Lt Col Naresh Dahiya vs Uoi And Ors
2015 Latest Caselaw 9489 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Reserved on: 08.10.2015
%                                          Decided on : 21.12.2015
+     W.P.(C) 7908/2011

       LT COL NARESH DAHIYA                         ..... Petitioner
                     Through: Sh.S.S.Pandey with Sh.H.S.Tiwari,
                              Advocates
                     versus
       UOI AND ORS                               ..... Respondents

Through: Ms.Monika Arora, CGSC with Sh.Gaurav Upadhyay and Sh.Harsh Ahuja, Advocates for Respondents no.1 to 4.

Major Jitender Singh, JAG Branch, Indian Army.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA

MS. JUSTICE DEEPA SHARMA (JUDGMENT)

1. The petitioner joined the Indian Army on 15.12.1984 and was

promoted to the rank of Major in 2001. He was posted as Officer

Commanding (OC), 530, Stores Supplies and Transport Company i.e. SS &

TC (GREF), Project HIRAK, located at Bhandara (Maharashtra).

2. In brief, the facts necessary for disposal of the present writ petition

are that in April, 2002, the process of auction for disposal of unserviceable

vehicles/equipments/plants and other salvage stores lying under the custody

of 530, SS &TC (GREF) at Bhandara was initiated by the Chief Engineer,

W.P.(C) No.7908/2011 Page 1 Project HIRAK, he being the competent authority. The auction was

scheduled for 09.08.2002. For the said auction, a catalogue showing details

of 12 lots containing all class DEE/V/E/P and other salvage stores held with

530, SS & TC (GREF) was prepared and forwarded to HQ (P) HIRAK

during the last week of April, 2002. On the basis of cost details of salvage

stores in the auction catalogue, the Board of Officers convened by HQ (P),

HIRAK determined the MRP. The auction process was completed but on

being informed about an irregularity in the auction, the successful bidders

were not allowed to collect the salvage stores. The HQ Chief Engineer,

Project HIRAK on 23.08.2002 sent the case to HQ DGBR. A Court of

Enquiry (COE) was ordered which found that the residual value of one

TATA load Carrier in Lot No.10, was wrongly entered as `53,200/- whereas

the residual book value was `1,06,300/- which had the effect of low

valuation of MRP and a consequent reduction in the RGP and thus in

lowering the highest bid amount. It was also noticed that that the signatures

of the second highest bidders and other unsuccessful bidders on the bid

sheet, in violation of the terms of amended Standard Operating Procedure

(SOP) dated 07.02.2002 were not obtained; further signatures of the actual

persons against the Sl.No.32, 33 and 34 of the Gate Money register and

W.P.(C) No.7908/2011 Page 2 caution money register were missing. The Court of Enquiry found the

petitioner responsible for such lapses. Disciplinary proceedings were

initiated against him and a tentative charge sheet was issued on 29.09.2003

for the offences under Section 52 (f) and 63 of the Army Act. Copies of the

entire record of the Court of Enquiry was supplied to the petitioner and

hearing of charge under Rule 22 of Army Rules, 1954 began on 29.09.2003

in the presence of petitioner where he was given full liberty to cross examine

the witnesses and produce defence witnesses. The proceedings under Rule

22 concluded on 15.12.2003 and the Commanding Officer directed

recording of summary of evidence. After the recording of summary of

evidence, the competent authority decided to summarily try the petitioner

and charge sheet was issued to him on 03.10.2004 for offences under

Section 52 (f) and 63 of the Army Act. During summary trial the petitioner

admitted his guilt which was recorded in Form 1 of Appendix A. The

petitioner was awarded punishment of reprimand by order dated 06.10.2004.

His statutory complaint dated 22.09.2006 was dismissed on 29.01.2010.

3. The petitioner has challenged the orders dated 06.10.2004 and

29.01.2010 in this writ petition on several grounds.

W.P.(C) No.7908/2011 Page 3

4. We have heard the arguments and have given considerable thought to

the rival contentions and arguments.

5. The petitioner challenged the enquiry mainly on two grounds. First,

that it is in violation of prescribed procedure, and that there is no evidence

against him; that his plea of guilt was obtained on the assurance that the

punishment of reprimand would be operative only for three years--allowing

it to continue beyond that and denying him his time scale promotion makes

the punishment disproportionate to his alleged misconduct. Although not

contended in the writ petition but during the course of argument, it was

urged that there has been gross violation of Rule 180 of Army Rules 1954

(hereinafter referred to as "the rules"). It is submitted that the Court of

Enquiry was neither recorded in his presence nor was he given an

opportunity to cross-examine the witnesses. This being the case, the entire

proceedings stands vitiated.

