine matter. It is not the case of the petitioner that he had undergone the medical examination by the Medical Board just a few days prior to the issuance of the letter in question. Therefore, in- these circumstances, the petitioner was not at all justified in refusing to undergo the said medical examination by the Medical Board, In the case of Ranjit Thakur v. Union of India the question as regards a lawful command for the purpose of Section 41 of the Air Force Act was considered by the Hon'ble Supreme Court wherein' the followed observations were made by Their Lordships on page 619 , "The submission that a disregard of an order to eat food does not by itself amount to a disobedience to a lawful command for purpose of Section 41 has to be examined in the context of the imperatives of the high and rigorous discipline to be maintained in the Armed Forces. Every aspect of life of a soldier is regulated by discipline. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that a mere refusal to eat food is an innocent, neutral act might be an oversimplification of the matter. Mere inaction need not always necessarily be neutral. Serious acts of calumny could be done in silence. A disregard of a direction- to accept food might assume the complextio.n of disrespect to. and even defiance of authority."

(7) Thus, we are unable to agree with the contention- of the petitioner that the said order dated 18-6-1982 was an illegal order. In the order itself it has been clearly mentioned that the order was being issued in bonafide interest of Air Force duty and in public- interest. It was also in the interest of the petitioner in view of the record of the petitioner. Therefore, the contention of the petitioner tha the said order was illegal and. therefore, he was not bound to obey the same arid. therefore, disobedience of the same would not amount to as offence under Section- 41 of the Indian Air Force Act could not be accepted.

(8) Petitioner has alleged that the order directing him to appear before the Medical Board as well as the trial before the General Court Martial are malafide acts committed at the instance of Air Marshall Dilbagh Singh. According tro him, in 1976, He has exposed some malpractice in transport expenses which were being sanctioned by Air Marshall Dilbagh Singh. This claim of malafide acts is far fetched and we are unable to agree that in 1983, he was asked to appear before Medical Board malafidely at the instance of Dilbag Singh. In our view, in view of his previous reports, the examination by Medical Board was in the interest of the Department as well as the petitioner. In addition to this, he has not joined Shri Dilbag Singh as a party to this petion. When he alleged malafide against him, Sh.dilbagh Singh is a necessary party. Without giving him the opportunity of being beard, it is not proper to consider the allegations against him. Therefore, on this count of not making Dilbag Siagh as a party, his claim of malafide acts also deserves to be rejecter

(9) Admittedly, the General Court Martial was held against the petitioner and he was charged for having committed offence punishable under Section 41(2) and Section 65 of the Air Force Act. The offence punishable under Section 41(2), for which the petitioner was charged is punishable with imprisonment to the maximum term of 14 years. The person charged for the offence punishable under Section 65 of the Act is liable to be sentenced to imprisonment for a term which may extend to seven years. Therefore, both the offences with which the petitioner was charged were punishable with imprisonment.

(10) It is an admitted fact that the petitioner was not represented by any counsel in the said General Court Martial. It is a fundamental right of an Indian citizen to have legal assistance of a legal expert when he is to face a trial for an offence punishable with imprisonment as his personal liberty is at stake. If the person who is facing a criminal trial for an offence punishable with imprisonment is not m position to engage an advocate at his own cost then it becomes the fundamental duty of the State to provide him legal assistance at the cost of the State. In the case of Suk Das v. Union Territory of Arunachal Pradesh [AIR 1986 Sc 99] (2) this aspect is considered by the Apex Court and the following principles are laid down , Free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty. This fundamental right is implicit in the requirement of reasonable, fail and Just procedure prescribed by Article 21. The exercise of this fundamental right is not conditional upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him. On the other hand the Magistrate or the Sessions Judge before whom the accused appears is under an obligate-n to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. The, conviction reached without informing the accused that they were entitled to free legal assistance and inquiring from them whether they wanted a lawyer to be provided to them at State cost which resulted in the accused remaining unrepresented by a lawyer in the trial is clearly a violation of the fundamental right of the. accused under Article 21 .and the trial must be held to be vitiated on account of a fatal constitutional infirmity."

