Brig. R.P. Singh, Vsm vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 878 Del

JUDGMENT

S.B. Sinha, C.J.

1. The petitioner is aggrieved by an order of the Commander, Headquarters, Technical Group EME dated 15.02.2002 as contained in Annexure 'P-6' to the writ petition whereby and whereunder he has been further attached to HQ Inf Division till finalization of disciplinary proceedings.

2. The fact of the matter is as under. The petitioner is a Brigadier Commander. An anonymous complaint was made against him in the first week of April, 2000 pursuant whereto a court of inquiry was directed to be held. According to the petitioner, General Officer Commanding Head Quarter, Delhi Area Major General V.K. Bhanot was asked to investigate into the matter and nothing was found against him. The petitioner was, however, at the relevant point of time undergoing his courses at National defense College. While he was on leave on or about 04.01.2002, a letter was served upon him whereby and whereunder he was informed that he had been attached with Tech. GP EME, Delhi till finalization of disciplinary proceedings against him. Thereafter the impugned order was served on him on 15.02.2002.

According to the respondent,s the said order was passed as there is a possibility that the petitioner would tamper with the evidence or influence the witnesses.

3. Mr. Tikku, the learned counsel appearing on behalf of the petitioner, would contend that the impugned order was passed at the instance of the respondent No. 4 as he had asked for certain favors from him to which he could not agree.

The learned counsel would further contend that the attachment itself amounts to a stigma and having regard to the fact that an order of attachment was passed till finalization of the disciplinary proceedings, there is absolutely no reason as to why he is sought to be attached in Ferozepur, which is not a static area.

4. Mr. Tikku would urge that the respondent No. 4 being an influential person may frame him in any case and as a result whereof his entire career would be ruined.

5. It was submitted that having regard to the fact that he had handed over the charge of 35 Infantry Brigade on 20.10.2000 and having never visited the said place, there was no possibility that he can tamper with the evidence or influence the witnesses.

The learned counsel in support of his contention has strongly relied upon Rajendra Roy v. Union of India and Anr. and Union of India and Ors. v. S.L. Abbas, .

6. Mr. Trivedi, the learned additional Solicitor General appearing on behalf of the respondents, would contend that the power of passing the order of attachment by the competent authority is not in question. It was submitted that such power has been exercised by the competent authority and it is not for this Court to interfere therewith unless it is found that the said authority acted with malice in exercising his discretionary power.

According to the learned Additional Solicitor General, as the respondent No. 4 had no say in the matter and was not in a position to influence the decision, the ground of malice urged by the petitioner has no legs to stand upon.

It has been submitted that the competent authority acted on information that the petitioner is likely to tamper with the evidence and to gain over the witnesses.

The learned counsel would urge that having regard to the nature of charges levelled against the petitioner, a large number of civil witnesses are likely to be examined and as such the possibility that they can be gained over cannot be ruled out.

RE :- BIAS :-

7. The allegation of bias of the respondent No. 4 has been made in the following terms :-

"... The respondent No. 4 who is holding a very high post of the Director General of Military Intelligence wanted certain favors for allotment of the contract of Cable TV Network in the Shanker Vihar, to one of his near ones, namely, Mr. Surinder Gupta and also wanted certain other allotments of Kiosks and shops to his near ones and as the petitioner did not oblige him and wanted to work in the best interest of the society and the force the said, General had a ego clash and the respondent No. 4 made it prestige issue to harm and destroy the career of the petitioner who is very high Profile Brigadier. ..."

In the grounds stated in support of the writ petition, it is submitted :-

"H. That the petitioner is being harassed any the behest of the respondent No. 4 who is a very senior Army Officer holding the post of Director General of Military Intelligence as the petitioner did not favor the persons close to the respondent No. 4 while the petitioner was the President of defense Officers' Enclave Residence Association."

The affidavit in support of the writ petition was affirmed by his wife as allegedly at the relevant time he was unable to swear the affidavit as he was admitted to Base Hospital Delhi Cantt. in the following terms :-

"2. The statement of facts contained in the writ petition are true to my knowledge and knowledge of the petitioner and the writ petition has been drafted as per the instructions of the petitioner."