6. Reliance was placed on Lt. Gen. Surendra Kumar Sahni vs. Chief of

Army Staff and Ors. 2007 Law Suit (Del) 2065. It is urged by the

respondents that not only was the contention raised by the petitioner at a

very late stage, but also that Rule 180 is inapplicable in this case since no

Court of Enquiry had been ordered into the character or the military

W.P.(C) No.7908/2011 Page 4 reputation of the petitioner to begin with. It is submitted that Court of

Enquiry was convened to investigate into the following issues:-

(a) Allegation made by the purchasers vide their letter dated 29 Aug 2002 that 530 SS &TC verbally refused to issue the stores.

(b) Allegation made by Shri Umakant Agnihotri in Lokamat Samachar dt. 22 Aug 2002 as under:

(i) Cost of the sold stores is approx Rs.60 lacs (Rupees Sixty Lacs) which has been Auctioned only for Rs 16 lacs (Rupees Sixteen Lacs)

(ii) Publicity of Auction not done as per laid down policy.

(iii) Forming of Group by purchasers by paying Rs. 2 Lacs (Rupees Two Lacs) to local bidders.

(iv) Auction has been carried in shift i.e. on 26 July & 09 Aug 2002.

(v) Shiva Sena workers forced the purchasers to leave the issued stores in the premises of 530 SS & TC.

This shows that there was no enquiry into the character or the military

reputation of any person. It was purely a fact finding enquiry, and even

during the Court of Enquiry, no witness had deposed anything which would

have any repercussion on the character, or the military reputation of the

petitioner. The petitioner was also aware of this fact and he had

acknowledged it in his letter dated 09.09.2003 wherein he stated that "none

of the witnesses has pointed any finger on him in the Court of Enquiry

proceedings (sic)". It is only on the completion of the Court of Enquiry that

W.P.(C) No.7908/2011 Page 5 the lapses and the officers, including the petitioner responsible for such

lapses were identified. It was only on the basis of the fact finding done by

the Court of Enquiry that further action was proposed against the petitioner.

7. We have considered the rival contentions. It is a settled principle of

law as has been laid down in various pronouncements (Ramesh Mohan (Lt.

Col) vs. Union of India 2010(4) JKJ 123; A.R. Malhotra (Major) vs.

Union of India and Ors. 2010(3) JKJ 812 and Lt. Gen Surendra Kumar

Sahni vs. Chief of Army Staff and Ors. 2007 Law Suit (Del) 2065, that the

proceedings under Rule 180 are in the nature of enquiry and are mandatory

in nature when the character or the military reputation of a person against

whom, a Court of Enquiry has been proposed is in question. However, in

the case of Lt. Colonel Ramesh Mohan (supra), it was clearly held that

where the enquiry is to find out as to who has committed an offence or

where the manner of committing the offence is not certain, then there can be

no question of even thinking that the person concerned is likely to be

prosecuted in future and in such cases, there is no requirement of

compliance of Section 180 of the Rules, as in such cases, it is merely a fact

finding enquiry. In A.R. Malhotra (Major) (supra), the Court held that

during a Court of Enquiry which is in the nature of fact finding, if certain

W.P.(C) No.7908/2011 Page 6 facts come on record which one likely to affect the character or military

reputation of a person, then in such eventuality, even at that stage, such

should be given an opportunity to cross-examine the witnesses recorded and

witnesses desired by him to be cross-examined. The Court summarized the

law as under:-

"23. Reading the provisions, it is very clear that it is not contemplated that even when it is not certain to the Commanding Officer as to who has committed the offence or the matter of committing the offence is not certain, yet he has to give audience to the person(s). There is no question of even thinking that the person concerned is likely to be prosecuted in future, should be informed. Only Rule 180 contemplates that if enquiry is conducted, which affects character or Military reputation of a person subject to the Act, full opportunity is to be given. Thus, when it is certain that a particular person has committed a wrong and his act or omission is likely to affect the character or military reputation, then opportunity is to be given.

24. We have discussed the facts in detail. No where name of appellant appears. It is 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

W.P.(C) No.7908/2011 Page 7 of evidence and to make report only. When it is not certain as to who are the person 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 and fully understands his rights under this rule.