(11) In the instant case as soon as the petitioner was intimated about the starting of General Court Martial proceedings against him he had given an application to the President of India on 02-05-1983 slating therein his inability to engage an Advocate at his own cost and to provide him funds for engaging an Advocate to defend him ill the said General Court Martial. The copy of the said application was given to General Court Martial and it is at page 44 of the file of exhibit. If the stand taken by the petitioner from the very beginning, i.e. much prior to the initiation of the General Court Martial proceedings against him, is considered then it would be quite clear that he had a feeling that Air Marshal Dilbagh Singh was against him and, consequently, all the subordinate officers would not be in a position to give him proper and necessary assistance in defending him. His request to have an advocate for defending him in view of this apprehension could not be said to be unreasonable or improper request or demand.

(12) Mr. Varghese, learned counsel for the respondents, drew our attention to the Air Force Rules, 1969 pertaining to constitution of General Court Martial and the conduction of Court Martial. He also brought to our notice the provisions of Rule 102 and contended that there is no provision either under the Air Force Act or Rules framed thereunder to appoint a -legal practitioner for defending the accused. It is true that there is no provision either under the Air Force Act, 1950 or the Air Force Rules, 1969 regarding the appointment of a legal practitioner to defend the accused at the cost of the State. But the principles which are laid down by the Supreme Court in the case of Suk Das v. Union Territory of Arunachal Pradesh (Supra) are on the basis of Article 21 of the Constitution of India. If the provisions of the Code of Criminal Procedure are considered then also it would be quite clear that under that Act also there is no provision to appoint an advocate to defend an accused but under Article 21 of the Constitution of India no person, shall be deprived of his personal liberty except as per the procedure established by law. Therefore, when the prosecution of a person is to take place be must be given sufficient opportunity to defend himself and, consequently, he must be given legal aid. Merely because the Air Force Act, 1950 or the Air Force Rules, 1969 do not make any provision for appointing an advocate to defend an accused at the cost of the State it could not be said that the trial of the accused is proper and legal.

(13) Shri Verghese further drew our attention to Rule 102, and contended that as per the said Rule in any Court Martial the accused person could be represented by any officer and the said officer is known as the "Defending Officer or a "Friend of the Accused'' and that opportunity was given to the petitioner and, therefore, the petitioner could not said to have been denied the proper opportunity to defend himself. If the procedure of Court Martial is considered, then it would be quite clear that as per the said procedure a prosecutor is to conduct the prosecution, then the Judge Advocate is to assist the Court, it. the provision of Section 128 of the Air Force Act, 1950 are taken into consideration it would be quite clear that the Judge Advocate in a Court Martial must be either an officer belonging to tile Department of the Chief Legal Advisor or an officer approved by the Chief Legal Advisor. The role of the Judge Advocate is to explain to the Court the legal provision in Order to assist the court to come to the right conclusion.

(14) In the instant case there was a prosecutor for the prosecution and the-judge Advocate was also appointed. The Judge Advocate always represents the Chief Legal Advisor in a Court Martial as per the provisions of Section 111. Thus, the prosecution had the aid of a prosecutor as well as a Judge Advocate whereas in the instant case though the petitioner was insisting to have appointment of a Civil Advocate, the same was not appointed, No doubt initially a Defending Officer was helping the petitioner but he had also withdrawn in the midst of the trial. But merely because the petitioner was given the assistance of the Defending Officer, it would not be said that the petitioner and the prosecution were in equal pcsition. la view of the presence of the prosecutor and the assistance of Judge Advocate, the non-appointment of a Civil Advocate for the petitioner has put the petitioner in an unequal position. In the Cases of Board of Port Trust, Bombay v. Dilip Kumar, Rajender Nath & Ors. J.K.Aggarwal v. Rajender Nath & Ors. J.K. Aggarwal v. Supreme Court was considering the representation of an Advocate; for a Delinquent Officer in departmental inquiries. Those were proceedings of purely civil nature and the maximum punishment involved was dismissal from service and there was no question of los ing of any personal liberty. In those cases it has been held by the Supreme Court that when the Department was represented by a person. having legal background ana acumen the rejection of the request of the Delinquent Officer for appointment of an advocate to detail him had resulted into miscarriage of justice and the departmental inquiries were quashed.

