Delhi High Court
Major General Rakesh Kumar Loomba vs Union Of India, Through Secretary ... on 2 June, 2008
Author: J.M. Malik
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Reserve : 27.03.2008
Date of Decision : 02.06.2008
+ WP(C) No.3831/2007
Major General Rakesh Kumar Loomba .... Petitioner
Versus
1. Union of India, Through Secretary
2. Chief of the Army Staff
3. Military Secretary ....Respondents
Advocates who appeared in this case :
For the petitioner : Mr. Valmiki Mehta, Sr. Advocate with
Ms. Jyoti Singh, Mr. Ankur Chhibber and
Mr. Aditya Chhiber, Advocates
For the respondents : Mr. Rajeeve Mehra with Mr. Arvind Sharma,
Mr. Priyanka, Advocates and Brig. T.
Parsad, Dy. JAG
And
+ WP(C) No.3904/2007
Major General Rakesh Kumar Loomba .... Petitioner
Versus
1. Union of India, Through Secretary
2. Chief of the Army Staff
3. Lieutenant General P K Singh
4. Adjutant General
5. Lieutenant General N S Brar ....Respondents
WP(C) No.3831-07 Page 1 of 35
WP(C)No. 3904-07
Advocates who appeared in this case :
For the petitioner : Mr. Valmiki Mehta, Sr. Advocate with
Ms. Jyoti Singh, Mr. Ankur Chhibber and
Mr. Aditya Chhiber, Advocates
For the respondents : Mr. Rajeeve Mehra with Mr. Arvind Sharma,
Mr. Priyanka, Advocates and Brig. T.
Parsad, Dy. JAG
CORAM :
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE J.M. MALIK
1. Whether the Reporters of local papers
may be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be
reported in the Digest?
J.M.MALIK, J.
*
1. This judgment shall decide two writ petitions detailed
above, which are between the same parties and deal with
identical facts and similar questions of law. The key controversy
which revolves around the present writ petitions is about the
rights of a delinquent in context of Army Rule 180. Petitioner
Major General Rakesh Kumar Loomba was awarded a recordable
censure on 07.04.2007. A court of inquiry(hereinafter referred as
COI) was convened by Head Quarter South dated 6 th December,
2006 to investigate the circumstances "under which a swimming
pool measuring approximately 25 metre X 13 metre with average
WP(C)No. 3904-07
depth of 1.8 metre was constructed at Hisar in the garb of
providing Static Water Tank (SWT) by irregular utilization of funds
for the purpose other than the sanctioned works." The COI was
also required to enquire into the source of funds for construction
of the said swimming pool, and whether or not sanction of
competent authority was obtained and financial irregularities, if
any, committed. Consequent upon that the petitioner was not
promoted. Thereafter, two above mentioned writ petitions were
filed with the prayers to quash the recordable censure award
passed by the respondents along with other connected
proceeding and qua second writ petition the petitioner be
promoted to the rank of Lieutenant General on the basis and
foundation of the selection made by the competent authority with
all consequential benefits.
2. Adumbrated in brief the facts of these writs are these. The
petitioner was commissioned in the Armoured Corps on
14.06.1970. In the year 1983, the petitioner attended Defence
Services Staff College, Wellington and obtained degree of M Sc
(Defence Studies). He was posted as a Brigade Major of an
Infantry Brigade on The Line of Control, deployed opposite
Pakistan during January 1984 to February 1986 on promotion to
WP(C)No. 3904-07
the rank of Colonel. He was posted as Colonel Military Secretary
of a Corps during the period August 1988 to June 1990 and
commanded an Armoured Regiment from December 1990 to June
1993. Thereafter he was selected for the Higher Command
Course at College of Combat, Mhow and obtained the
qualification of M.Phil. from Devi Ahilya Vishwa Vidyalaya, Indore
during July 1993 to April 1994. He was then posted as Colonel
General Staff of an Armoured Division in June 1994 to August
1996. He became Colonel Instructor at School of Armoured
Warfare, Armoured Corps Centre and School, Ahmednagar in
September 1996 to December 1997. The petitioner was awarded
General Officer Commanding-in-Chief Central Command,
Commendation on 26.01.1997. The petitioner commanded an
independent Armoured Brigade, including during 'Operation Vijay'
beween the period January 1998 to 2001. The petitioner was
again awarded General Officer Commanding-in-Chief Western
Command, Commendation on 26.01.2001. He also attended the
prestigious National Defence College Course, New Delhi during
January 2001 to November 2001. He was Brigadier General Staff
of a Corps, including the period of 'Operation Parakram' during
December 2001 to January 2004. The petitioner assumed the
WP(C)No. 3904-07
command of 33 Armoured Division on 16.02.2004 and was
awarded General Officer Commanding-in-Chief Southern
Command, Commendation on 17.02.2004.
3. However, the problem started when the petitioner
accorded Administrative Approval for construction of a Static
Water Tank(hereinafter referred as SWT) for Hisar Military Station
while working as Major General. The petitioner vide letter dated
29.02.2004 gave the approval on the following terms :
"1. Under the provisions of Government of India
Ministry of Defence letter No.95533/POL/CSS/E2/WPC
/687/DO-II/D(W-1) dated 17 January 86, as amended
vide Government of India, Ministry of Defence letter
No 3(7)/93/D(Works) dated 26 August 98, General
Officer Commanding 33 Armoured Division accepts the
necessity and accords administrative approval for
construction of a static water tank of 110 KL capacity
and a water pump for fire fighting in Hisar Military
Station amounting Rs.9,81,000/-(Rupees nine lac
eighty one thousand only) as per approximate
estimate Part I and II attached.
2. The works cater for long term requirement in
terms of Para 16A(b), Defence Works Procedure 1986
and will be carried out by MES or under arrangements
by them.