26. It is required to be noted that the Act and the Rules laid down the object and procedure of the Court of Inquiry. This is the only mode of ascertainment of fact at the pre-charge level contemplated by the law. The Commanding Officer has no authority to record a finding of fact. It is well known that the investigation is only preliminary step and information is being gathered on evidence, if there is sufficient material, the charge is to be laid. The court, at the state of trying the officer, is not concerned as to in what manner, the case was investigated. This is known that where a statutory remedy is provided, the court should be loath not to interfere in the order of authorities to whom special jurisdiction has been conferred by statute.

27. The matter is at the state of investigation. Only after collection of evidences, a decision could be taken whether prima facie case has been made out against a person or not. When the matter is at the stage of investigation of the purpose of finding out as to whether crime is committed or not and if committed, by whom, then in such a case, accused has no right to participate. It is in this back ground the case is required to be considered."

W.P.(C) No.7908/2011 Page 8

8. In the present case it is clear from the convening order of the Court of

Enquiry that the enquiry was aimed at finding out of the lapses in the

auction, the reasons and the persons responsible for the same. The Court of

Enquiry therefore was a fact finding enquiry and not an enquiry affecting the

character or military reputation of the petitioner. Even during the entire

Court of Enquiry, no evidence affecting the character or military reputation

of the petitioner had come on record. This fact itself is acknowledged by the

petitioner in his letter dated 09.09.2003. There is, therefore, no violation of

Rule 180 in this case.

9. The petitioner has claimed that he was not given the statutory time

envisaged in Rule 34 for preparing his defence. The plea of the respondents

is that he was given due opportunity to produce his defence and though the

petitioner had initially sought time to examine six witnesses, he later on

dropped the witnesses and pleaded guilty of charges in the summary trial,

hence there was no violation. These facts clearly show that after record of

evidence, before the trial could begin, the petitioner had pleaded guilty of

the charges and during the recording of evidence he had refused to examine

his listed six witnesses. Hence there could not have been any violation.

W.P.(C) No.7908/2011 Page 9

10. The petitioner further contended that the Commanding Officer under

Rule 22 of Army Rules, 1954 acted in violation of said rule as he should

have dismissed the charges when there was no evidence on record against

the petitioner but instead he, referred the matter to the higher authorities and

continued the hearing under the orders of such higher authorities. It is

argued by the learned counsel for respondents that this argument of the

petitioner also has no force because Rule 22(3)(6) authorizes the

Commanding Officer to seek the opinion of higher authority. In view of rule

22(3)(6), the argument of the petitioner is not tenable. The petitioner also

claims the violation of Rule 182 contending that the evidence recorded

during Court of Enquiry was used by Enquiry Officer. There is, however,

nothing on record to show that the proceeding of the Court of Enquiry has

been used as evidence against the petitioner since he was held guilty on his

admission of guilt. The petitioner has also claimed the violation of Rule 26

on the ground that his plea of guilt does not bear his signatures. Learned

counsel for the respondent has denied the violation of any Rule in recording

plea of guilt during the summary trial proceedings and argued that it was

done in terms of the prescribed procedure and the plea of the petitioner's

guilt was recorded in form 1 of Appendix A of the Rules. It is apparent from

W.P.(C) No.7908/2011 Page 10 the record and arguments addressed before this Court that the petitioner did

not at any stage urge that he did not plead guilty, but rather admitted that he

had pleaded guilty. He, however, has qualified his admission by saying that

he did so on some assurance by respondents. Appurtenant to these

circumstances, it cannot be said that the petitioner's plea of guilt was

wrongly recorded.

11. It is further urged by the petitioner that he could not have been

punished even on his admission of guilt because there was no evidence on

record against him and also, that his plea of guilt was motivated by

assurance given. The plea of respondent, on the other hand, is that the

particular document (auction catalogue and bid sheet) itself proves the

charges against the petitioner. As per SOP, it was the primary duty of the

petitioner to prepare the auction catalogue as per store. Counsel for the

respondent also reiterates that the plea of guilt was voluntary, and no

assurance of any nature as asserted by the petitioner was given. The first

charge relates to the noting of book value of auction item TATA Load

Carrier as Rs.2,81,056/- while its actual book value was Rs. 446832/- and

residual value as Rs.53,200/- while it should have been Rs.1,06,300/- which

led to fixation of MRP at low value and consequently reduction in RGP

W.P.(C) No.7908/2011 Page 11 which led to lower rate of bidding amount. The second charge relates to an