(15) I he material on record further shows that in this particular case the denial of petitioner's request for being represented by an Advocate ha$ resulted into miscarriage of Justice. It is the case to prosecution itself that the petitioner was suffering to some extent psychologically. His record produced is showing that be was haying psychological problem and the department wanted him to appear before the Medical Board for determination of his psychological standard and his refusal to appear before the said Board is the charge against him. When as per the case of the department itself the petitioner was having psychological problem the conduct of his trial without any legal aid from a legal expert or a person having expertise in law amounted to miscarriage of justice.

(16) The material on record shows that when some of the witnesses for the prosecution were examined the petitioner had stated before the Court Martial that he would be re-summoning them after consulting his Advocate and, thus, there was no cross-examination by the Petitioner. Similarly, the petitioner was asked to inform the Court about the relevancy of the witnesses before summoning them and the record shows that he refused to disclose the same. At this Juncture we are not considering the question as to whether the opportunity was denied to him of examining witnesses in his defense. That question would be considered by us hereinafter but we are mentioning this fact only in order to show as to how the non-appointment of an Advocate for the petitioner has resulted into miscarriage of Justice. It was the ease of the accused that if he happened to disclose the relevancy of the witnesses then he would have to disclose the details and thereby prejudice would be caused to his defense and, therefore, he had refused to disclose the relevancy. For a layman it is very difficult to satisfy the Court Martial and the Judge Advocate, who is legal expert, about the relevancy of the witnesses without disclosing his defense. Thus, in our view, in view of the position of the petitioner as per the claim of the prosecution itself, the non-appointment of an Advocate to defend him has resulted into miscarriage of justice.

(17) Mr. Verghese, learned counsel for the respondents has further slated before us that as per the prayer made by the petitioner in his application to the President of India on 02-05-1983 he had asked for appointment of the two persons named therein as his Advocate. He contended that an accused person or a person facing a Court Martial trial cannot insist that a particular Advocate of his choice must be appointed. An accused is entitled to have legal aid. i.e. the assistance of a legal expert to defend him. It is true that he cannot insist for appointment of a particular individual to defend him bat the person to be appointed to defend him mast be a person appointed with his consent. He must have confidence in that person and the person appointed must be of the necessary competence to defend him. Therefore, when a person is facing a serious charge and he is liable to punishment of imprisonment a competent Advocate must be appointed to defend him. It is not the case of the respondents that respondents had offered him the legal aid by offering the appointment of Advocate of good standing and capability and that such appointment was rejected or refused by the petitioner. It is the duty of the State or the Court where the trial is to take place to prepare a panel of senior and competent Advocates to be appointed by way of free legal and at the expense of the State to defend the accused. If such a panel was prepared by the Air Force authorizes and if that panel was shown to the petitioner and he was asked to take assistance of any Advocate from the said panel then it was not open for him to insist that only a particular advocate named by him in his application must be appointed to defend him. But, no such event had taken place in this case. The Judge-Advocate had told the Court that there was no provision for appointment of the Advocate of his choice but he had not brought to the notice of the Court that it is the duty of the Court to appoint an Advocate to defend the accused. Therefore, merely because the petitioner had named two advocates in his application who could not be appointed, still the non-appointment of any Advocate for him could not be justified. At least the petitioner ought to have been offered appointment of some advocate at State expense.

(18) Thus, we are of the opinion, that the non-appointment of an Advocate to defend the accused has resulted into miscarriage of justice and, therefore, the trial of the petitioner stands vitiated.