In the counter affidavit filed by the respondent No. 4, it was stated:-

"6. That I deny that, I ever made a prestige issue to harm and destroy the career of the petitioner because I was not provided with any favors as alleged by petitioner. Rather it is respectfully submitted that none of posts held by me during the alleged period, I never came in any channel whatsoever, in the career prospects of the petitioner. It is submitted that during the period of 1998, I was not even posted at Delhi.

7. It is respectfully submitted that I was never in any way concerned with defense Officers Enclave Residence Association (DOERA), Shankar Vihar, New Delhi or with Headquarters 35 infantry Brigade or with the petitioner in his alleged capacities or with the allotment of any Cable TV Network contract or for allotment of any alleged shop, kiosks in Shankar Vihar, New Delhi during the relevant period.

8. It is again respectfully reiterated, that I have no knowledge nor I am concerned officially, or in my individual capacity with the Brigade Commander 35 Infantry Brigade or with the petitioner as the President of DOERA. I also have no knowledge and was not aware that the petitioner had any powers or any authority to allot any contract for Cable TV Network or allot any shop in Shankar Vihar."

The said affidavit has been verified in the following terms:-

"VERIFICATION :-

I, the above-named deponent do hereby verify that the contents of the above affidavit are true and correct to my knowledge and belief and nothing material has been concealed there from.

Verified on 27th day of February, 2002."

The reason for such re-attachment was stated in the counter affidavit on behalf of the respondent No. 1 as under :-

"....After the termination of the course, in order to carry out disciplinary proceedings as directed by General Officer Commanding 2 Corps, he was attached with Technical Group EME Delhi vide Army HQ letter dated 02.01.2002 (Annexure P-3) due to the then prevailing exigencies and as he was already in Delhi. That subsequently due to changed security environment it has been found expedient to attach the petitioner to a formation under Headquarters Western Command to proceed with the disciplinary case as per provision of Army Instruction AI 30/86 and also to rule out possibility of any tampering with evidence and influencing witnesses. ..."

The allegations of bias made against the respondent No. 4 are absolutely vague. No statement has been made in the writ petition that the respondent No. 4 has anything to do with the impugned order. It has also not been contended that respondent No. 2 herein had in any way been influenced by respondent No. 4 in passing the impugned order or even there was any possibility in respect thereof.

Allegations of malice, it is well settled, must be made specifically and such allegations are required to be fully established.

The affidavits of the parties are not in terms of the rules framed by this Court or Order VI Rule 16 of the C.P.C. We, therefore, are not in a position to hold that the petition has been able to prove malice. There is, further, nothing on record to show that the competent authority acted on advice of the respondent No. 4.

The concept of bias has also undergone some changes.

8. In Coal Mines Officers Association of India and Ors. v. Union of India and Ors. , of which one of us (S.B. Sinha, C.J.) was a member, it was held :-

"59. Natural justice as is well known is founded on two basic principles :-

(a) Audi alteram partem (b) Nemo Judex in causa sua.

60. The duty to act fairly is the theme of the principles of natural justice. However, the extent of the duty to act fairly will normally be very limited where the authority exercises a function, which does not culminate in a binding decision. The Rule generally applies, at least with full force, only to conduct leading directly to a final act of decision, any not to the making of a preliminary decision or to an investigation designed to obtain information for the purpose of a report or a recommendation on which a subsequent decision may be founded. (See Halsbury's Laws of England, Vol. 1(i)4, 4th Edition, paras 85 and 94.)

63. Law in this regard has expanded to a great extent. In J.F. Garner's Administrative Law, it was stated:

"The natural justice 'bias' rule looks to external appearances rather than to proof of actual improper exercise of power. If the reasonable observer would have the requisite degree of suspicion of bias in the decision-maker then that decision can be challenged. It is a matter of the courts ensuring that 'justice is seen to be done'. Since successful challenge is based on appearances, ti is natural that the types of matter to which the rule applies is somewhat confined. As we shall see it clearly applies to judicial and disciplinary functions but not generally more widely to administrative decision- making and actions."

It was noticed that even in Metropolitan Properties Co. (FGC) Ltd. v. Lannon 1968 All ER 304, Lord Denning MR observe there must appear to be real likelihood of bias and surmises and conjecture is not enough. The Court noticed the decisions of the Apex Court in Manak Lal v. Dr. Prem Chand Singhvi and Ors. ; Mineral Development Ltd. v. The State of Bihar and Anr. ; and Ratan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School and Ors. and held:-

83. The apprehension against Shri Tiwari is that he being a member of Trade Union affiliated to AITUG may be biased Soma Maghi who has lodged the First Information Report is a member of a Trade Union which is affiliated to CITU. It is a common knowledge that both the Trade Unions are rival of each other.