omission prejudicial to good order and military discipline which relates to

not obtaining the signatures of the second highest bidder and any other

unsuccessful bidder as witness on the bid sheet as per SOP of DGBR dated

21st February, 2002. There is no dispute that in the auction catalogue the

book value and residential value of Tata Load Carrier in lot No. 10 was not

in terms of the actual record available with project HIRAK of which the

petitioner was the officer-in-command. The only issue is if it was the

responsibility of the petitioner to prepare the said catalogue. The said

auction was to be conducted as per the procedure prescribed in SOP dated

07.02.2002. Rule 7 of the said SOP bears a duty on the project in-charge to

prepare six copies of the auction catalogue. Thus, the petitioner being in-

charge of the Project HIRAK had to prepare six copies of the catalogue. It

was thus his duty to mention all the details of store in the catalogue. Under

valuing the residual value and book value of TATA Load Carrier in lot

No.10, as Rs.53,200/- and Rs.281056/- respectively led to wrong

determination of MRP by the Board constituted for that purpose, which

resulted into fixation of lower RGP and consequently lowering the bidding

amount. Clause 8 of SOP prescribes the manner in which 6 copies of the

W.P.(C) No.7908/2011 Page 12 catalogue are required to be distributed. Copies 1, 2 and 3 had to be retained

by the Project Headquarter and copy no. 4 be sent to the auctioneer for

publicity and copy no.5 was to be handed over to the Presiding Officer of

the Auction Supervisory Board and Copy no. 6 was to be sent to HQ DGBR

with endorsement of guide/reserve price and this was required to be retained

in safe custody of officer concerned in HQ DGBR. The procedure further

requires that the CE Project should then tally each and every item on ground

to put his endorsement on all the three copies i.e. Copy No. 1,2 and 3. Copy

No. 1, thereafter, was required to be forwarded to HQ DGBR and Copy No.

2 to be retained by CE of the Project and Copy No. 3 is required to be

handed over to the Stockholder. The SOP clearly places primary

responsibility on the petitioner to prepare the catalogue and then distribute

it. Being In-charge of the Project, it was his duty to ensure that all details of

the stores were mentioned in the Catalogue properly. He could not absolve

his responsibility on the plea that others who had checked the catalogue

should have noticed it and corrected it. As regard the second charge, the

record shows that the signature of second highest bidder and one

unsuccessful bidder were missing on bidding sheet. Thus the plea that there

is no iota of evidence to frame charge is not sustainable.

W.P.(C) No.7908/2011 Page 13

12. The contention of the petitioner that he had pleaded guilty on the

assurance that the punishment of reprimand would remain operative only for

three years also does not find support from any material on record. This

contention therefore is also not tenable.

13. The other plea raised by the learned counsel for the petitioner is that,

allowing the punishment of reprimand to be used against him even for

denying him his time scale promotion to the rank of Colonel, makes it

unduly harsh and disproportionate in the light of the fact that no loss of

exchequer had occurred to the Government of India or to any other person

and that during the hearing of the charge proceedings before the

Commanding Officer, the witnesses had only narrated the auction procedure

and none of them had made any incriminating statement against him. That

except the petitioner, no action was taken against any other personnel

involved in the auction, despite the fact that Court of Enquiry proceedings

found others responsible as well. He stated that even it was for the reason

that the Commanding Officer did not find any case against him, that he

sought the opinion of senior officer. It is also urged that he had in his

statement in the Court of Enquiry clearly stated that it was just a

clerical/typographical mistake by which book value and residual value of

W.P.(C) No.7908/2011 Page 14 Tata Load Carrier was recorded at lower side, which fact stands

corroborated that in the catalogue the book value and residual value of some

other articles were was shown on higher side. The learned counsel for the

petitioner has brought out attention to a letter dated 01.10.2003 written by

Commanding Officer during hearing on charges under Rule 22 and has

relied on para 7 of the letter. The same is extracted as under:-

"7. Taking an overall view of the whole case, especially after listening to the prosecution witnesses who have pleaded complete ignorance of commission of the offences alleged in the charges, as listed in Appx 'A', I am in doubt that I can take any further action based on the hearing of charge meaning thereby, that no case exists against the offr. However, considering the admission of the offr. in the C of I in his answer to question No.1, recorded on Page 25 therein that it may have been a clerical mistake, the case could be disposed off by adm action at your level or as deemed fit by you, in respect of charge 1. In respect of other two charges there are procedural lapses of trivial nature and can also be disposed off by adm action."