3. The expenditure involved will be debitable to
Major Head 2076 Defence Service (Army) Minor Head
III, Sub Head „B‟ Low Budgeted Work.
4. X X X X"
WP(C)No. 3904-07
4. Sanction of General Officer Commanding 10 Corps including
technical approval of Chief Engineer Bhatinda Zone was obtained
and there were no observations regarding dimensions, costing,
technical specifications or any other related issues. The
operational role of the Armoured Division was changed in
February 2004, necessitating establishment of encounter
crossings across canal obstacales, including in the forward tier of
enemy defences. As such the petitioner directed the Brigade
Commanders and Commanding Officers to carry out extensive
training in negotiating water obstacle systems, specially
swimming across canals in full battle loads, with improvised
expedients and for this purpose they were to ensure that all
troops were proficient in watermanship to rule out any loss of life
due to drowning. The petitioner‟s Brigade Commanders and
Commanding Officers recommended dual usage of the SWT to
include watermanship training. The sanction of the Lieutenant
General T.S. Pathak, AVSM, YSM, the then General Officer
Commanding 1 Corps was also obtained. Subsequently, other
facilities were added as and when projected for its dual
utilistaion. In order to enable dual use of the SWT for
WP(C)No. 3904-07
watermanship training, the requirement of a water re-cycling and
purification plant was projected.
5. The above said proposal was sanctioned vide order dated
09.03.2004 by Mr. J.S. Kohli, Brigadier Administration for GOC.
The relevant portion runs as follows :
"3. Sanction of GOC 10 Corps is hereby conveyed for
execution of the following work under Major head 4076 Capital
Outlay on Defence Services Sub Head 01, Major Head 202
construction works (2) New Expenditure during financial year
2003-04:-
Ser Stn Job No Name of Wk Ceiling Funds
No. (Lakhs) (Lakhs)
81 Sub Area
(a) Hisar 33AD/LBW Construction of a 9.81 9.81
/W-3/ static water tank of
2003-04 110 KL capacity and
water pump for fire
fighting in Hisar
Military Station
6. Again petitioner had forwarded "statement of case for
obtaining sanction of competent financial authority for incurring
expenditure of Rs. 3 lakhs on training cum welfare facility" vide
letter dated 17.04.2004. In para nos. 1 & 3, he gave its
justification. The same are reproduced as follows :
WP(C)No. 3904-07
"1. Presently Hisar Military Station does not have
facility for training of troops in crossing of canal/water
obstacles. A water storage tank of 1,10,000 Gallon
capacity (Size 28 meters by 13 meters) is under
construction for fire fighting purpose. By installing a
water filtration plant, it can be used not only for
storage of water for fire fighting but also for swimming
by troops and families of all ranks in the station. An
expenditure of Rs.3,00,000/-(rupees three lacs only) is
likely to be incurred for installation of the filtration
plant.
2. X X X X
3. Hisar Military Station accommodates troops and
families of 33 Armoured Division. Being an armed
division, troops of the fmn have to be trained for
offensive operations in developed and semi developed
terrain involving crossing of water obstacles. Facility
for training of troops in swimming presently does not
exist in the station. Construction of a full fledged
swimming pool in the station is unlikely to fructify in
the near future. A water storage tank of 1.1 lakh
Gallon capacity is already under construction for
storing of water for fire fighting purpose. Installation
of a water filtration plant at the tank would enable use
of the tank for dual purpose i.e. for storage of water
for fire fighting as well as for training of troops in
swimming and crossing water obstacles. The tank
would also be used by families of all ranks in station
for swimming as a welfare measure."
7. The said proposal was sanctioned vide order dated
27.04.2004 which runs with the caption :
"Sanction of the GOC 1 Corps to incur an
expenditure of Rs.3,00,000.00 (Rupees three
lakhs only) out of GOC fund HQ 33 Armoured
Division for installation of water filtration plant.
It is noteworthy that sanction was not given by 10 corps.
WP(C)No. 3904-07
8. The petitioner commanded 33 Armoured Division from
16.02.2004 to 27.05.2005 and was thereafter posted as
Commander, Higher Command Wing. Thereafter, 19 months
later a COI was convened by respondent no. 3 on 06.12.2006 and
finalized on 31.01.2007. Thereafter, the show cause notice dated
06.02.2007 was served to the petitioner. Its relevant extract is
produced as follows :
"1. A court of inquiry was convened by this HQ vide
Convening Order No. 55933/C of I/Hissar/Q3W dated
06 Dec 2006, to investigate the circumstances under
which a swimming pool measuring approximately 25
mtr x 13 mtr with an average depth of 1.8 mtr was
constructed at Hissar Military Station in the garb of
providing Static Water Tank (SWT) by irregular
utilization of funds for the purpose other than the
sanctioned works. The court was also required to
enquire into the source of funds for construction of the
said swimming pool and whether or not sanction of
competent authority was obtained and financial
irregularities, if any committed.
2. On perusal of the court of inquiry proceedings, it
is revealed that Major Work Projects (MWP) for
swimming pool was projected by HQ 33 Armd Div as
part of their projections for MWPs in the years 2000-
2001 and 2001-2002, however this was not listed in
the approved list as issued by QMG Branch vide their
letters dated 13 April 2000(Annx I). This work was
again projected by HQ 33 Armd Div to HQ 10 Corps for
the year 2005-2006 but the same was not included in
the MWP fwd by HQ 10 Corps to HQ Western
Command. Thereafter, a Board of Officers was
convened by HQ 33 Army Div vide Convening Order
No. 4204/13/MW/Q3W(PC-9) dated 27 Feb 04 to
WP(C)No. 3904-07
examine the requirement for construction of Static
Water Tank of 110 KL capacity and a water pump for
fire fighting at Hissar Military Station. The board of
officers visited the site on 27 Feb 04 and
recommended the following :-
(a) A Static Water Tank of size 25 mtr x 13 mtr with
average depth approx 1.8 mtr i.e 110 KL capacity
along with water pump and necessary connection
should be provided at Hissar Military Station.