84. The Court of inquiry is not dealing with any matter under Industrial Disputes Act. It has to deal with the causes and circumstances of the accident, which took place in the Colliery. Only because Sri Tiwari is a member of Trade Union. Only because Sri Tiwari is a member of Trade Union, the same ipso factor does not mean that he will be biased or there is any real possibility of bias on his part. It is interesting to note that in paragraph 88 Halsbury's Laws of England 88 it has been stated:

"It is not enough to show that the person adjudicating holds strong views on the general subject matter in respect of which he is adjudicating, or that he is a member of a Trade Union to which one of the parties belongs where the matter is not be in which a trade dispute is involved." ( Stevens v. Stevens (1929) JP 120 ).

85. It is also pertinent to note that recently in Regina v. Gough reported in, (1993 Appeal Cases 646), the House of Lords tilted toward the possibility of bias rather than probability of bias. The House of Lords decisively restated the real likelihood tests in a criminal case."

It was noticed that there is even a distinction of bias between a Judge and the Jury.

9. In Bhajan Lal, Chief Minister, Haryana v. Jindal Strips Ltd. and Ors. , while considering as to whether there was any bias on the part of the S.S. Sodhi, J. of the Punjab and Haryana High Court, as his Lordship then was, it was observed :-

"... When a person is appointed to an all india Service, having various State Cadres, he has no right to claim allocation to a State of his choice or t his home State. The Central Government is under no legal obligation to have options or even preferences from the officer concerned. ..."

".... We may examine the question from another angle. A selected candidate has a right to be considered for appointment to the IAS but he has no such right to be allocated to a cadre of his choice or to his home State. Allotment of cadre is an incidence of Service. ...."

10. Yet again in Tata Cellular v. Union of India , the Apex Court while considering the doctrine of necessity held that Dr. B.R. Nair, how had although participated in the proceeding, is not a decision-maker, the allegation of mala fide cannot be said to have been proved.

11. The aforesaid view has been reiterated recently by the Apex Court in Kumaon Mandal Vikas Nigam Ltd. v. Grija Shankar Pant and Ors. AIR 2001 SC 24 in the following terms :-

"32. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn there from. In the event however the conclusion is otherwise inescapable that there is existing a real danger of bias the administrative action cannot be sustained. If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this context that we do record our concurrence with the view expressed by the Court of Appeal in Locabail case (supra)."

12. In Rajendra Roy's case (Supra), whereupon Mr. Tikku himself relied, the law is stated in the following terms :-

"7. ... It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. We are in agreement with the Central Administrative Tribunal that the appellant has not been able to lay any firm foundation to substantiate the case of malice or mala fide against the respondents in passing the impugned order of transfer. it does not appear to us that the appellant has been moved out just to get rid of him and the impugned order of transfer was passed mala fide by seizing an opportunity to transfer Shri Patna to Orissa from Calcutta. It may not be always possible to establish malice in fact in a straight-cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions. In this case, we are unable to draw any inference of mala fide action in transferring the appellant from the facts pleaded before the Tribunal... "

13. Yet again in State of Punjab, etc. v. V.K. Khanna and Ors. 2001 (3) SLJ 402, the Apex Court held:-

"7. The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn there from. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained; If on the other hand, allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the bias therefore would not arise."

RE : JURISDICTION OF THE COMPETENT AUTHORITY :-

14. In the Court of Inquiry proceedings, it has been held :-

"1. I agree with the opinion of the court.

2. After having examined the evidence on record, I find that the following personnel were involved in various lapses which are amplified in the succeeding paragraphs along with my directions in each case.

IC-28899W Brig RP Singh, VSM, Ex Cdr 35 Inf Bde

3. I Find that the officer is blameworthy on following counts :--

(a) Fro falsely stating on oath that he had allotted a house to Rfn Satish Kumar of 6/5 GR at Delhi as a welfare measure whereas as per Rfn Satish Kumar he had never applied for accommodation at Delhi.