(19) The petitioner in this case had given- two lists of the witnesses to be examined on his behalf by way of his defense. In the first list there were 24 witnesses and in the second list there were seven witnesses. When the petitioner requested to summon those witnesses the Judge Advocate advised the General Court Martial that tile petitioner should be asked to explain relevancy of those witnesses. The General Court Martial accordingly asked the petitioner to state relevancy of each witness to disclose on what points he wants to examine each witness. Technically ?s well as legally that direction of General Court Martial is quite owner and correct. When that direction was given the petitioner told the Court that if he happened to dispose the relevancy of each witness it would cause prejudice to him and his defense would have to be disclosed. It will have to be also mentioned here that all the witnesses named by him were Air Force Personnel. Some of them were retired Officers and some of them were in service. This position of the witnesses ought to have been considered by the General Court martial Along with the request of the petitioner that he cannot state the relevancy of the witnesses without disclosing his defense. The General Court Martial ought to have considered that the petitioner was not a legal expert. Therefore in the above circumstances the General Court Martial ought not to have acted too technically.

(20) Proceedings further show that when the General Court Martial insisted on stating relevancy the petitioner had' told the Court that he would write letters to the witnesses who were out of Delhi and would take replies from them and then state their relevancy and would also say whether he wanted to examine any of them. For that he sought adjournment of hearing on 3-6-1985 to 17-6-1983. He had sought time of only 14 days but that request was rejected by giving him time of only four days. We fail to understand how the General Court Martial expected that the petitioner would be in a position to contact witnesses residing at Bombay, Bangalore, Belgaun, etc. and get their replies in four days. Thus, by adjourning the hearing; on 3-6-1983 to 7-6-1983 the General Court Martial had denied the reasonable opportunity to the petitioner to examine the defense witnesses.

(21) It is the further claim of the petitioner that he was not supplied copies of the evidence recorded every day and the copies of the proceedings taking place everyday though he had repeatedly asked for the same. There is no dispute of the fact that the petitioner was not supplied the copies of the evidence and proceedings recorded every day by the General Court Martial. It must be also mentioned here that the petitioner had requested to allow him to copy down the evidence and proceedings every day after the same were recorded by the General Court Martial. Shri Verghese, learned counsel for the resrondents, submitted that there is no provision either in the Air Force Act, 1950 or in the Air Force Rules, 1969 that the accused must be supplied the copies of the evidence and proceedings and, therefore, the non-supply of them would not amount to any illegality. But merely because there are no provisions in the Act and the Rules to supply copies, the Court cannot deny the copies of evidence and proceedings to the accused. The denial of them means the denial of the reasonable opportunity to defend himself. The denial of copies of evidence and the proceedings is against the principles of natural justice. The record shows that the General Court Marital was provided with three typewriters with three typists. Thus, the Court was having the necessary manpower to supply copies to the petitioner. Therefore, the denial of copies of the evidence and proceedings recorded everyday to the petitioner has resulted into denying reasonable opportunity to him to defend himself.

(22) It is fur her submitted that the Judge Advocate, the Prosecutor and the General Court Martial were meeting in closed chamber and then the original depositions were also being changed to favor the prosecution and after removing portions favorable to the petitioner and statements of witnesses were being retyped and original statements were being destroyed. It is an admitted fact that in the open court when the evidence was recorded the Court was taking down the same in long hand and thereafter it was being typed. The petitioner has produced some pages of such typed record and they show that on the same day some portion of the submissions of the Judge Advocate as well as the witnesses were typed, on different typewriters. It is his submission that they are on different types on account of the substitution of new material by removing the old original record. It is admitted before us that when the evidence of the witnesses was recorded by the Court the Court had taken, down the said statements in long hand and it was not dictated directly to the typist. It is also admitted that the statements were subsequently typed by the typist after the witnesses were discharged and after the Court was rising. But on the typed statements neither the signature of witness nor the signature of the prosecutor or the accused or the signature of the Court is appearing day-to-day. Similarly, the original statements recorded by the Court are also not preserved.

(23) Therefore, in these circumstances, the procedure followed by the Court in conducting the trial in question is also not proper as the original statements of the witnesses recorded by the Court in its own band in the open court are not preserved and when the petitioner is alleging that there was tampering with the evidence recorded, it has become very difficult for us to come to a conclusion that the allegations made by the petitioner are baseless or false in the absence of the original record.