(b) The location of Static Water Tank should be in
close vicinity of Centralized Ammunition Dump in the
Station.
(c) Since the work is of important nature and
authorized in the scale of accommodation, therefore,
the same should be sanctioned on top priority.
Consequent thereof, you as GOC 33 Armd Div
had vide orders dated 29 Feb 2004 accorded
administrative approval for construction of a Static
Water Tank of 110 KL (amended to 1.10 lac gallons)
capacity and a water pump for fire figting in Hissar
thereof. The said work was executed through the MES
and on ground a swimming Pool was constructed at
distance of approx 2.5 Km from the Central
Ammunition Dump, thereby contravening the terms of
administrative approval and therein willfully Swimming
Pool at Hissar. For the construction of the said
swimming pool, expenditure was incurred out of Public
Fund, Regimental Fund and Environmental Fund as
follows :
(a) Public Fund - Rs. 16,43,700/-
(b) GOC Fund - Rs. 7,72,156/-
(c) Environment Fund - Rs. 1,05,000/-
3. The said court of inquiry was placed before the
GOC - in - C this HQ, who has observed the following
lapses on your part :
WP(C)No. 3904-07
(a) That you as GOC 33 Armd Div had failed to carry
out the expenditure of Public Funds for the purpose for
which they were sanctioned in violation of the duty
cast upon you in terms of Para 20 of the Financial
Regulations, Parts I, 1983.
(b) That you improperly sanctioned expenditure out
of GOC Fund and Enviornmental Fund, details as
mentioned in Para 2 (b) and (c) above.
4. It appears to the GOC-in-C that his censure in
appropriate form is called for, or the above lapses on
your part.
5, 6 & 7 x x x x"
9. The petitioner submitted his reply to the above-said show
cause notice vide reply dated 15th March, 2007. Thereafter, the
petitioner received a censure order by respondent No.3 dated 7 th
Apri, 2007. The relevant extract reads :
"2. Having considered the reply submitted by the
General Officer, I have come to the conclusion that the
same is devoid of merit and lacks substance. He has
committed the following lapses:-
(a) He as GOC 33 Armd Div, had accorded
Administrative Approval for the construction of a Static
Water Tank of 110 KL capacity alongwith a water
pump. The manner in which the Static Water Tank
was constructed without any water pump, at a
distance of approx 2.5 KM from the Central
Ammunition Dump had thus defeated the purpose for
which Administrative Approval had been accorded.
He, being the controlling officer of the Public funds.
Deviated the use of said funds from the purpose for
which they were provided for. He thus violated Para
20 of the Financial Regulations, Part - I, 1983.
WP(C)No. 3904-07
(b) As GOC 33 Armd Div, he improperly
accorded sanction of expenditure out of GOC‟s Fund
for creation of ancillaries for the said swimming pool,
contrary to the instructions contained in Army Order
9/2001/PS.
3. For the said lapses, I direct my „Severe
Displeasure (Recordable)' be conveyed to IC-
24283L Maj Gen R.K. Loomba of HC Wing, Army War
College, Mhow."
10. The Special Selection Board was held at Army Headquarters
comprising of Chief of Army Staff, Vice Chief of Army Staff and all
Army Commanders for consideration of officers of the rank of
Major General for promotion to the rank of Lieutenant General on
30.09.2005. The petitioner was approved for the acting rank of
Lieutenant General, General Cadre in 'Command and Staff'
stream by the Government on 05.04.2006.
11. The petitioner was placed at serial 13. However, Major
General D S Bartwal, VSM, who was placed at serial 15 was
promoted to the rank of Lieutenant General. Again Lieutenant
General (then Major General) BS Jaswal, AVSM, VSM, who was
placed at serial 14, was also promoted. As on 1st January, 2007
there was no ban imposed on the petitioner for promotion to the
rank of Lieutenant General. Since there was a clear vacancy
available in "command and staff" stream, the petitioner‟s
performance continuing to be satisfactory and he being in
WP(C)No. 3904-07
medical category SHAPE-1, the petitioner should have been
promoted before officers junior to the petitioner.
12. The Court of Inquiry examined few witnesses at the
petitioner‟s back, took a number of documents on record without
the same being produced in evidence and committed other
illegalities. Colonel D.V.S. Rana, Colonel Q (Works), was
examined on 26th December, 2006 in the absence of the
petitioner and all documents were taken on record during
petitioner‟s absence. No opportunity was granted to the
petitioner to cross-examine the said witness. HQ 10 Corps letter
dated 9th March, 2004 states, "sanction of GOC 10 Corps is
hereby conveyed for execution of the following works under
Major Head 4076 capital outlay on Defence Services Sub Head
01, Major Head 202 Construction Works (2), new expenditure
during FY 2003-2004". The said document was not intentionally
produced by Colonel DVS Rana which if produced would have
exonerated the petitioner completely. The report of the
"Comptroller of Auditor General of India, Union of Government,
Defence Services (Army and Ordnance Factories) for the year
ending March 2006" should have been processed by HQ Western
Command and in case of any anomaly, the COI should have been
WP(C)No. 3904-07
ordered by GOC-in-C Western Command. There is jurisdictional
error in convening of the COI.