(b) For allotting House No P 66/1 at Vasant Range JCOs married accommodation, property of Govt to Nk(Hony) Tupper Singh (Retd), an unauthorized person, from July 1998 to Oct 2000 without levying rent and allied charges.

(c) For instructing Col PK Sharma and Maj SK Sharma to disregard the report sent by HQ Delhi Area and to structure the Court of Inquiry ordered by him by instructing that the incident of sale of liquor be not highlighted.

(d) For producing a letter before the Court of Inquiry dated 16 May 99 written by IC-3482L Col JP Anklesaria, ex CO 6/5 GR, knowing fully well that the letter was in June 2001 at his own behest.

(e) For giving false certificate in Annual Adm Inspection Brochures for the year 1998-1999 and 1999-2000 that all accounts have been correctly reflected whereas Combined Amenity Fund account and Extension Counter Canteen account were not reflected in the brochures.

(f) For fudging the state of accounts of main canteen in the Annual Adm Inspection Brochures for the years 1998-1999 and 1999-2000.

(g) For allowing sale of liquor from HQ 35 Inf Bde Extension Counter Canteen located at Shankar Vihar from mid 1998 till October 2000, in violation of HQ Delhi Area letter No 3712/A/CAN/Q5 dated 18 Feb 98, which authorised HQ 35 Inf Bde to open an Extension Counter at Shankar Vihar but forbade sale of liquor.

(h) For unauthorisedly purchasing liquor worth Rs. 4,28,975/- from CSD canteen of HQ 35 Inf Bde from July 1999 to December 1999 and selling it to civilians/unauthorized person.

(i) For spending Rs. 2 lakhs to 2.5 lakhs of regimental funds on the Flag Staff House, without permission of competent authority in violation of AG's Branch, Army Headquarters letter No. A/57035/AG/PS-3(A) dated 24 Oct 1998, during his tenure as Commander, 35 Inf Bde from Mar 1998 to Oct 2000.

(j) For taking loans amounting to Rs. 1.5 lakhs from the canteen sale proceeds between Mar 1998 to Oct 2000 in violation of Para 150 of the Regulations for the Army (Revised Edition) 1987.

(k) For sanctioning loans of Rs. 10,000/- to Lt Col VS Yadav (Retd) on 23 Dec 99 and Rs. 25,000/- to civilian contractor Mr Vinod Kumar and Rs. 2500/- to DOERA out of the canteen sale proceeds in violation of Para 150 of the Regulations for the Army (Revised Edition) 1987.

(l) For failing to carry out proper tendering action while allotting shops at Shankar Vihar Delhi Cantt as also at HQ 35 Inf Bde complex for the Chit Chat restaurant in accordance with para 223 of Financial Regulations part I and Stn HQ Delhi Cantt letter No 200/49/SHOP/Q4 dt 30 Sep 93."

15. In the opinion of the Court of Enquiry, the petitioner was to be blamed for :-

(a) Giving false evidence to the court, under oath, with respect to the matter specified therein;

(b) Falsifying/fabricating evidence and to misled the court in the matter specified therein;

(c) Fabricating/tampering with official documents to mislead his superior HQs/Inspecting Officers;

(d) Purchase/Sale of Liquor;

(e) Maintenance of unauthorized account;

(f) Misuse of Regimental Funds;

(g) Mismanagement of Canteen;

(h) Mismanagement at defense Officers Estate Residential Association, Shanker Vihar; and

(i) Command & Control.

It is, therefore, not a case where no case had been made out to departmentally proceed with against the petitioner. In fact, the petitioner has also not questioned the validity of the departmental proceedings.

16. Before us a document has been produced by the learned Additional Solicitor General, from a perusal whereof, it appears that a possibility of the powers tampering with the evidence by the petitioner has been said therein.

17. The power of the appropriate authority to issue and order of attachment in terms of Army Instructions AI 30/86 is not in dispute, which is in the following terms:-

"30. Attachment of officers of other units for disciplinary purposes

1. Officers against who disciplinary action is contemplated may, where necessary, be attached to other units, at the discretion of Army Headquarters or GOC-in-C Command concerned for the purpose of investigation and progress of the disciplinary case. However, such attachment will be ordered only when a prima facie case against him is established and not during investigation stage by a Court of Inquiry even for officers whose character and military reputation is likely to be a material issue at the Court of Inquiry. In exceptional cases where as offices continued retention in his appointment say as CO, is not desirable, he may be attached to another unit or formation even at the commencement of Court Inquiry.