14. It is argued that thereafter too no fresh evidence emerged. It is

submitted that the petitioner was penalized solely on the basis of his

admission of guilt, while it was purely a typographical/clerical error. It is

submitted that the omission to obtain the signatures of the second highest

bidder and other unsuccessful bidder, on bidding sheet was not a deliberate

act and was due to oversight and that no one benefitted or suffered due to

W.P.(C) No.7908/2011 Page 15 this lapse and even during hearing of charged CO recognized this fact that it

was a trivial matter and in the light of these facts denial of his time scale

promotion is a very harsh punishment. It is prayed that the order of

reprimand should not be allowed to remain operative for the rest of his

service tenure resulting into denial of his time scale promotion.

15. It is a settled proposition of law that the courts, under Article 226 of

the Constitution of India can review an administrative order. However, the

Courts cannot question the decision made by any authority but can only

assess whether while reaching said decision, the prescribed procedure has

been duly followed or not and whether the principles of natural justice have

been observed. However, the Courts also retain the power of judicial review

vis-à-vis the penalty imposed where the facts and circumstances of the case

demonstrates that such order is unduly harsh or shockingly disproportionate.

The courts can either substitute a penalty or send the matter back to the

authorities for reconsideration and imposition of appropriate penalty. (B.C.

Chaturvedi vs. Union of India (1995) 6 SCC 749). The question of

proportionality in awarding punishment under the Army Act was in issue

before the Supreme Court in Ranjit Thakur v. Union of India and Others,

(1987) 4 SCC 611 and the Court has observed as under:-

W.P.(C) No.7908/2011 Page 16 "The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court- martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."

16. The penalty can be said to be shockingly disproportionate if it is not

commensurate with the facts and circumstances of the case i.e. where no

reasonable man would have, in the given circumstances of the case, imposed

such a penalty. Although the Supreme Court has highlighted through its

various pronouncements that such power is to be exercised by the Court

sparingly it has also allowed the Court to use such powers in appropriate

cases where the Court feels that as a consequence to that penalty, the

delinquent has been put to a disadvantage of a nature which certainly was

not contemplated while imposing such penalty, given the nature of the

charges and other circumstances of the case. In the present case, although

the petitioner had pleaded guilty of the charges but the fact remains that

even the commanding officer hearing the charges under Rule 22, was

W.P.(C) No.7908/2011 Page 17 ultimately of the opinion, as is clear from para 7 of his letter dated 1.10.2003

that the charges leveled against the petitioner were of trivial nature and

could be handled administratively. It is also a fact that while in the

catalogue the book value and residual value of TATA Load Carrier was

shown at lower side, the book value and residual value of certain other

articles were shown at higher side. There is no evidence on record which

could show that the petitioner had deliberately mentioned the book value

and residual value of TATA Load Carrier in the catalogue with an intention

to cause any benefit to himself or any other person. In such circumstances,

while the punishment of reprimand in itself is not disproportionate to the act

of omission and commission on the part of petitioner, its consequent effect

of denial of time scale promotion to the petitioner certainly operates in

disproportionate and unduly harsh manner. This is especially because except

for this incident, the petitioner had never been punished for any misconduct

during his entire service tenure. It is also a fact that in view of the AV

Commission Report, the petitioner who was a Major was promoted to the

rank of Lt. Colonel despite this punishment, but was denied his time scale

promotion to the rank of Colonel on account of the punishment. It is also

clear from the record that the respondents kept the statutory complaint of the

W.P.(C) No.7908/2011 Page 18 petitioner pending for about four years and during this period had denied the

time scale promotion to the petitioner. This was an unwarranted act on the

part of the respondent.

17. In view of the circumstances of this case and the above discussion, we

are of the opinion that the order of punishment of reprimand operates in an

unduly harsh manner and shocks the conscience of this Court when used by

the respondents for denying the time scale promotion to the petitioner. We

accordingly direct the respondents to ignore the order of reprimand while

considering the case of the petitioner for his time scale promotion to the post

of Colonel. He shall be considered for the said promotion if he is otherwise

eligible. The writ petition is allowed in the above terms with no order as to

costs.

DEEPA SHARMA (JUDGE)

S. RAVINDRA BHAT (JUDGE)

DECEMBER 21, 2015 rb/sapna

W.P.(C) No.7908/2011 Page 19