13. The Auditor had incorrectly clubbed the works of different
nature, sanctioned by difference CFAs, in different time frames
and at different sites. The petitioner had only sanctioned a LBW
costing Rs. 9.81 lacs which was in his financial powers and for
which sanctions had been accorded but has now been blamed for
misuse of delegated powers of sanctioning authority amounting
to Rs. 23.38 lakhs as per the censure order, whereas in para 2(a)
of the show cause notice the petitioner was found blameworthy
for incurring expenditure out of public fund amounting to
Rs.16,43,400/- even though Administrative approval by petitioner
is meaningless till sanctioned by the higher authorities.
14. The respondents have contested both these writ petitions.
The main objection raised by the respondents is that the work in
question was not accomplished as per requirements and the
petitioner transgressed the limits. The alleged duality of purpose
of construction was raised at late stage. The same was increased
from 110 KL to 1.10 Lakh Gallons. This stage was sought by
communication dated 14.03.2004. The relevant portion of the
letter is reproduced as follows :
WP(C)No. 3904-07
"(a) Capacity erroneously mentioned as 110 KL may
please be amended to 1.10 LG (size remaining the
same), at following places :
(I) Adm Approval Para 1, line 5.
(II) BOO, Para 3(a) line 2.
(III) S of C, Para 4.
(IV) S of C, Para 6, line 9.
(V) Scrutiny certificate of GE, line 2.
(VI) AE Part I, Name of wk.
(VII) AE Part II - Name of wk and coln No.
2(Description.
(b) Authority in AE Pt II may please be corrected
from 12 (a to f), which are reproduced as follows.
Ser. Description of Items Floor Special Planning Notes
No. Area Facilities
(SM)/
Scale
12. Static Water Tanks Capacity
(a) Ammunition Depots 225 KL There should be
(b) Explosive 225 KL suitable
Magazines, arrangements for
Ammunition and replenishing the
Explosive Storage static water tanks
Areas expeditiously.
(c) POL Depots 225 KL Irrespective of its
holding more than location and distance
2250 KL of POL from source of water
supply it should not
(d) Installations 225 KL
take more than 18
holding more than
hrs to completely
2750 Cubic Metres of refill the tank.
timber Distance from the
(e) Bomb Dumps 110 KL area under
(f) Explosive Process 110 KL protection should be
Area as under -
(a) 100M to 200M
(b) 100M to 200M
(c) 100 M to 200M
(d) 100M to 150 M
(e) 100M to 200M
(f) 100M to 200M
WP(C)No. 3904-07
15. On 14.05.2004 tenders were invited. On 11.12.2004 works
stand completed. The photographs were attached with the
counter affidavit which clearly go to show that :
"(i) in place of a Static Water Tank, a Swimming Pool
is constructed;
(ii) in place of Class Rooms, Changing Rooms are
constructed;
(iii) the entire area is bounded by a Wall;
(iv) obviously, the same would be inaccessible for
vehicles necessary to be deployed at the time of a Fire
at the Depot or elsewhere;
(v) besides the main Swimming Pool, a Baby Pool /
Child Pool is also constructed as well as a Jacuzzi;
(vi) no Water Pump installed;
(vii) no necessary Pipe Lines for the purposes of fire
fighting installed;
(viii) the Swimming Pool, admittedly, exists at a
distance of about 2.5 kilometers from the Ammunition
Depot."
16. The petitioner contends that he approached 1 Corps for
release of funds and same were sanctioned for Filtration Pump.
On 09.04.2004, 1 Corps was approached for expenditure of Rs.3
Lakhs. Whenever public funds are utilized, the approval is
required from 10 Corps. It is explained that for use of Regimental
Funds, administrative approval was required from 1 Corps. Thus,
WP(C)No. 3904-07
the approvals of the Works Branch and Administrative Branch are
different. At any cost, 1 Corps confirmed that it did not accord
any sanction for dual use.
17. Vide letter dated 27.04.2006, the Director of Audit, Defence
Services, Western Command, conveyed and enclosed the draft
photographs for the report of CAG for the year ending March,
2006 relating to the regular construction of works etc. Ministry of
Defence made request for information, documents and
comments. The commends were forwarded but were found not
satisfactory by Ministry of Defence. A detailed inquiry was
ordered by the Ministry of Defence. Pursuant to the directions
Brigadier Manik Sabharwal from 1 Corps was appointed for
investigation. Brigadier Manik is an Engineering Officer and a
Commander of an Engineering Brigade. On 24.11.2006
recommendations of General Officer Commanding 1 Corps on the
One Man Inquiry were received. On 06.12.2006 court of inquiry
was convened. Lt. General N.S. Brar was appointed as the
Presiding Officer of the Court of Inquiry. He was not posted as
Corps Commander at that time. He took over as Corps
Commander on 01.04.2006. It is explained that GOC 1 Corps
WP(C)No. 3904-07
would have been ineligible to be appointed as Presiding Officer,
since he had given recommendations for the One Man Inquiry.
18. Entire proceedings including statements of witnesses were
placed on the record. The court itself decided to invoke AR 180
as statement of witness no. 6 was likely to affect the reputation
of Major General R.K. Loomba, the petitioner, Brigadier R.C.
Chadha, Colonel B.S. Badwal, Colonel M.K. Bindal. Major General
R.K. Loomba, the petitioner himself cross-examined witness no. 6
in exercise of his rights in terms of AR 180. Colonel M.K. Bindal
and Colonel B.S. Badwal cross examined witness no. 6 in exercise
of their rights in terms of Army Rule 180. Major General R.K.
Loomba also cross examined witness no. 8 Colonel B.S. Badwal,
witness no. 9 Brigadier R.C. Chadha in exercise of his rights in
terms of AR 180. Major General R.K. Loomba cross examined
witness no. 3 in exercise of his rights in terms of Army Rule 180.