2. During the attachment period the officers will continue to be held against the appointment held by them immediately before attachment and no replacement will be made until completion of the disciplinary proceedings.

3. This supersedes AI 106/60".

The power of attachment carries with it the power of re-attachment also.

18. In Bharat Singh and Ors. v. State Haryana and Ors. , the law is stated in the following terms :-

"13. ... Before us also no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application of HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which much appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable....."

19. In S.L. Abbas's case (Supra), in no uncertain terms, it has been held that it is not for the Court to interfere, but it is for the authorities to consider the difficulties of the concerned officer. The Apex Court held :-

"6. An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority." Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer any where in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order, - though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.

7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order to transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."

In that case also, it was held that transfer is an incidence of service and mala fide was also not found to be a ground for interfering an order of transfer.

20. We may notice that in an unreported decision of the Madras High Court in Maj. Gen. DSC Rai. v. Union of India and Ors. in Writ Petition No. 663 of 1984 decided on 27.09.1984 construing the Regulation 452-A held :-

"The very caption for Regulation 452-A, as we should see from the extract, as "transfer of Personnel from a Command before completion of Disciplinary cases". Hence, it would have no direct bearing on the question of attachment. But the argument is built by stating that when there is an inhibition even with reference to transfer of a personnel from a Command before completion of disciplinary cases, a fortiori it follows that there could not be an attachment of such a personnel outside the unit/formation even for disciplinary action. Regulation 452-A has got a place and a purpose to serve, its intendment cannot be extended to impose an inhibition with reference to attachment. The concept of attachment is, admittedly, different from the concept of transfer or posting. In my view, the purpose behind inhibiting transfer of personnel from a Command before completion of disciplinary cases is obvious. When there is an initiation of disciplinary action, a stigma gate cost on the integrity of the accused personnel. It is not desirable to have the personnel facing disciplinary action taken away from the present unit/formation to any other unit/formation. Such a personnel stands part from others and he has to go through the test of disciplinary action and only when he gets exonerated from the charges, the stigma or the cloud cast on his integrity by virtue of the pendency of disciplinary action will be erased and, naturally, at this sensitive and nebulous stage, it is desirable to have such personnel at the unit/formation, where he is or was, and even unawares, if he gate transferred elsewhere to bring him back to his original unit/formation until the disciplinary action is over. This situation has been provided by bringing in the inhibition set auth if Regulation 452-A and it serves the got a purpose behind it. IT has always been found desirable to take the officer from the sphere of his erstwhile activity where he gets the stigma or, cloud on his integrity has come to be cast, for the limited purpose of carrying on the disciplinary action."

However, the same would not mean that even for cogent and valid reasons, he cannot be attached to another unit.

21. In Chief of Army Staff and Ors. v. Major E.P. Chadha, the Apex Court held that when an Officer is attached with a unit for the purpose of completing the disciplinary proceedings under the Army Act, such attachment does not survive when he is sent to another place for trial in a criminal case. The disciplinary proceeding was questioned on the ground of bias, but therein the Presiding Officer against whom the appellant had alleged bias was removed and new Presiding Officer was appointed and on that ground it was held that the grievance of the appellant relating to bias against him also has no merit.

22. We may notice that in an unreported decision dated 28.08.1997 in Lt. Col. Benny Koshy v. Union of India and Ors., the Rajasthan High Court observed :-

"Learned Advocated appearing for the writ petitioner-appellant has not been able to show us any legal impediment on the question of holding an inquiry and there is no principle of finality attached to holding of a fact-finding inquiry of this nature. It is indeed somewhat strenuous for the writ petitioner-appellant to travel up to Assam so as to submit to the order of attachment, get stationed at the place of inquiry till the inquiry is over but as an Army Officer he has to conform to the Army discipline and no exception could be taken to such an order of attachment, as contended by the writ petitioner-appellant."

23. Yet recently in Kumaon Mandal Vikas Nigan Ltd. v. Girja Shankar Pant and Ors., AIR 2001 SC 24 it was held :-

"31. The Court of Appeal judgment in Locabail (2000 QB 451) (supra) though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient."

24. We, therefore, find no merit in this writ petition, which is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no orders as to costs.