(24) Therefore, we are of the opinion that the trial of the petitioner is vitiated for the. above stated reasons. Consequently, the punishment awarded to him will have to be set aside by allowing the present petition.

(25) No doubt the petitioner has prayed in his petition that his earlier detention was illegal and that as it was a wrongful decision he should be awarded comoensation. But. that claim of the petitioner could not be allowed since it is hit by the principles of constructive res judicata. Admittedly, before this petition the petitioner had filed petitions before the Supreme Court in which he has alleged the same contentions and, admittedly, all those petitions have been dismissed It is contended by the petitioner that Iris petitions were dismissed without passing any speaking or detailed order. But, merely because there was not a detailed order his contentions could not be entertained by this Court afresh. Therefore, prayers made by the petitioner for declaration of his wrongful detention in psychatric Ward and awarding damages for the said wrongful detention will have to be rejected as barred by the principles of constructive resjudicata.

(26) The present petition as regards declaration of quashing the court martial proceedings and setting aside the order of sentence could not be rejected in view of the fact that the Supreme Court had granted him leave to file the present petition under Article 226 of the Constitution of India in Civil Writ Petition No. 12605184 Ob 22-11-1985. In the said order the Apex Court has observed as under , - "The writ petition has come up for hearing before us today. On- going through the record we are of the view that on the facts and in the circumstances of the case the petitioner should be permitted to withdraw his prayer as regards correctness of the order passed on appeal by the Central Government and to question it by a separate petition under Article 226 of the Constitution before the High Court. ' We accordingly, permit the petitioner to withdraw the writ petition with liberty to file the writ petition before the High Court under Article 226 of the Constitution. We express no opinion on the merits of the contention raised by the parties regarding the correctness of the order of dismissal of the petitioner and order passed on appeal by the Central Government."

(27) Thus, the petitioner succeeds partially in this petition. The petitioner was awarded subsistence allowance throughout the period miming between his date of dismissal till this date. Merely because the petitioner's petition is allowed it could not be said that he must. be reinstated with all consequential benefits and be paid all his back wages from the date of dismissal till this date. The conduct of the petitioner and the fact that his petition is allowed on technical grounds, we are of the opinion and view that he should not be paid full salary. He being a member of a very disciplined defense service has behaved very childishly by making all sorts of allegations against his superiors. He has completed his L.L.B. and is a practicing advocate for some time. In the case of A. L. Kalra v. P&E Corporation of India the conduct of the petitioner and the setting aside -of the order of dismissal on technical ground was taken into consideration and the petitioner was allowed only 50 per cent of the back wages for the period since his removal from service till his reinstatement. Even in the earlier case of U.P. Warehousing Corporation v. Vijay Narain it has been held that direction for payment of full back wages to such an employee is not proper. In our opinion the petitioner has made unwanted accusations against his superiors by preferring applications to the President and Prime Minister of India. He has also made wanton allegations as regards his detritions in psychiatric ward as well as regarding his examination before the Medical Board. Therefore, in these circumstances, we hold that the petitioner should be paid 50 per cent of his back wages from the date of dismissal till this date for the post which he was holding at the time of his dismissal. Any amount paid to him during this period on account of the orders passed by the Supreme Court as well as this Court will have to be taken into account to that 50 per cent while paying the 50 per cent back wages to him. As the petitioner has not actually worked during this period and his suitability for the promotional post could not be assessed and considered as he refused to go before Medical Board, we are awarding back wages in the same cadre in which he was working on the date of the order of dismissal.

(28) The petitioner is entitled to reinstatement in the same post but his continuation in the said post would be subject to his being found medically fit by the Medical Board of the Air Force and in case he is not found fit for the said post then he should be given compulsory voluntary retirement with all pensionary and other consequential benefits.

(29) We also direct the respondents to pay to the petitioner by way of costs a sum of Rs. 3,000 as the petitioner himself has conducted bids petition.