19. We have heard the counsel for the parties at considerable
length. The principal argument urged by the learned counsel for
the respondents has two prongs. Firstly, the AR 180 was not
violated and secondly that an employee of a State is not entitled
to a promotion to a higher post as a matter of right. The learned
counsel for the respondent had placed reliance on following
WP(C)No. 3904-07
cases. In Lt. Col Ramesh Mohan Vs. Union of India and others, Mil
LJ 2002 J & K 166, it was held :
"24. We have discussed the facts in detail. No where
name of appellant appears. It is a matter of
investigation and only on investigation it would be
known whether any offence is committed or not and if
committed who are the responsible persons for the act
or the omission. Therefore, it cannot be said that
when Court of Inquiry is constituted to collect
evidence, the person who is likely to be prosecuted,
should be also called at the enquiry proceedings and
should be given an opportunity of cross-examining the
witnesses. In the opinion of this Court, it would be
beyond the scope of Rule 179 of the Army Rules to
permit a person to remain present at the enquiry
which is constituted for the purpose of collection of
evidence and to make report only. When it is not
certain as to who are the persons involved, there is no
question to invoke Rule 180 of the Army Rules.
25. It is required to be noted that so far as Rule 180
is concerned, if there is no specific allegation, then
one may not be knowing about a person who is
responsible for act or omission. It is in view of this, it
appears that the provision has been made in later part
of Rule 180, which reads as under :-
"180.............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 an fully understands his
rights under this rule."
20. The facts of this case do not dovetail with the facts of this
case. In the instant case the name of the petitioner appeared.
This was not a case of investigation. In the instant case, there
was specific allegation and the person was known.
WP(C)No. 3904-07
21. The learned counsel for the respondent has also cited
another case reported in Maj A.R. Malhotra Vs. Union of India and
others, Mil LJ 2005 J & K 184. In this case the court of inquiry
commenced on 10.07.2003. Appellant was called to appear for
the first time on 15.07.2003. Witnesses examined in absence of
appellant were re-called and appellant cross-examined them.
Consequent to court of inquiry, Commanding Officer ordered for
recording of Summary of Evidence. Same was challenged on the
ground of violation of Army Rule 180 for not recording the
statements of witnesses in presence of the appellant. It was held
that there was no violation of Army Rule 180. It was further held
that question of giving opportunity to participate in court of
inquiry arises only when it appears that ongoing inquiry is likely
to affect the character or Military Reputation. There can be no
grievance against the commencement of inquiry in absence of
concerned person. Army Rule 180 is only enabling provision to
participate in the proceedings before the court of inquiry. Court
of inquiry by itself means little unless the Commanding Officer
decides to get Summary of Evidence recorded. Option under
Army Rule 24 after recording of Summary of Evidence yet to be
WP(C)No. 3904-07
exercised by Commanding Officer. It was held that the grievance
of the appellant was premature and the appeal was dismissed.
22. This case is also distinguishable from the instant case as in
this case all the witnesses were recalled and the appellant in that
case had cross-examined them. In that case the inquiry was not
likely to affect the character or military reputation.
23. The last authority cited in this context is reported in Major
General Inder Jit Kumar Vs. Union of India and others, 1997 (9)
SCC 1, wherein, it was held :
"7. Under Rule 177 of Army Rules, 1954, a Court of
Inquiry can be set up to collect evidence and to report,
if so required, with regard to any matter which may be
referred to it. The Court of Inquiry is in the nature of a
fact-finding inquiry committee. Army Rule 180
provides, inter alia, that whenever any inquiry affects
the character or military reputation of a person subject
to the Army Act, full opportunity must be afforded to
such a 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 defence of his character or
military reputation. The presiding officer of the Court
of Inquiry is required to take such steps as may be
necessary to ensure that any such person so affected
receives notice of and fully understands his rights
under this rule. The appellant was accordingly present
before the Court of Inquiry. Witnesses were examined
by the Court of Inquiry in the presence of the appellant
and were offered to the appellant for cross-
examination. He, however, declined to cross-examine
WP(C)No. 3904-07
the witnesses. Instead, the appellant moved an
application for an adjournment for preparing his
defence. He also applied that the evidence adduced
before the Court of Inquiry should be reduced to
writing. The Court of Inquiry noticed that sufficient
time had been granted to the appellant for preparation
of his defence after receipt of the Court of Inquiry
proceedings by him. Hence his application for
adjournment was refused. The hearing on charges
took place in the presence of the appellant. At the
conclusion of the hearing on charges, an order was
passed that evidence be reduced to writing and a
recommendation was made to convene a General
Court Martial for trial along with recommendations on
charges to be framed. Thereafter the charges were
finalised, charge-sheet was issued and General Court
Martial was convened.
8. The appellant has also contended that a copy of the
report of the Court of Inquiry was not given to him and
this has vitiated the entire Court Martial. The appellant
has relied upon Rule 184 of the Army Rules, 1954 in
this connection. Rule 184, however, provides that the
person who is tried by a 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 defence at his trial.
There is no provision for supplying the accused with a
copy of the report of the Court of Inquiry. The
procedure relating to a Court of Inquiry and the
framing of charges was examined by this Court in the
case of Major G.S. Sodhi v. Union of India (1991) 2 SCC
382. This Court said that the Court of Inquiry and
participation in the Court of Inquiry is at a, stage prior
to the trial by Court Martial. It is the order of the Court
Martial which results in deprivation of liberty and not
any order directing that a charge be heard or that a
summary of evidence be recorded or that a Court
Martial be convened. Principles of natural justice are
not attracted to such a preliminary inquiry. Army Rule
180, however, which is set out earlier gives adequate
protection to the person affected even at the stage of
WP(C)No. 3904-07
the Court of Inquiry. In the present case, the appellant
was given that protection. He was present at the Court
of Inquiry and evidence was recorded in his presence.
He was given an opportunity to cross-examine
witnesses, make a statement or examine defence
witnesses. The order of the Court of Inquiry directing
that a Court Martial be convened and framing of
charges, therefore, cannot be faulted on this ground
since it was conducted in accordance with the relevant
Rules"
24. The facts of this case are also different. In this case the
Army Man had himself refused to cross examine the witnesses.
That was a preliminary enquiry. Opportunity to cross-examine
the witnesses in this case was given but the same was not
availed of. The evidence was recorded in the presence. COI was
conducted in his presence. The law laid down in this authority
rather applies to the case of the petitioner on all fours.
25. The counsel for the respondent has drawn our attention
towards cases reported in Coal India Ltd. & Ors. Vs. Saroj Kumar
Mishra, 2007 (5) SCALE 724, (Union of India & Ors. Vs. Sangram
Keshari Nayak, 2007 (6) SCALE 348), Santosh Kumar and others
Vs. G.R. Chawla and others, (2003) 10 SCC 513, Union of India
and others Vs. N.R. Banerjee and others, (1997) 9 SCC 287, Govt.
of A.P. and another Vs. B. Vasantha Rao and another, (1999) 5
SCC 183, Government of Orissa Vs. Haraprasad Das and others,
(1998) 1 SCC 487, Brig. MJS Bains (Retd) AVSM Vs. UOI and
WP(C)No. 3904-07
others,(DB Delhi High Court) in Civil Writ No. 4338/1993, decided
on 16.05.1997, Nathu Singh Shekhawat Vs. Union of India &
others, S.B. Civil Writ Petition NO. 1251/97 etc. The gist of all
these authorities is that no officer, however, can claim or enforce
any right that the vacancies should be filled in a particular
manner so as to make a room for him for promotion. The
petitioner on his empanelment has only a right to be considered
for promotion subject to the availability of vacancy and his
chance. It is not open to him to insist and enforce any alleged
right that the vacancies available should be so rotated in
different components of the Army to grant him promotion
immediately.
26. The counsel for the respondent has also produced copy of
the record of Add Dte Gen Discipline And Vigilance, (AG/DV-1),
Provision DV Ban Officer. Its para nos. 3 & 7 are reproduced as
follows :
"3. Provision DV Ban is imposed only when the
competent disciplinary authority takes cognizance of
an offence. Cognizance is taken of an offence as soon
as the disciplinary authority, competent for the
purpose, applied its mind to the offence with the
intention of initiating disciplinary or administrative
proceedings against the offender in respect of the
offence. Imposition of DV Ban therefore has its origin
in the decision of the Commander to initiate
disciplinary / administrative action. Similarly, the
WP(C)No. 3904-07
removal of Provisional DV Ban is contingent upon the
finalization of disciplinary / administrative proceedings
against the officer concerned by the competent
authority. The duration of provisional DV Ban can
therefore be minimized if the cases are finalized
expeditiously. Career management as a concept is
closely linked with the Discipline and Vigilance aspects
of the officer concerned. It is, therefore imperative
that commanders in chain must finalise disciplinary /
administrative action cases as expeditiously as
possible in the interest of both the officer and the
organization.
7. Provisional DV Ban will be imposed only when a
competent disciplinary authority takes cognizance of
an offence. A competent authority takes cognizance
of an offence when he decides to proceed
(disciplinarily or administratively) against the person
who is alleged to have committed the offence. The
word "cognizance" issued to indicate the point in time
when a disciplinary authority applies his mind for the
purpose of proceedings against the individual(s) either
disciplinarily or administratively. At the stage of
taking cognizance the competent authority has to be
satisfied that prima facie, the allegation(s) made
against the individual makes an adequate case for
summary trail/GCM/SGCM or an administrative action
resulting in termination of service or otherwise. This
means where a Court of Inquiry has been held,
Provisional DV Ban should only be imposed
when directions have been issued thereupon.
Where an administrative action is contemplated
without holding a Court of Inquiry Provisional DV Ban
is to be imposed from the date of issue of „Show Cause
Notice‟ containing definite allegations against such an
officer. Such „Show Cause Notice‟ should be based on
relevant documents/papers to which the competent
authority has applied his mind."
27. The arguments urged by the learned counsel for the
respondent have left no impression upon us. In this case the
WP(C)No. 3904-07
presence of the petitioner was essential. It was also essential
that evidence of the witnesses including the examination-in-chief
should have been recorded in his presence. He should have been
given an opportunity to cross-examine all the witnesses. This
was not a preliminary enquiry. No effective opportunity of
defence was given. The main grouse of the petitioner is that he
was not given a chance to cross-examine the witnesses. It must
be borne in mind that cross-examination of witness is the life
blood of our legal system. It is the only way a Judge can decide
whom to trust. An answer during the cross-examination may
wreck one‟s case. It was argued on behalf of the petitioner that
all the above said witnesses did not state the relevant facts or
those facts were not disclosed which he wanted to be placed on
the record.
28. Our view is supported by the following cases. The Division
Bench of this court in Lt. General S.K. Dahiya Vs. Union of India
and others, in WP(C)No.15526/2006, decided on 24.08.2007 held:
"15. We have given our careful consideration to the
submissions made at the bar and perused the record.
In the light of the view that we are taking on the
question of the violation of the Rule 180 of the Army
Rules, we consider it unnecessary to go into the
alternative grounds urged by Mr. Sud in support of the
writ petition. We would, therefore, confine our
WP(C)No. 3904-07
discussion to the validity of the proceedings by
reference to the alleged violation of Rule 180 of the
Army Rules. Rule 180 is as under:
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
defence 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 received notice of and fully understands
his rights, under this rule.
16. A plain reading of the above would show that the
same is intended to give to any person subject to the
provisions of the Act full opportunity to defend
himself, in any inquiry that may affect his character or
military reputation. The opportunity has to be in
regard to the following:
1) To be present throughout the inquiry.
2) to make any statement in the inquiry.
3) to give any evidence he may wish to make or
give at the inquiry.
4) to cross-examine any witness whose evidence
in his opinion affects his character or military
reputation.
5) to produce any evidence in defence of his
character or military reputation.
WP(C)No. 3904-07
34. ......There is in our opinion no merit in that
contention. Rule 180 envisage "Full Opportunity" to be
afforded to the person whose character or military
reputation is likely to be affected in the inquiry. The
expression "Full Opportunity" appearing in Rule 180
leaves no manner of doubt that if no opportunity is
afforded or if the opportunity is not full, the same
would not meet the requirements of Rule 180. Reading
out the documents especially when some of them run
in scores of pages is no substitute for providing to the
officer concerned a copy of such documents. If the
documents were relevant to the inquiry as indeed was
the position in the instant case and if the Court of
Inquiry had considered it necessary or fair to read the
same over to the petitioner, there was no earthly
reason why copies of the documents could not be
furnished especially when the same would enable the
petitioner to formulate his response in defence to the
charge of irregularities. There is also no gain saying
that the right of making a statement, of giving any
evidence and of cross-examining any witness or
producing any witness in defence of his character or
military reputation would include the right to receive
from proper custody the documents that are relevant
for that purpose. The right of cross-examination or the
right to make a statement or adduce defence
evidence would be rendered illusory if the Court of
inquiry who has exclusive custody over the documents
that are relevant to the controversy deprives the
officer of an opportunity to look into those documents
or to use the same for establishing his defence. We,
therefore, have no hesitation in holding that the
provisions of Rule 180 of the Army Rules were violated
not only in regard to the petitioner's right to adduce
evidence in his defence but also in regard to his right
to demand copies of documents forming part of the
inquiry.
WP(C)No. 3904-07
29. In Lt. Gen S.K. Sahni Vs. COAS, in WP(C) No.11839/2006,
decided on 11th January, 2007 by DB of this court cited by counsel
for the petitioner, it was held :
"19. While spelling out in unambiguous terms, the
different protections available to a person under Rule
180, a Division Bench of this court in the case of
Col.A.K. Bansal v. UOI and others, CWP 1990/88,
decided on 18.1.1991 while quashing the proceedings
of the court of inquiry and their findings and the
penalty of severe displeasure imposed upon the
petitioner in that case, held as under:-
"The rule incorporates salutary principles of
natural justice for a fair trial and full right of being
heard, to a person whose character or military
reputation is likely to be affected in a court of enquiry.
Four rights are expressly recognized-(1)The officer has
a right to be present throughout the enquiry meaning
thereby that the entire evidence is to be recorded in
his presence; (2) of making statement in defence (3)
cross-examination of the witnesses whose evidence is
likely to affect his character or military reputation. It is
the judgment of the person whose reputation is in
danger to testify as to whether an evidence of a
particular witness is likely to affect his character or
military reputation, and (4) such a person has a right
to produce evidence in defence of his character or
military reputation. It is the mandatory duty of the
presiding officer not only to make all these
opportunities available to the person whose character
and military reputation is at stake but no that such
person is fully made to understand all the various
rights mentioned in that said rule.
It has been held by this Court in Maj Harbhajan
Singh Vs. Ministry of Defence and Ors., 1982 (Vol.21)
LLT 262, and by Supreme Court in Lt. Col. Prithi Pal
Singh Bedi Vs. UOI and Ors., Capt. Dharam Pal Kukrety
and Ors. Vs. UOI and Ors., and Capt. Chander Kumar
WP(C)No. 3904-07
Chopra Vs. UOI and Ors., AIR 1982 SC Page 1413 that
the requirements of Rule 180 are mandatory. The
reason for making Rule 180 as mandatory is that it
incorporation the principles of natural justice which
alone can ensure a fair trial to a person whose
character or military reputation is in danger. It is now
well settled law that even in administrative action the
principles of natural justice must be observed because
the administration is obliged to follow fair play in
action when it is dealing with the character and
reputation of a person. The rule is eminently in public
interest. There is one other reason why the
requirements of Rule 180 are to be strictly interpreted,
the normal protection of fundamental rights of an the
provisions of Article 311, available to the civil servants
under the Union or a State are not available to military
personnel. The army personnel must maintain high
degree of efficiency and preparodnoss at all the times
and the same cannot be maintained effectively unless
every member of the armed forces is able to see fair
play in action. It is admitted by the respondents that
the requirements of Rule 180 were not complied with
and the petitioner was denied opportunity of cross-
examining the witnesses....."
30. Similar view was taken in authorities reported in UOI and
others Vs. Rajbir Singh Khanna and another, AIR 2001 SC 3327,
Lt. Col. Prithi Pal Singh Bedi Vs. Union of India and others, AIR
1982 SC 1413.
31. In the result, we hereby find that all the proceedings
initiated by the respondents in respect with awarding recordable
censure against the petitioner are liable to be quashed as they
are a result of utter violation of mandatory AR 180.
WP(C)No. 3904-07
32. The next point, which must be borne in mind is that even, if
the proceedings of the respondents are presumed to be valid and
legal, the punishment of recordable censure should not have
come in the way of the promotion of the petitioner. In Union of
India and others Vs. Brig. J.S. Sivia, MLJ 1996 SC 3, it was held :
"7. The latest Army Order on the subject of Award of
censure to Officers is dated January 5, 1989. The
relevant paragraphs 2, 5, 6, 8, 9, 10, 13 and 21 are
reproduced hereunder:
"2. The award of censure to an officer of a JCO
is an administrative action, in accordance with the
custom of the service. It takes the form of „Severe
Displeasure‟ (either recordable or otherwise) or
„Displeasure‟ of the officer award the censure, as
specified in succeeding paragraphs.
5. Censure is awardable where the act,
conduct or omission is of a minor nature, both in
nature and gravity. An offences of serious nature
under the Army Act will not be disposed of by an
award of censure but will be dealt with by initiating a
disciplinary action. Attention, in particular, is invited
to Para 432 of the Regulations for the Army, 1962,
which stipulates that "persons committing offences
involving moral turpitude, fraud, theft, dishonesty and
culpable negligence involving financial loss to public or
regimental property must be tried by a court martial
or prosecuted in a civil court. Such cases will not be
disposed of summarily or by administrative action." In
view of the foregoing, there should be no occasion for
offences involving moral turpitude, misappropriation,
financial or other offences of serious nature being
dealt with by award of censure when disciplinary
action is possible/feasible. If for some reason, a case
of this nature does come across, where trial is
inexpedient or impractical, administrative action for
WP(C)No. 3904-07
termination of service of the delinquent persons
should be initiated.
6. Cases which are not of minor nature and
which do not involve moral turpitude, fraud, theft, and
dishonesty and where trial of GCM is either not
practicable being time barred or is not expedient due
to other reasons, may in appropriate cases be
discretion of the GOC-in-C be forwarded to Army
Headquarters (D&V Dte) for consideration to award of
censure by the COAS, so as to avoid resorting to the
extreme step of action under the provisions of Army
Act Sec 19 read with Army Rule 14.
8. Censure in the form of „Severe Displeasure‟
or „displeasure‟ awarded by the Central government
will remain permanently with the dossier of the officer
or the JCO so censured.
9. „Severe Displeasure‟ of the Chief of Army Staff
will remain with the dossier of the officer or the JCO
concerned permanently.
10. Award of a „Severe Displeasure‟, by a
General Officer Commanding in Chief, or a General
Officer Commanding a Corps (not below the rank of Lt
Gen) of Director General Assam Rifles (not below the
rank of Lt Gen) will be recorded with the dossier of an
officer or a JCO only where a specific direction that the
censure be so recorded (recordable censure) is
endorsed.
13. The award of a censure does not debar an
officer from being considered for promotion and may
not be itself affect his promotion. However, while it is
operative, it is taken cognizance of as part of the
officer‟s overall record of service in assessing his
performance for such promotion. The effect of a
recordable censure on promotion would be considered
in its totality on the overall performance. A censure
ceases to have any effect on promotion once it is
inoperative as given in paras 21 to 22 below.
WP(C)No. 3904-07
21. Recordable Censure on „Severe
Displeasure other than those Awarded by the
Authorities at Paras 8 to 9 above. A censure of
„Severe Displeasure‟ (to be recorded) awarded by
General Officer Commanding in Chief or a General
Officer Commanding Corps (not below the rank of Lt
Gen) or Director General Assam Rifles (not below the
rank of Lt Gen) will remain operative for three years
from the date of award after which it will automatically
lapse and the record expunged from the dossier of the
officer or the JCO concerned under intimation to the
individual."
8. It is obvious from various documents mentioned
above that the award of censure is being regulated by
"Customs of the service". The Army Order dated
January 24, 1942 takes us to August 26, 1927 and as
such there is reasonable basis to assume that the
award of censure is being governed by the "Customs
of the service" right from the inception of the Indian
Army. That being the position the award of censure is
the binding rule of the army service. Section 3(v) of
the Act and Regulations 9 of the Regulations recognize
the existence of "customs of the service". The
definition of "Commanding Officer" clearly says that in
the discharge of his duties as a Commanding Officer,
he has to abide by the "customs of the service".
Similarly Regulation 9 which lays down the duties of
the Commanding Officer, specifically says that the
Commanding Officer has to discharge his functions
keeping in view the regulations and the „customs of
the service‟. From the scheme of the Act, Rules,
Regulations and the various Army orders issued from
time to time, it is clear beyond doubt that the award of
censure is part of the custom of the Army and has the
binding force."
33. Last but not the least it is notable that the court of inquiry
did not find any evidence of any misappropriation of the funds in
WP(C)No. 3904-07
question. Para no. 13 of the court findings is reproduced as
follows :
"13. The completed Static Water Tank of 585 KL,
construction of two class rooms with ancillaries and
construction of boundary wall around it through works,
amounting to a total of Rs.16,43,700/- approximately,
supplemented by Regimental Funds for other facilities,
amounting to Rs.8,77,156/-, was thus converted into a
swimming pool. The total cost incurred was
Rs.25,20,856/- approximately. (Witness No. 2,
Paragraph No.3, Witness No.3, Paragraph No.2). There
is no evidence of any misappropriation of funds."
34. In the result, we accept both the writ petitions, wherein it is
ordered that the recordable censure order and the connected
proceedings are hereby quashed and we direct the
respondents/competent authority to reconsider the question of
promotion of the petitioner within 60 days from the date of this
order and in case the petitioner is found to be fit for promotion,
he be given the promotion prior to a date when his juniors were
promoted with all the consequential benefits. There shall be no
order as to costs.
CM No.7232/2007(stay) in WP(C) No.3831/2007
In view of the orders passed in the writ petition, no further
orders are required to be passed in this application. The same is
disposed of accordingly.
WP(C)No. 3904-07
CM No.7365/2007(exemption) in WP(C) No.3904/2007
Allowed, subject to just exceptions.
J.M. MALIK, J.
June 02, 2008 A.K. SIKRI, J.
dk
WP(C)No. 3904-07
